Leeward Nursing Home

National Labor Relations Board - Board Decisions

Mar 20, 1986

278 N.L.R.B. 1058 (N.L.R.B. 1986)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leeward Nursing Home and Hawaii Teasmsters and
Allied Workers Union , Local 996 , IBT. Cases
37-CA-1936 and 37-CA-1996
20 March 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 3 August 1984 Administrative Law Judge
Timothy D. Nelson issued the attached decision.
The General Counsel filed limited exceptions and a
supporting brief, and the Respondent filed a memo-
randum of law in opposition to the General Coun-
sel's exceptions.
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 brief and has
decided to affirm the judge 's rulings, findings, and
conclusions ' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I Members Dennis and Johansen do not adopt the judge 's decision to
the extent it may be interpreted as finding that the charge in Case 37-
CA-1996 was legally insufficient to support the complaint allegations
concerning Chang's postsettlement discipline.
Nancy E. Watson, Esq., for the General Counsel.
Barry W. Marr, Esq., of Honolulu, Hawaii, for the Re-
spondent.
John R. Desha, Esq., of Honolulu, Hawaii, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON , Administrative Law Judge. I
heard these consolidated cases arising under Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(Act), during 9 days of trial proceedings in Honolulu,
Hawaii , in the weeks of January 23 and 30 and March 5,
1984 . They derive from unfair labor practice charges
filed serially by Hawaii Teamsters and Allied Workers
Union , Local 996, IBT (Union ), against Leeward Nurs-
ing Home (Leeward or Respondent).
The Union filed original charges in Case 37-CA-1936
on September 9, 1982 . The parties later signed a settle-
ment agreement in that case which was approved by the
Regional Director for Region 20 on October 28, 1982.
The Union filed separate charges in Case 37-CA-1996
on January 3, 1983, later amending them May 23, 1983.
The charges in Case 37-CA-1996 also named a subcon-
tractor, ARA Services , apparently maintaining that Lee-
ward and ARA were jointly liable for the charged unfair
practices as "joint employers ." After an investigation of
these later charges , the Regional Director for Region 20
withdrew his approval from the earlier settlement by
order dated June 30 , 1983. On the same date he issued an
order consolidating cases, consolidated complaint, and
notice of hearing in both cases, but naming only Lee-
ward-not ARA Services-as a party respondent. Addi-
tional amendments to the consolidated complaint were
issued on January 9, 1984, by the Regional Director.
More extensive and substantial amendments were offered
by the Counsel for the General Counsel during her trial
presentation.
Before those trial amendments were tendered, the
complaint had alleged , in substance , as follows:
1. Respondent violated Section 8(a)(1) of the Act by:
(a) Various acts of interrogation and threats relating to
the Union 's organizing drive (which began in mid-
August 1982). With one exception ' all such acts were al-
leged to have occurred well before the October 28, 1982,
settlement.
(b) Maintaining since January 1982, an unlawfully re-
strictive set of rules pertaining to the posting or distribu-
tion of literature and to soliciting.
2. Respondent unlawfully discriminated against em-
ployees in violation of Section 8(a)(3) of the Act by:
(a) Subcontracting to ARA Services on December 7,
1982, the work formerly performed by Respondent's die-
tary and housekeeping employees and by terminating
seven-named employees formerly doing those jobs.2
(b) Discharging employee Emma Chang on December
17, 1982.9
(c) Discharging Barbara Bustamante on April 26, 1983,
3. Violating Section 8 (a)(5) of the Act by (a) (Gissel
theory) refusing to recognize and bargain with the Union
after being requested on August 31, 1982, to do so; and
' The exception related to an alleged transaction between Respondent's
agent Toyama and employee Barbara Bustamante on April 26 , 1983, at
the time that Bustamante, an alleged discriminatee , was fired.
1 It deserves note here that the complaint does not directly challenge
the acknowledged fact that all (i.e., more than seven) of Respondent's di-
etary and housekeeping employees were terminated in connection with
the subcontracting; rather , it alleges only that the termination of some of
them (i.e., those not rehired by ARA Services ) violated the Act. Thus, as
specifically alleged , the theory of violation here is that Respondent sub-
contracted work and terminated the named employees "because the em-
ployees named . . . joined , supported or assisted the Union and engaged
in [Section 7 protected concerted activities]." And the General Counsel
argued at the trial-and on brief-in substance , that the subcontracting
was a contrivance by which Respondent could ensure that only those
named (alleged union adherents) would not remain employed on the
premises-indeed , that Respondent induced ARA Services not to rehire
the named employees . As noted above , however , ARA Services has not
been named as a law violator in the complaint , nor, so far as this record
shows, was it given separate notice of these proceedings and an opportu-
nity to participate-matters which will affect the proper scope of inquiry
into the subcontracting-related allegations and which would be seemingly
fatal to the possibility of a full remedy for these alleged violations, all as I
discuss elsewhere below.
0 More precisely, the June 30 , 1983 consolidated complaint had alleged
that Chang was fired on November 6, 1982 . The January 9, 1984 written
amendments included an amendment to reflect the "correct date of
Emma Chang's discharge as January 17, 1983 ," but, at the outset of the
trial on January 24, 1984 , Chang 's termination date was again amended,
without objection , to "December 17, 1983."
278 NLRB No. 157
LEEWARD NURSING HOME
under circumstances where Respondent 's other alleged
unfair practices made it unlikely or impossible that a
Board election could fairly reflect the uncoerced desires
of employees as to representation.4
After the General Counsel had begun her presentation
of evidence it soon became evident that she was seeking
to prove that Respondent engaged in additional actions
which would constitute independent unfair labor prac-
tices, all occurring within the 6-month limitations period
prescribed in Section 10(b) of the Act . Confronted with
objections to attempts to litigate such previously nonal-
leged matters , the General Counsel initially disclaimed
any desire to have such matters determined as statutory
violations ; rather, she argued that they should be heard
as "background " which could inform my disposition of
the unfair practices which were alleged in the complaint.
Some of these "background" subjects involved addi-
tional threats or interrogations occurring at or around
the same period in which similar conduct was alleged to
violate Section 8(a)(1). Of greater significance , however,
were the General Counsel 's attempts to introduce evi-
dence that Respondent had taken discriminatory action
against alleged discriminatees Chang and Bustamante at
times well before their eventual discharges (the latter
being the only actions expressly attacked in the com-
plaint relating to Chang and Bustamante). The General
Counsel at first argued that such "pre-discharge" treat-
ment (in the form mostly of written disciplinary action
and other adverse treatment of those employees months
before their discharges) need not have been separately al-
leged as violations of the Act because they were "part
and parcel"b of the discharge actions ultimately taken
against those employees.
This by-now-familiar argument made in connection
with the recurring phenomenon of attempts by agents of
the General Counsel to litigate nonalleged violations fall-
ing within the 10(b) period deserves digressive comment.
Such recurring practices are often fundamentally
unfair-even "unjust" within the meaning of the Board's
recent decision in Seaward International, 270 NLRB 1034
(1984). It is not enough for the General Counsel simply
to make a disclaimer that the evidence sought to be in-
troduced is merely for "background ." Such a disclaimer
does not lessen the burden on a respondent who, without
prior notice that such conduct is being called , into ques-
tion, must necessarily defend against the nonalleged
matter or risk a finding that it was guilty of such wrong-
ful conduct-a finding which may well influence heavily
the judgment to be made on the ultimate question wheth-
er the respondent has commited the violations which
were specifically pleaded in the complaint. And, to' add
to a respondent 's dilemma in such circumstances, if he
elects to come forward to meet the evidence of such
"other crimes," the matter may be found by the Board to
have been "fully litigated" and thus render the respond-
ent vulnerable to a Board order even as to such nonal-
4 The complaint alleges that a bargaining obligation exists between Re-
spondent and the Union with respect to all employees in'the unit as it
existed before the subcontrating, but it contains no prayer for a restora-
tion of the presubcontracting unit.
5 The transcript erroneously reads "part and partial" in all instances
where the phrase was used. It'is hereby ordered corrected.
1059
leged misconduct. Moreover , such practices will regular-
ly have
-?,
-disruptive effects on the ability of the
judge and other parties to conduct an orderly trial pro-
ceeding . As herein , witness testimony may need to be in-
terrupted , or cross-examination deferred , or the entire
matter may require rescheduing in order to ensure that
Respondent has been afforded full due process.6
In sum , the, practice of seeking to litigate as "back-
ground" aspects of a respondent 's behavior which would
constitute independent , 10(b) reachable, violations of the
Act carries great potential for mischief, if not injustice.
Especially where, as here , all such nonalleged matters
were admittedly known to the General Counsel at the
time the original complaint issued , the question arises
whether there was any legitimate reason at all for the
General Counsel 's failing to include them in that com-
plaint from the start . While this may have derived simply
from oversight , such failures are all too common in our
proceedings . It is thus respectfully submitted that current
pleading practices within the office of the General Coun-
sel should be reviewed with an eye towards minimizing
injustice , disruption of proceedings , and other abuses
which will predictably result from the failure to plead at
the outset all of the violations which the General Coun-
sel's field investigation has disclosed and which the Gen-
eral Counsel will in any case seek to litigate.
After similar observations were made in colloquy
among counsel and the bench , counsel for the General
Counsel reviewed her investigative file and eventually
tendered numerous additional amendments . While these
were greeted by Respondent 's counsel with vigorous ob-
jection, I nevertheless granted them, acting from con-
cerns outlined above, and making special provision for
the deferral of cross-examination of witnesses Chang and
Bustamante and for a roughly 30-day continuance of pro-
ceedings before Respondent was required to come for-
ward to meet the amended complaint.
As thus ultimately amended , the complaint alleges that
Respondent committed violations in addition to those al-
ready set forth in substance as follows:
1. Two additional instances of threats or interrogations
by newly named agents of Respondent in August and
September 1982 , violative of Section 8(a)(1).
2. Violations of Section 8(a)(3) by discriminatorily:
(a) Issuing a disciplinary warning to Barbara Busta-
mante on August 30, 1982.
(b) Issuing a 4-day suspension to Barbara Bustamante
in early September 1982.
6 These appear to be the only devices practically available to adminis-
trative law judges to ensure a fair trial. There is a hypothetical alterna-
tive-simply to refuse to hear such evidence of nonalleged violations. But
such exclusion of otherwise relevant evidence for punitive purposes
could have the effect of preventing a full vindication of statutory policies
and of employees' rights . And for this reason , the trial judge, when all is
said and done , will normally feel compelled to hear the evidence , but also
to enter whatever protective scheduling or other orders may be neces-
sary to ensure full and fair litigation . The procedural bar against belated
amendments applied in Seaward, supra, is therefore . not an adequate
means of deterring attempted litigation of nonalleged violations where
the General Counsel invokes the "background" contention and disclaims
any desire to obtain a Board order as to such additional violations.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Imposing more arduous conditions on Emma
Chang beginning on September 27, 1982, by-changing
her previous schedules and starting times.
(d) Suspending Emma Chang for a week in November
1982.
(e) Transferring employee Edna Arzadon in November
1982 from a nurses aide job to a job as kitchen helper.7
In addition , the General Counsel amended the para-
graph dealing with subcontracting to ARA Services by
adding the name of an additional employee to the exist-
ing class of 7 terminated (and not rehired) employees al-
leged to be discriminatees.
The Issues
Respondent has denied all wrongdoing and the issues
which such an answer raises may be inferred from the
complaint as outlined earlier. In addition, however, Re-
spondent raised as one of several affirmative defenses
that the complaint should be dismissed to the extent it
addressed matters which were the subject of the October
28, 1982, settlement agreement with which Respondent
had complied . This, in substance , is a "settlement bar"
defense and this defense raises several key issues. As I
discuss further below, the case law is clear that a settle-
ment will bar the General Counsel 's attempt to obtain
Board relief for any presettlement conduct unless the
case falls within a narrow range of exceptions . These ex-
ceptions are fairly summarizable as follows:
1. The presettlement matters sought to be litigated
were specifically reserved for that purpose by mutual
agreement of the parties; or, absent such a reservation;
2. The presettlement matters sought to be litigated
were unknown to the General Counsel and were not
readily discoverable by investigation at_ the time the set-
tlement was approved ; or, failing that;
3. There were postsettlement unfair labor practices by
Respondent which allow a finding that Respondent did
not comply with its settlement commitments , thus justify-
ing a reopening of the settlement.
Respondent 's settlement bar defense will have substan-
tial impact herein , for I conclude below that none of the
above-noted exceptions is applicable to this case. More
specifically, it will be found (and there is no dispute) that
the settlement did not contain any "reservation " of pre-
settlement matters for later litigation (thus ruling out ex-
ception 1, above); and that the presettlement matters
sought to be litigated herein were either known to,- or
readily discoverable by, the General Counsel when the
settlement was approved (thus removing exception 2,
above). Finally, even after giving due weight as "back-
ground" to the evidence surrounding the alleged presett-
lement violations , I find no persuasive evidence that
postsettlement violations were committed (thus eliminat-
ing exception 3).8
7 This was an entirely new matter ; until then , Arzadon 's name had
only appeared among the listing of alleged discriminatees who were not
hired by ARA Services after the subcontracting in December.
8 Because I reach these ultimate conclusions , I do not decide whether
certain presettlement conduct by Respondent violated the Act. Rather, I
merely set forth in sec . III below my factual findings about those presett-
lement matters as "background " properly usable in reaching a determina-
Independent of the foregoing , there is a significant
issue arising under Section 10 (b) of the Act with respect
to all complained-of treatment of Emma Chang. As I
detail elsewhere below, a' separate charge in Case 37-
CA-1973 was filed in November 1982 directed at Re-
spondent's having threatened Chang with a shift-sched-
ule change and having threatened her with ultimate ter-
mination if she did not conform to the new schedule.
This charge was subsequently withdrawn and no new
charge which addressed itself to those events was filed
within 6 months of the now complained-of occurrences.
Indeed, no new charge. was ever filed involving any
aspect of Chang 's treatment . The complaint merely in-
cluded her eventual termination as an alleged violation
despite the absence of any "live" charge which raised
that issue.
. Respondent raised at trial what was essentially a 10(b)
objection to the General Counsel 's attempts to amend
into the complaint the very predischarge treatment' ac-
corded Chang which was the subject of the withdrawn
charge in Case 37-CA-1937. I allowed the amendment,
but deferred ruling on the 10(b) aspect pending the sub-
mission of documentation relating ' to the disposition of
that latter-named case.9
I conclude for reasons elaborated on, in analysis
below, that Section 10(b) bars consideration not only of
the alleged predischarge action taken against Chang, but
also of the alleged discriminatory termination of her, the
latter action likewise having taken place outside the 10(b)
limitations period and being , in any case, inescapably
intertwined with the predischarge actions against her.
Accordingly, on the entire record , t 0 including after
study of the parties' posttrial briefs, t t I make the follow-
ing
tion whether there were postsettlement violations . See, e.g., Laborers
Local 185 (Joseph's Landscaping), 154 NLRB 1384 fn. 1 (1965).
8 Respondent 's counsel did not expressly refer to Sec. 10(b) when
making this objection ; rather he complained that "the evidence has been
before the Board for in excess of a year on this particular issue. . . . If
ever there was a case where a complaint should not be amended , this is
it. The Region has had this information in its files , there is a specific
charge filed on this individual and dismissed [sic]" (it was shown actually
to have been withdrawn). (See Tr . 154, et seq.) Although Respondent did
not specifically invoke Sec . 10(b), I construed his remarks at the time as
invoking a 10(b) defense , one on which I declined to rule pending sub-
mission of pertinent documentation . (See Tr. 159-160; 161-162; 164-165;
174.) Accordingly, although 10(b) defenses may be waived (see, e.g.,
NLRB v. A. 1« Nettleton Co., 241 F.2d 130 (2d Cir. 1957); A. H. Belo
Corp. v. NLRB, 411 F.2d 959, 966-967 (5th Cir . 1969), 1 conclude that
the defense was timely invoked by the nature of Respondent 's opposition
to the proposed amendments regarding Chang , and that the procedural
facts pertinent to the 10(b) defense were thereafter fully litigated. Cf.,
e.g., Systems Council T-6 IBEW (New York Telephone), 236 NLRB 1209,
1217 fn. 5 (1978), enfd . 599 F .2d 5 (1st Cir. 1979).
10 The General Counsel has filed an unopposed motion to correct the
trial transcript in a large number of particulars . I grant that motion. I fur-
ther note that the transcript contains numerous additional errors , none of
any ultimate consequence, and only some of which are adverted to above
and elsewhere below.
11 The General Counsel and Respondent filed posttrial briefs after the
due date was extended by mutual request from April 13 to May 30, 1984.
The Charging Party adopted the General Counsel's brief.
LEEWARD NURSING HOME
FINDINGS OF FACT
1. JURISDICTION
A. Respondent's Operations
Respondent operates a 50-bed nursing home facility at
Makaha, Island of Oahu, Hawaii, where it provides inter-
mediate care for elderly patients, all Medicaid recipi-
ents. 12
B. Respondent's Hierarchy
Kiyoko (Gloria) Akase owns the nursing home, but
holds the title "assistant administrator ." She is in direct
charge of day-to-day operations, however, and is admit-
ted by Respondent to be a supervisory agent. Francis
Okita, titled administrator, is likewise admitted to be a
supervisory agent . His function appears from this record
to be limited mostly to business management , although
he played a formal role in some of the allegedly unlawful
conduct described below. Beverly Toyama and Marian
Kim are "charge nurses," admittedly supervisory jobs.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Prior Representation of Respondent's Employees by
United Public Workers; Decertification of That Union;
Respondent 's Antiunion Animus; Renewed Organizing
Activity in Mid-August 1982
Until it subcontracted its housekeeping and dietary
functions in December 1982, Respondent employed a
complement of licensed practical nurses (LPNs), nurses
aides, kitchen (dietary) workers, and housekeepers. The
typical complement varied somewhat in size, but it ap-
pears to have ranged around 25 persons.13
The employees of Respondent had been represented
by United Public Workers (UPW) for approximately 1-
1/2 years before that union was eventually decertified in
1980 in a Board -sponsored election . Barbara Bustamante,
one of the alleged discriminatees herein, was active for
the UPW, serving as its secretary until the decertifica-
tion.
Credible and uncontradicted testimony from many wit-
nesses causes me to find that Akase was hostile to union-
ization at her facility, often questioning employee-appli-
cants whether they had been union members, and often
stating that she was opposed to unions . 14 In one cited in-
12 In the 12 months before the complaint issued Respondent purchased
and received directly from points outside Hawaii goods and materials
worth more than $50 ,000 and derived gross revenues from its operations
exceeding $500,000.
18 Because of my recommended disposition , I do not make findings
about the exact size and scope of the nonsupervisory bargaining unit at
the time of the Union 's demand for recognition, this being a matter of
considerable debate among the parties but having significance only to the
question whether a bargaining order might properly be issued-an issue
mooted by my recommended disposition.
14 Credited and undenied testimony of Leovi Ragodos (December
1980 job interview), Julita Santos (December 1979 interview and remarks
in subsequent 2 months); Anita Lewis (June 1981 interview); Patricia
McLean (July 1982 interview ); Luz Bautista (June 1980 interview);
Edgar Martinez (March 1981 interview).
1061
stance, she told interviewee Edgar Martinez in March
1981 that she would get rid of him if he joined a union.
In other instances, Akase indicated her belief that Busta-
mante had been the key figure in the UPW campaign
and that Bustamante was a "troublemaker ," urging that
she be "watched" for signs that she and other employees
were talking about a union (Santos, Lewis, supra; and
Bautista in random pre-1982 conversations). 15
As detailed incidentally below, there was renewed or-
ganizing activity-this time for the Union-in August
1982.18 Two main meetings took place at employees'
homes; one on August 19, the other about August 22.
Most of the authorization cards for the Union were
signed at these meetings . A few other cards were inci-
dentally solicited at the nursing home. On August 23, in
Case 37-RC-2702, the Union filed a petition for certifi-
cation election with the Board's Honolulu office, a copy
of which was admittedly received at the nursing home
on August 24.
Within a period of roughly a week following the arriv-
al of the petition copy at the nursing home, there was a
variety of activity by Respondent' s agents which is al-
leged to have violated the Act, or which is related to al-
leged violations. I return to those below.
On August 31 the Union's agent Kellog presented Re-
spondent with the Union's written request for recogni-
tion as the employees' bargaining agent, offering therein
to submit signed authorization cards for a neutral, third-
party verification of its claimed "majority" status. Re-
spondent declined this invitation.
On November 26 the Regional Director issued a deci-
sion and direction of election. Thereafter, however, the
Union filed charges in Case 37-CA-1996 which have
blocked any further election processes.
B. Timing of Respondent 's Acquisition of Knowledge
of the Renewed Union Organizing Drive
Respondent formally maintains , echoing Akase's testi-
mony , that its agents were unaware of any renewed
union activity until the August 24 date when the election
petition arrived at the nursing home . There is no direct
evidence to the contrary ; neither does the General Coun-
sel claim that Respondent 's agents learned of any such
activity at any point before the card soliciting began on
August 19.17 There is evidence arguably suggesting that
Akase had some earlier inkling of union activity. This
derives from Patricia McLean's testimony about her own
employment interview with Akase in July (or perhaps in
late June).18 Thus, McLean recalled that Akase not only
Ia None of the foregoing background incidents was alleged to involve
violations of the Act; all but the incident described by McLean occurred
more than 6 months before the first charges were filed See further dis-
cussion below about McLean's status and conduct during the Union's
campaign.
16 Hereafter , we are concerned primarily with events in and after
August 1982, with some spillover into the early months of 1983 Accord-
ingly, calendar year references will not be required to understand the
timing
17 "Soon after the August 19 meeting, it became clear that Respondent
had knowledge ...." G.C. Br. at 6.
18 McLean first testified that she was "hired " in "July," later clarifying
this by saying that she was hired in "mid-July," but that the interview
under discussion took place "two weeks prior to my being hired "
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked her if she had been "affiliated with any union" but
also that "We talked rather lengthily about the union sit-
uation there. [Akase] told me that a year ago, she had
some problems [brief interruption]. She had some prob-
lems with her employees, and she thought that she had
taken care of that situation, but the problems were begin-
ning to start again ." Akase never denied this account.
The latter portion of McLean's quoted recollection
suggests (although it is equivocal) that Akase had
become aware even as early as late June of some re-
newed union activity. I do not accord that portion of
McLean's testimony any weight on this question of the
timing of Respondent's acquisition of "knowledge," how-
ever. Not only does the General Counsel fail to advert
to it, but there is no record evidence that there was any
union activity going on in July (or in late June). Indeed,
on brief the General Counsel identifies the "Beginning of
Union Activity" (section caption) as taking place "some-
time in mid-August," when employee Leovi Ragodos
first made contact with a union agent and arrangements
were made for the subsequent August 19 and 22 orienta-
tion and signup meetings at employees' homes.
The matter of when Respondent's agents first learned
of renewed union activity is of limited significance; it ap-
pears to have principal bearing on whether or not a
memorandum and a letter transmitted by Okita in late
July relating to the much later decision to subcontract
work to ARA Services was itself written with early
knowledge of some renewed organizing which might
have taken place in that early period. But where there is
no evidence that there was any union activity in July,
and where the General Counsel states that such activity
did not begin until "mid-August," I am required to con-
clude that Respondent had no knowledge of any re-
newed campaign any earlier than "mid-August." Beyond
that, there is nothing independently in the record which
reasonably shows that Respondent's agents were aware
of renewed organizing at any point before August 24. I
find below-and the General Counsel has not argued
specifically to the contrary-that all ' alleged unfair labor
practice incidents took place on or after August 24.1 9
In sum , while the record shows that Akase was hostile
to union organizing and that she had from time-to-time
solicited others to report to her about any union activi-
ties which might come to their attention, the record fails
to show that Respondent's agents knew of any renewed
union activities before the August 24 date when the
Union's petition was served at the nursing home.
C. Alleged Presettlement Unfair Labor Practices
1. Akase-McLean-Flores transactions
The record suggests a flurry of activity, beginning on
August 24 and involving Akase (and her son Herbert),20
is The complaint alleges that certain violations happened "on or about
August 23," but there is no evidence offered by the General Counsel in
support of those allegations which points reliably to that August 23 date
(witness testimony being vague as to timing and just as consistent with a
finding that the event being described happened on or after August 24)
20 Herbert 's status is disputed I find that he was responsibly involved
in hiring and schedule-setting and is thus a supervisor within the meaning
of Sec 2(11) of the Act
Okita, and Toyama, some directed at learning more
about the organizing activity, particularly the identities
of the ringleaders.
From the credibly offered and essentially undenied tes-
timony of Pat McLean on the point, I find that Akase
summoned McLean to Akase's office about September
7.21 In a brief meeting which followed, Akase asked
McLean to "get me some information on the key people
... involved with the union." Akase also asked McLean
to find out who the "union shop steward" was and "if
any of her supervisors were involved in any way as
active union members (specifically naming admitted su-
pervisory Charge Nurse Marian Kim, and Licensed
Practical Nurse (LPN) Anita Lewis and Kitchen Super-
visor Shigeko Fulton, whose supervisory statuses are in
dispute).22 McLean agreed to "try and get the informa-
tion" and, "by coincidence," that same evening, she was
visited at home by nurses aide Martha Flores. Flores told
McLean that she had been sent from a union meeting to
ask McLean to join the Union. McLean used the oppor-
tunity to draw information from Flores about who had
been present (specifically asking about Lewis, Fulton,
and Bustamante, and receiving information that all of
those named had been present and that Bustamante was
the "shop steward.")23 The next morning McLean
passed the intelligence thus gleaned back to her "coordi-
nator," Eloise Yamaguchi (who is Akase's niece). Later,
McLean was summoned via Yamaguchi to Akase's office
where she repeated what she had learned from Flores.
Akase requested that McLean prepare a written account.
McLean did so.
The Akase-McLean transaction is not alleged to in-
volve a violation of the Act; indeed the parties have stip-
ulated that McLean is a supervisory agent of Respond-
ent.24
Akase's use of McLean for intelligence-gathering is il-
lustrative of a certain zeal on Akase's part to learn de-
tails about the Union's new campaign and it makes it im-
probable that other events described below were merely
isolated phenomena.
2. Okita/Akase August 25 staff meeting
Akase admits that a staff meeting, originally scheduled
to be held on August 26, was advanced to August 25.
Okita and Akase both spoke at this meeting. The com-
21 I rely on McLean's memo to Akase dated October 12, 1982, in
which she recorded the date of September 7 as the date of incidents de-
scribed below Her trial testimony about the timing was unreliably vague
22 McLean recalls that Akase also mentioned Barbara Bustamante's
name in the same connection; Bustamante was not, however , a supervi-
sor, rather, as all parties acknowledge, she was a nonsupervisory nurses
aide
23 Of course, none of the Flores hearsay can be relied on to establish
that there had been a union meeting that night or that any of those
named had attended it, or that Bustamante was, in fact, a "shop steward "
24 The record contains enough evidence about McLean's job to make
one wonder whether she did, in fact, have any supervisory authority
during any time in question. The record suggests as well that her job was
dressed up with some supervisory trappings after Respondent learned of
the union drive and instituted a managerial realignment But when the
complaint alleges and the answer admits that McLean was "at all times
material" a statutory supervisor, the question of her possible status as an
employee (at least during certain material periods) was never fully litigat-
ed and I therefore rely on the pleadings
LEEWARD NURSING HOME
plaint alleges that Akase made unlawful threats to lay off
employees if they did not "abandon their union activity."
The proof showed that both Okita and Akase spoke,
with witnesses recalling Okita as the person who made
the remarks now actually relied on by the General Coun-
sel25 and Akase as simply "seconding" Okita's remarks
in some ill -defined way. It was not established that
Akase made the specific remarks now relied on by the
General Counsel to prove the complaint allegation.
Respondent did not call Okita to testify on this sub-
ject, although he testified on other matters. Given the
liberal opportunity granted to the General Counsel to
amend her complaint and the fact that she made numer-
ous amendments thereafter but failed to allege that Okita
broke the law, I conclude that the General Counsel has
waived any such contention. I further conclude, in any
case, that Okita's conduct in this regard was not fully
litigated because Respondent never called Okita to testify
on this subject (and Respondent was not on notice by
any complaint allegation that it might be vulnerable to
an 8(a)(1) finding for failure to rebut the testimony of the
General Counsel's witnesses regarding Okita's behavior
during the August 25 meeting).
Should it somehow be determined on review that
Okita's behavior was properly put into issue-and that it
matters to the overall result-I would find from the testi-
mony credibly given by several employees that Okita an-
nounced in substance that Respondent intended to grant
employees a 5-percent wage increase, but that if employ-
ees should attempt to seek a greater amount, Respondent
would be required to reduce employees' hours or engage
in layoffs.26
3. Toyama interrogations of Arakawa and Oribello
On August 29 charge nurse Toyama called nurses aide
Jean Arakawa into the nurses ' lounge, then questioned
her alone, with the door closed . Toyama asked Arakawa
if "two people" had "approach[ed]" her "about the
union ." Arakawa said , "Yes," causing Toyama to ask
whether this had been "two months ago," and Arakawa
replied that it had been 10 days or 2 weeks earlier.
Toyama asked further whether anybody had talked
about wages and Arakawa replied : "Yes." Toyama then
sent Arakawa back to work.27
25 The complaint was never amended to allege Okita as an 8(a)(1)
actor, despite such proof and despite direction from the bench that the
General Counsel spell out by complaint amendments any matters which
she intended to prove which, if found to have occurred, would amount
to violations of the Act chargeable to Respondent
26 It should be noted further that the General Counsel expressly
waived any contention that the wage increase announcement in itself vio-
lated Sec. 8(a)(I) (even though the General Counsel's witnesses credibly
testified that in a meeting a month earlier, Okita had told employees that
there would be no wage increases because of austerity measures related
to the policies of the Reagan administration) Also disclaimed by the
General Counsel was any contention that the law was broken during this
meeting by Okita's or Akase's instruction to employees that they should
not speak in "dialect" (the largest number of employees having been
raised in the Philippine Islands and being accustomed to speak among
themselves in Tagalog or other non English dialects).
21 1 rely on Arakawa's sincerely offered recollection as to the timing
and substance of the meeting. Toyama's account was more perfunctory,
but she admitted initiating the questioning. Toyama testified that she told
Arakawa (and Oribello, in an admittedly similar conversation discussed
below) that she had received "complaints" from employees Toyama did
1063
Toyama had a similar conversation with nurses aide
Juana Oribello in late August.28 This occurred in Toya-
ma's office, with no one else present. Toyama began by
asking whether "Barbara" (understood by Oribello to be
a reference to Bustamante) had approached Oribello
"about the union ." Oribello pretended ignorance ("I
don't know. I don't know about the union.") and the
matter was apparently dropped.
4. Herbert Akase's statements to Edgar Martinez
Edgar Martinez, normally employed as a gardener (a
housekeeping position , as he testified ), signed a card for
the Union on August 22. Crediting his undenied testimo-
ny, he was approached at some unspecified point thereaf-
ter by Herbert Akase. According to Martinez, the ensu-
ing conversation was brief. Herbert said, "I don't want
no one to be in the union ." Martinez replied , "I don't
know nothing about the union ." Herbert did not testify; I
would, therefore, credit Martinez.
5. Marian Kim's statements to Elvira Jacob
Elvira Jacob , a nurses aide still employed by Respond-
ent, gave credible and undenied testimony that charge
nurse Kim spoke with her in the nurses ' lounge on or
about September 12, during which Kim said that she had
been asked by Akase to have "the girls" tell charge
nurse Toyama about any of their "problems ." Kim also
made some reference to her own awareness that Jacob
had been a union member "last year" (an apparent refer-
ence to the period when UPW was the bargaining agent
for employees). Kim then reminded Jacob that the
"union supporters last year was [sic ] laid off" and that
Kim "didn' t want [Jacob] to go."29
6. Akase interrogates Chang; Chang's schedule is
changed ; Chang receives discipline for
noncompliance with new schedule
Emma Chang, a nurses aide for Respondent since
1980, signed a card for the Union on August 21. For
some years before this, Chang had been employed full-
time on the graveyard shift (11 p.m. to 7 a .m.) at another
nursing home, Nuuanu Hale . Chang had started with Re-
not affirmatively testify that she had , in fact, received such complaints. I
do not credit Toyama that she made any reference to employee "com-
plaints" to either Arakawa or Oribello; neither could I find that there
was, in fact , a background of "complaints" by employees about the orga-
nizing efforts. This aspect of Toyama 's testimony seemed clearly impro-
vised ; and from the other evidence noted above and below , it is more
probable that Toyama was simply acting as part of a general intelligence-
gathering campaign which Akase had initiated.
28 I rely on Toyama 's recollection about the timing (Oribello's being
quite vague), but on Oribello 's recollection of the substance , which was
more believably offered than was Toyama's seemingly self-justifying and
highly edited rendition
29 Jacob testified that nurses aide Juana Oribello was present during
this discussion . Oribello testified about a separate incident involving
Toyama (see next section), but was not asked by the General Counsel
about the incident involving Jacob. In some circumstances this might
warrant the inference adverse to the General Counsel that , if questioned,
Oribello would not have corroborated Jacob 's account But where Kim
was never called to deny Jacob 's account , an adverse inference may be
similarly drawn that had Kim been called , she would have admitted to
Jacob 's version 1 thus find it more likely that Jacob told the truth
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent on a part-time basis, working 2 days (Wednes-
day and Thursday) each week from 7 to 3:30 p.m.30 On
a gradual basis over the next approximately 2 years,
Chang's schedule at Respondent was expanded. By the
summer of 1982 she was regularly working Tuesday, Sat-
urday, and Sunday (beginning at 8 a.m .) and Wednesday
and Thursday (continuing to begin at 7 a.m.). She was
regularly scheduled to be off on Friday and Monday.
Respondent acknowledges on brief-and the record in-
dependently shows-that Chang's schedule, especially
the 8 a.m. starting times on certain days, was done "to
accommodate her other position." Respondent further
admits that Chang's schedule was eventually changed
(announced in late September to be effective at the start
of October) in such a manner as to render it impossible
for her to maintain her schedule at Nuuanu Hale.
There is this pertinent background to that schedule
change which I find from the credible testimony of
Chang.31
On or shortly after August 24, Akase and Chang ad-
mittedly spoke together in the "annex" where Akase
maintains her office. Akase admits summoning Chang to
the meeting, but she also said somewhat woodenly that
the Union was not mentioned-only matters relating to
Chang's schedule.
As I have found above, Akase was elsewhere engaged
during the same period in efforts to learn about the re-
newed organizing drive and it is ultimately more believ-
able that she took this opportunity, as Chang states, to
pursue union-related subjects.
Crediting Chang on the point, I find that Akase quer-
ied her whether "somebody" had asked Chang about the
union . When Chang replied "No," Akase pressed the
matter, asking whether nurse' s aide Arakawa had ap-
proached Chang about the-Union. Chang again replied,
"No," and Akase told her that it was "OK" to "sign" for
the Union but that the election was "important" and that
Chang should place an "X" in the "No" box on the elec-
tion ballot. Finally, Akase asked Chang whether she had
any "complaints" and when Chang again replied "No"
Akase raised the matter of Chang's work schedule,
saying to the effect: "If the union comes in, I can't give
you Monday and Friday off and I can't allow you to
start at 8 a.m." Akase then ended the meeting saying that
Chang should not "tell anybody" about this conversa-
tion.
Chang's traditional schedule was admittedly changed
by charge nurse Toyama to become effective the first of
30 Although Chang's testimony here was not entirely clear, I infer that
the 2 days on which Chang began work at 7 a in for Respondent dove-
tailed in some manner with her scheduled days off at Nuuanu Hale so
that she did not have to leave the latter job early in order to begin work
for Respondent at 7 a.m
3 i Chang revealed a considerable difficulty in testifying in English (she
is a native of the Republic of Korea). There are points of her testimony
(her accounts of certain English-language transactions with charge nurse
Toyama relating to her schedule) which give rise to doubt about her abil-
ity to understand English . But regarding conversations with Akase de-
scribed next , J am persuaded that Channg 's account was sincerely given
and is reliable-there being little room in those transactions for misunder-
standing, and Akase 's counterversions being suspiciously pat and seem-
ingly highly edited The findings entered next must be recognized, how-
ever , as involving a certain amount of interpolation from Chang's testi-
mony as literally given
October.32 The new schedule required Chang to start at
7 a.m. on days when she had been permitted formerly to
start at 8 a.m., and also required her to work on Friday
and Monday, starting at 7 a.m.33
When, on September 17, Toyama told Chang about
the intended schedule change, Chang protested that this
would be impossible due to her conflicting schedule at
Nuuanu Hale Toyama then referred Chang to Akase if
she wished to complain about the schedule. Chang then
met with Akase in the latter's office on a date no later
than September 27. Akase reminded Chang that she had
earlier told Chang not to tell anyone about their earlier
discussion but that Chang had reported to the "Labor
Board and the Union."34 Chang denied having made any
such reports, but added that she had told a "friend,"
causing Akase to suggest that Chang's "friend" had
made a report to the "Labor Board and the Union."
Akase then ended the meeting, telling Chang that she
should 'take up scheduling matters with charge nurse
Toyama, who had primary responsibility for the sched-
ule.
Akase admits having met with Chang at this time on
the subject of Chang's schedule and having referred
Chang to Toyama, but denies that anything else was
said . I credit Chang for essentially the same reasons indi-
cated earlier.
Acting on Akase's direction, Chang went back to
Toyama about her problem. Chang states that during this
followup meeting Toyama made some reference to the
fact that it did not "look good" for Chang to be shown
on the schedule as having a later start time, but that it
would be all right for her to continue to come in at 8
a.m. Toyama vigorously denied having made any such
concession and it is improbable that she did so. It is clear
that within a short time thereafter, Chang began to re-
ceive formal discipline for not following the new sched-
ule and that Chang was thus aware that she was no
longer being accommodated. It is more probable, and I
find, that Chang misunderstood Toyama's remarks and
that Toyama merely sought to justify to Chang her im-
33 I credit Toyama that this was the timing of the schedule change.
Chang's testimony was more vague and confusing on the point when the
change was formally due to become effective . Toyama's testimony on
this point is also consistent with findings below that Chang did not begin
to receive discipline for failure to adhere to the new schedule until after
October 1 I further credit Toyama 's distinct recollection that she told
Chang on September 17 about the intended change to give Chang time to
make adjustments in her schedule at Nuuanu Hale . Chang recalled that
she first got notice from Toyama of the change "around" September 27
In any case the date of that notice does not affect ultimate questions
herein
33 Toyama testified that she was personally responsible for deciding to
change Chang's work schedule and that she did this because of com-
plaints from Chang's fellow nurses aides Elvira Jacob and Asuncion
Asuncion that they resented having to do Chang's work in the period be-
tween 7 and 8 a in, In the light of my ultimate recommended disposition,
the question of Toyama's motivation in imposing the schedule change
need not be decided I note, however , that the parties stipulated that if
the General Counsel had called Jacob and Asuncion to testify in rebuttal
on this point , they would have denied making any such complaints to
Toyama
34 By this time , original charges had been filed alleging , inter alia, that
Respondent 's agents had conducted illegal interrogations and had made
threats of loss of benefits. Whether Chang had, in fact, furnished informa-
tion to the Board by this point is not clear from the record
LEEWARD NURSING HOME
position of the new schedule on the grounds that
Chang's late arrivals did not "look good."35
From Chang 's somewhat sketchy testimony and from
Respondent 's disciplinary records received in evidence as
authentic , it is clear that Chang did not make adjust-
ments in her schedule at Nuuanu Hale and that on those
nights when she worked at that other job, she continued
in her old practice of arriving around 8 a .m. at Respond-
ent's nursing home . Thus, the documentary record shows
that Respondent issued a "disciplinary warning notice"
to Chang on October 9 for having arrived at work at
7:55 a .m. on the dates of October 1, 3, 5, and 9.
Chang received another such written warning on Oc-
tober 15 for a similar late arrival that day. Toyama, who
prepared the warning , noted thereon:
Final warning-employee was told to either quit
job at LNH or to quit other job. Was previously
warned of this violation . If employee comes in late
again then she will be terminated.
Chang refused to sign that warning slip, but entered her
own notation "Do not agree. I can not come 7 a.m. from
other job."
On October 20 Toyama prepared another warning slip,
this one relating to Chang's late arrival on October 17.
Therein, Toyama stated : "Referring problem to adminis-
trator for action . Employee was spoken to about this
problem on 2 occasions with no results ." Chang admits
having had a conversation with Okita (the administrator)
about that October 20 date, after admittedly having re-
ceived warnings "three times." She states that Okita
merely reiterated that the slips were due to Chang's
having arrived at work late . Possibly during this or a
later discussion with Okita (Chang 's testimony is not
clear on the point) she voiced her belief that the new
schedule was related to her having signed a union card.
Okita did not reply.
On October 22, Chang received yet another such
warning for a late arrival on the same date . Therein,
Toyama noted again that she "will refer problem to ad-
ministrator for action."
During roughly the same period to this point. Chang
states (and Toyama does not directly deny) that Chang
asked Toyama to be allowed to work only a 2-day per
week schedule but that Toyama stated this would not be
feasible. In the same period , Toyama states (and Chang
does not deny) that Toyama offered to allow Chang to
change to working evening shifts ending at 10 a.m.,
which would permit Chang to continue her graveyard
shift at Nuuanu Hale , but that Chang declined this offer.
ab Whether there was a brief period dung which Chang was-as she
testified-laboring under the belief that it was acceptable for her to con-
tinue under her old schedule is not significant to the merits of the com-
plaints about Respondent 's treatment of Chang even if those merits might
properly be reachable. Moreover , in the light of the General Counsel's
theory that the schedule change was itself unlawfully calculated to either
force Chang to quit or to provide grounds for discharging her for her
predictable inability to meet the new schedule , it is anomalous for the
General Counsel to argue that Respondent nevertheless relented for a
brief time in enforcing the new schedule before finally cracking down on
Chang 's repeated tardiness.
1065
I would credit Chang as to the former and Toyama as to
the latter.
The scheduling impasse continued into November,
with Chang continuing to receive late arrival warnings, a
2-day suspension , a later 2-week suspension , and, finally,
termination on December 17-all ostensibly directed at
her accumulation of "tardiness" infractions . I note at this
point that if those later, postsettlement , actions against
Chang were unlawfully discriminatory, they had that
character only as a result of discriminatory action taken
against Chang in the presettlement period; specifically, in
the original , presettlement decision to alter Chang's
schedule . For, without a finding that the underlying
schedule change was unlawfully prompted, it would be
impossible to find that Chang's later suspensions and ulti-
mate discharge arose from some independently unlawful
motivation . As the General Counsel correctly noted in
first seeking to litigate such predischarge discipline
against Chang, the former was "part and parcel" of the
latter.
The impact of the settlement-bar doctrine on certain
allegations , including those respecting Chang, is dis-
cussed elsewhere below. Respondent 's 10(b) defense as to
Chang, however, may properly be treated at this point.
7. The 10(b) defense
On November 4 the Union filed a new charge with a
different docket number (Cases 37-CA-1973) expressly
alleging an 8(a)(3) violation in these terms:
Since on or about October 1, 1982, and at all times
thereafter , the . . . Employer . . . ha[s] knowingly
and deliberately violated the rights of an employee
as guaranteed under Section 7 of the Act. Emma
Chang , a known union supportive employee, has
been continuously threatened with a change in her
employment status, a change to an other than
agreed upon shift and termination.sa
Of 10(b) significance , however, is the fact that the
Union formally withdrew the charge in Case 37-CA-
1973 by letter to the Honolulu Subregional Office dated
November 18. That withdrawal was formally approved
by an agent acting for the Regional Director for Region
20 on November 19.37 Moreover , subsequent charges
were filed in Case 37-CA-1996 by the Union against Re-
spondent (and against ARA) on January 3 (amended
May 23), those charges nowhere mentioned Chang by
name nor did they contain language which facially cov-
98 The Union also filed an amended charge in the same case on the
same day which realleged the Chang violation in different terms (but not
materially so) and which added a claim that Respondent had engaged in
"pervasive" unfair practices and had refused to bargain with the Union as
the employees ' majority representative
a' This withdrawal and approval process had followed shortly on the
heels of a letter in the same case dated November 15 from a Honolulu
office Board agent to Respondent 's counsel in which the Board agent ad-
vised that his investigation revealed "a prima facie case for violations of
Section 8 (a)(I). In addition , there appears to be a prima facie case that
the alleged discriminatee's hours have been affected due to union activi-
ty " That letter closed with an invitation to Respondent 's counsel to re-
spond to the allegations This record does not explain why the Union
withdrew the charges only 3 days after that letter issued from the
Region
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered either Chang's October schedule change, nor her
subsequent discipline for failure to adhere to the sched-
ule, nor her ultimate, schedule-related discharge on De-
cember 17.38
The Board has held that a withdrawn-as opposed to
a dismissed-charge cannot be reinstated outside the 6-
month 10(b) period. (Winer Motors, 265 NLRB 1457-
1458 (1982); see also Mine Workers Local 8217 (Powellton
Co.), 266 NLRB 1081 (1983).)
Winer Motors appears to dictate the result that the mat-
ters relating to Chang covered by the withdrawn charge
in Case 37-CA-1973 are now barred from consideration
by Section 10(b) of the Act. The only possible escape
from the strictures of Section 10(b) lies in the fact that
there were new charges filed in Case 37-CA-1996 on
January 3, 1983, a date which was less than 6 months
from the point at which the new schedule was imposed
on Chang (which is the central fact underlying all
Chang-related allegations). Thus, by a strained applica-
tion of the "relation-back" doctrine39 it might be argued
that the charge in 37-CA-1996 was sufficiently "related"
to the Emma Chang matters as to satisfy the 10(b) re-
quirement that a charge be filed within 6 months of any
actions which form the basis for a later complaint. See,
e.g., North Country Motors, Ltd., 133 NLRB 1479 (1961)
(amendment of complaint permitted to include otherwise
time-barred 8(a)(3) allegation where there existed an
8(a)(1) and (5) charge filed within 6 months of the al-
leged 8(a)(3) incident). But the cited case did not in-
volve, as herein, a fact pattern where the assertedly time-
barred 8(a)(3) allegation previously had been the subject
of a specific charge which was expressly withdrawn.
And it is doubtful in the light of Winer Motors, supra,
that such a formally withdrawn charge could be "re-
vived" merely by the filing of a timely later charge di-
rected at other matters occurring "since December 29"
and which did not expressly allege as a violation the
matters which were addressed by the withdrawn
charge.40
Accordingly, I conclude that Section 10(b) bars con-
sideration of the Chang incidents which preceded the
withdrawn charge in Case 37-CA-1973.
This leaves for consideration whether Chang's eventu-
al suspension and her ultimate discharge for failing to
adhere to the new schedule are likewise barred by Sec-
tion 10(b). Superficially, Winer Motors does not address
those situations since the withdrawn charge did not deal
with those latter acts. But it is evident for reasons al-
ready set forth that any illegality in those latter actions
against Chang would depend entirely on whether the un-
38 In substance , the charges filed on January 3 alleged that "Since
December 29 the above named joint employer interrogated, threat-
ened, and terminated its employees because they signed union cards .
and because the Teamsters had a majority signed up Additionally,
the charge made reference to the recent "subcontract[ing]" and requested
injunctive relief
39 See generally, e g, El Cortez Hotel v. NLRB, 390 F 2d 127 (9th Cir
1968)
40 Cf PTT Lighting Fixtures, 267 NLRB 709 (1983), where the Board
said , "The General Counsel does not have an open-ended period of time
nor endless series of opportunities in which to litigate an allegation. He
does not have the option of indefinitely suspending an allegation so long
as there is a timely-filed charge to which he can append the long-aban-
doned allegation."
derlying schedule change was itself unlawfully motivat-
ed. In these circumstances, where a finding of a violation
within the 10(b) period41 is inextricably linked to a find-
ing of illegality in a time-barred event, the rationale
adopted by the Supreme Court in Bryan Mfg.42 comes
into play. Thus, here, as in Bryan, Section 10(b) would
bar a finding of violation with respect to even those ac-
tions taken against Chang which were not the subjects of
the withdrawn charge, since reliance on the alleged ille-
gality in the underlying schedule change is necessary to
"cloak with illegality" Respondent's subsequent disci-
pline and discharge of Chang for failure to adhere to the
new schedule. 362 U.S. at 417.
8. The suspension of Bustamante in September 1982
Barbara Bustamante first became employed as a nurses
aide for Respondent in 1980. I have earlier noted the
background reflecting that Bustamante was-and was
known to Respondent's agents as-a key figure in the
earlier UPW representation of Respondent's employees.
Findings earlier will also permit the inference that when
Respondent's agents learned on August 24 that the
Union had begun a renewed representation campaign
Bustamante was suspected as being involved in that cam-
paign.
There is additional background evidence introduced
by Respondent, however, that well before August 24,
Bustamante had been the subject of numerous discipli-
nary warnings. Thus, as of mid-August 1982, Bustamante
had received at least two written warnings for infrac-
tions relating to patient care (in August and October
1980), two warnings for dress or appearance code infrac-
tions (August and December 1981), and two warnings
for three separate "long lunch" infractions (August 6 and
8, 1982).
None of the foregoing discipline against Bustamante
was challenged by the complaint as having been unlaw-
fully prompted.
As amended at the trial, however, the complaint now
alleges that Bustamante was discriminatorily given a dis-
ciplinary notice on August 30, 1982, followed by a 10-
day suspension which was imposed in early September
for the same underlying incident. The underlying inci-
dent occurred about August 17, at a time when Busta-
mante was working the night shift. As she testified43 she
admittedly left her work station on the night of August
17 to go outside the nursing home to investigate an ap-
parent auto accident after hearing a screech of tires and
the sound of a crash. She claims that the security guard
unlocked the door to the building to permit her exit, that
she remained outside only a few minutes to determine
whether there was any need to render aid or call the
police, and that she then returned to her work area.
41 I here assume, arguendo, that the suspension and discharge of
Chang were "related" to the subjects of a timely charge If not, then this
discussion is superfluous
42 Bryan Mfg. Co v. NLRB, 362 U.S 411 (1960)
43 Bustamante was only a marginally reliable witness, having a tenden-
cy towards glibness and inconsistency, which did not inspire my confi-
dence in the general accuracy of her recollections
'LEEWARD NURSING HOME.
Respondent 's agents were admittedly aware of. this in-
cident only shortly after it happened but, equally admit-
tedly, no action was taken against Bustamante until
August 30, when charge nurse Toyama issued her a dis-
ciplinary warning for violation of house rules by leaving
her work station and the nursing home premises . In that
warning, Toyama recommended Bustamante 's suspension
pending further investigation . On September 4 Adminis-
trator Okita imposed a 10-day suspension for the infrac-
tion.
The General Counsel's theory of discrimination in this
episode relies primarily on Respondent's proven antiun-
ion animus, its tendency to see Bustamante as a union
ringleader, and the fact that the disciplinary action was
not taken until after Respondent became aware of the
Union's new campaign. Respondent explains the delay in
taking action on the ground that investigation was re-
quired in the meantime.44
It should be recalled that this discrimination count was
added to the complaint only after the General Counsel
had claimed (and still argues on brief) that the proof of
discrimination in this incident would make more likely
that Bustamante 's eventual discharge in April 1983 was
tainted by a similar discriminatory motive. It is thus sig-
nificant that the General Counsel made no similar
amendments or other claims of discrimination relating to
additional disciplinary steps which Respondent took
against Buatamante in the same approximate period.
Thus, there is uncontradicted documentary evidence that
Bustamante received another written warning for having
overstayed a lunchbreak by 45 minutes on August 27.
Bustamante was then employed on the night shift.45
Toyama testified without specific contradiction from
Bustamante that at some not clearly defined point
Toyama decided to move Bustamante to the day shift so
that Bustamante would be subject to more direct and
sustained supervision . Toyama states that she effected
this change in Bustamante 's shift assignment as a result of
two incidents on the night shift in which patients nomi-
nally under Bustamante 's care had fallen out of bed, sus-
taining hip fractures . This shift change, I find, occurred
at some point in September.46
As noted above, no amendment was tendered-nor
claim made-by the General Counsel that Bustamante's
August 27 "late lunch" warning or her September shift
change violated the Act. And under circumstances
where counsel for the General Counsel was given full
opportunity to identify by specific complaint amendment
those 10(b)-reachable aspects of Bustamante 's predis-
44 There is credible testimony that variant stories told by Bustamante
and the security guard had to be cross-checked , consuming several days.
45 I rely here on the indication in the August 27 warning slip that Bus-
tamante's "late lunch" infraction occurred between "3-4 A.M.!'
46 Bustamante agreed that such a shift change was effected at some
point in the year before her discharge , but could not recall the timing any
more precisely . Bustamante also acknowledged having been scolded by
Toyama for "too many incidents" on the night shift . Elsewhere , Toyama
testified (consistent with a memorandum prepared on November 28
which is discussed in the section herein dealing with postsettlement mat-
. ters) that the shift change occurred about 2 months before November 28.
I thus rely on that uncontradicted testimony in finding that the shift
change occurred in September . In any case , the shift change could not
have occurred before August 27 since the record independently shows
that Bustamante was still on the night shift on that date.
1067
charge treatment , which she intended to argue were un-
lawfully discriminatory in character, I conclude that any
such contention was waived by her failure to single out
those two incidents for complaint attack.47
I thus close this section by reiterating that the only al-
leged presettlement violation involving Bustamante re-
lates to the August 17 auto crash incident and her subse-
quent discipline therefor.
9. The maintenance of a rule restricting solicitation
and distribution
By pretrial amendment dated January 9, 1984, the
complaint includes the allegation that Respondent at all
material times has maintained an unlawfully restrictive
rule pertaining to solicitation and distribution . The par-
ties stipulated that during all material periods , there were
prohibitions contained within Respondent 's published
"House Rules" against , inter alia:
Posting or removing notices or distributing litera-
ture or [sic] any nature on Nursing Home property
without authorization.
Soliciting or collecting contributions of any nature
or selling benefit tickets, pools or raffles on Nursing
Home property without authorization.
These rules do not appear to have any significance to
any other questions raised by the complaint. I note that
they were in existence at the time of the November 28
settlement.
D. Settlement in Case 37-CA-1936 and Related
Procedural Dispositions
The original charge filed on September 2, 1982, in
Case 37-CA-1936 alleged substantively as follows:
Since on or about August 23, 1982 , and at all
times thereafter, the above named Employer
through its Officers, Representatives and Agents
have threatened , coerced and interfered with their
employees rights as guaranteed under Section 7 of
the Act by , among other things,
(1) Illegal interrogation of employees concern-
ing Section 7 activity
(2) Illegal surveillance of Section 7 activity
(3) Promises of benefits to undermine Section 7
activity
(4) Threats of layoff, discharge and Nursing
Home shut down to discourage Section 7 activity
(5) Threats of suspension of an employee for
her participation in Section 7 activity
47 In any case , absent a specific complaint challenge to that conduct, I
would not find that Respondent fully litigated any lurking claim that
such disciplinary conduct involved discriminatory considerations. For,
absent such notice, Respondent had no reason to believe that it was re-
quired to litigate any defense to such conduct. Similarly , absent any alle-
gation that such conduct was unlawful and absent full litigation of such a
theory, I may treat Respondent 's conduct in those two instances as
having been legally innocent . See, e.g., Conroe Packaging, 243 NLRB
812, 814 (1979).
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) Reclassification of employees to discourage
Section 7 activity
By the above and other acts , the above-named
employer has interfered with, restrained, and co-
erced employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
A brief digression is required with respect to item 5 of
the quoted charge. This may have been intended to ad-
dress Bustamante's suspension , as described in the previ-
ous section . This view is circumstantially corroborated
by the fact that Bustamante furnished an affidavit to the
Honolulu subregional office of the Board on September
13 (see cross-examination of Bustamante ) and by the fact
that Bustamante had no information to offer (as far as
this record shows) regarding any "independent " viola-
tions of Section 8(a)(1) during the period covered by the
charge . Such an interpretation is further indirectly cor-
roborated by a partial dismissal letter issued by the Re-
gional Director for Region 20 on October 15 wherein he
states:
The investigation disclosed insufficient evidence to
indicate employer knowledge of any union activity
which would serve as the basis of an unlawful
motive for the alleged discriminatee's suspension. I
am, therefore, refusing to issue a complaint on this
portion . However, the investigation further dis-
closed evidence of alleged violations of Section
8(a)(1) of the Act which the Employer has agreed
to settle.
The Act gives employees the following rights.
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
• WE WILL NOT interrogate our employees con-
cerning their union activities or support or the
union activities or support of other employees.
WE WILL NOT inform employees that some em-
ployees will be promoted to management positions
so that they cannot vote for the union in any board-
directed election.
WE WILL NOT threaten employees with layoffs in
order to persuade them to abandon their union ac-
tivity.
WE WILL NOT in any other manner interfere
with , restrain, or coerce employees in the exercise
of the rights guaranteed them under Section 7 of
the Act.
There is no claim in this record that Respondent failed
to comply with this notice-posting requirement.
E. Alleged Postsettlement Violations
Thus, although the identify of the "alleged discrimina-
tee" is not disclosed , this record does not suggest that
there were any persons other than Bustamante who were
suspended at the time . And, if Bustamante was, indeed,
the "alleged discriminatee" whose "suspension " was the
subject of the quoted dismissal , it is apparent that the
mid-trial amendments to allege that Bustamante 's suspen-
sion was unlawful are inconsistent with that Regional
dismissal.
It remains to note that the parties settled Case 37-CA-
1936, the settlement being approved by an agent of the
Regional Director for Region 20 on October 28. The set-
tlement was on standard Board "settlement agreement"
boilerplate , with only one additional , typed-in clause, as
follows:
In signing this Settlement Agreement , Leeward
Nursing Home is not admitting that it violated any
of the provisions of the National Labor Relations
Act.
The agreement contained no reservation by the Gener-
al Counsel of the right to litigate subsequently any pre-
settlement conduct by Respondent except that contained
in the "contingent upon compliance" boilerplate.48
The agreement further provided for the posting by Re-
spondent of a remedial notice to employees containing
the following pertinent language:
48 This reads : "Contingent upon compliance with the terms and provi-
sions hereof, no further action shall be taken in the above case."
1. Introduction
In this section I shall make findings and reach conclu-
sions about the alleged postsettlement violations which
have independent character as potential unfair labor
practices . The term "independent" as used hereafter en-
compasses only those alleged postsettlement violations
which do not require a finding that there were related
presettlement violations in order to determine whether
the postsettlement action violated the Act. There is one
set of postsettlement matters clearly having such inde-
pendent character ; that is, the set of alleged violations re-
lating to the subcontracting of certain work to ARA
Services . I conclude that those allegations are without
merit. There are two other arguably independent post-
settlement matters; the job reassignment of Edna Arza-
don and the discharge of Barbara Bustamente. I make
findings and conclusions about the merits of those latter
allegations despite the fact that each arguably depends
for a finding of illegality on findings that certain presett-
lement conduct affecting those employees was likewise
unlawful . I conclude on the merits about each such latter
allegation that the evidence is insufficient to sustain the
alleged postsettlement violation.
The only plainly "dependent" alleged postsettlement
violation is that affecting Emma Chang (her discharge on
December 17 for an accumulation of tardiness infractions
linked to the presettlement imposition of the schedule
change). I have concluded in her case that Section 10(b)
of the Act bars adjudication of every feature of Re-
spondent's actions against her. Independent of that ra-
LEEWARD NURSING HOME
tionale, I conclude that the settlement agreement bars ad-
judication of any of the actions taken by Respondent
against her.
2. The reassignment of Edna Arzadon
As amended at trial, the complaint charges Respond-
ent with having violated Section 8(a)(3) of the Act by
discriminatorily transferring Arzadon "on or about No-
vember 8" from her former position as a nurse 's aide to a
new position as a kitchen helper. As she has amplified
her position on brief, , the General Counsel views this
transfer as having been calculated to put Arzadon in a
position where she would be vulnerable to termination at
the future point when Respondent planned to subcon-
tract housekeeping and dietary services to ARA Services
(there being evidence , discussed separately in the next
section, that Respondent was pursuing such a subcon-
tracting option at the time of Arzadon 's transfer). I deal
here only with the facts relating to Arzadon's transfer
itself.
The General Counsel relied principally on Arzadon's
testimony as fFollows: Arzadon had signed an authoriza-
tion card during the August organizing drive after
having worked as a nurses aide for almost a year. She
thereafter wore a union button on two occasions while
on the job as a nurses aide . Although claiming that she
never complained , nor received complaints from others
about her work, she was unexpectedly told "in Novem-
ber" by Okita and Toyama that she was "too young" for
the nurses aide job (she was then 20 years old) and was
abruptly switched to the kitchen job. The General Coun-
sel also points to a stipulation of the parties that if LPN
Anita Lewis had been called by the General Counsel at
the rebuttal stage, Lewis would have testified that she
never heard Arzadon complain nor had she heard others
complain about Arzadon's work.
In defending against the complaint , Respondent relies
primarily on testimony by Toyama which contradicts
Arzadon's claims that the transfer was unexpected.
Toyama states that she was first approached by Arzadon
in March -1982 and that Arzadon then confessed to being
"embarrassed" when working with male patients and
that she sometimes found it difficult to lift patients even
with assistance' from other aides. According to Toyama,
Arzadon also confided at that time that she was "upset"
and "nervous" about LPN Lewis' "yelling at her for
anything that she did wrong," with the result that she
could not do her work. Toyama states she asked charge
nurse Kim at the time to do what she could to assist Ar-
zadon and, if possible, to "run her through a quickie ori-
entation program again."
In May 1982 states Toyama, she again met with Arza-
don to discuss a periodic performance appraisal which
Toyama had completed on May 21. In that appraisal
Toyama had rated Arzadon as "fair" in most perform-
ance areas, "average" in two areas (Initiative & Interest
and Cooperation) and "good" in two others (attendance
and neatness and appearance). Toyama had also noted
therein under remarks: "Gets flustered when assigned to
men patients. Needs help in cerl aiu aspects of patient
care. Evaluation discussed with Edna . Explained need to
improve."
1069
After submitting that appraisal to Okita, the, latter
noted in the space reserved for "Action to be taken" that
Arzadon's performance should be reviewed in "2-3
months."49
Toyama reevaluated Arzadon in July, this time con-
cluding in writing that Arzadon 's work performance was
"unsatisfactory . . . no visible improvement." Toyama
states that when she discussed this appraisal with Arza-
don, she told Arzadon she would change Arzadon to an
evening shift where the workload was not as demanding,
and which "might kind of help her to adjust into the
nursing home routine ." Toyama also stated that such a
shift change was thereafter effected . Respondent's
records (an October 13 performance appraisal prepared
by Toyama and discussed, next) show, however, that Ar-
zadon was not transferred to the evening shift until Oc-
tober 10.
Upon receiving Toyama's July appraisal of Arzadon,
administrator Okita made an entry on July 29 as "Action
to be taken" that Arzadon's performance should be re-
viewed "in 2-3 months again" and that Arzadon's em-
ployment may "continue," but that "consideration"
should be given to "possible lateral transfer to another
department if transfer to evening shift does not work out
satisfactorily." For reasons noted above, I treat Okita's
entries as authentic as to date and time. Whether Arza-
don was then made aware of Okita's entry is not clear
from the record.
It is clear, however, that Arzadon had received and
signed in the meantime a warning slip prepared on Octo-
ber 14 by Toyama in which Toyama noted, inter alia,
that Arzadon was still complaining that the work was
"too hard" for her and that Toyama had told Arzadon
on October 10 that "she was not interested in moving to
another department where the work might be easier." As
Toyama independently testified, she had earlier told Ar-
zadon that she would be given a "two-week trial period"
and if Toyama "didn 't see a great improvement in her
work," Toyama would "either ask for a lateral transfer
to the kitchen, which had an opening at that time , or else
put her on the night [as contrasted with the evening]
shift." The October 14 warning slip signed by Arzadon
contains a similar reference.
The precise timing of Arzadon's actual transfer (as op-
posed to the timing of the decision to transfer her) is in
doubt. Arzadon testified summarily that the transfer oc-
curred in November and that she was likewise "told" by
Okita and Toyama during a meeting in Okita's office in
November that the transfer would be effected. The Gen-
eral Counsel does not appear to have adopted Arzadon's
49 Arzadon was never recalled by the General Counsel at the rebuttal
stage to state whether or not she had participated in such specific discus-
sions and appraisal interviews as were described above and below by
Toyama The General Counsel also voiced "no objection" to the receipt
into evidence of the May 1982 appraisal record and similar records de-
scribed above and below When these records were received without ob-
jection as to authenticity , and when there was no specific evidentiary
attack on the authenticity of those records at any later stage by the Gen-
eral Counsel, I treat them as the authentic date and time of preparation I
further disregard as unwarranted by this record certain inconclusive sug-
gestions now made on brief by the General Counsel to the general effect
that some of those records may be phony because they do not facially
reveal that Arzadon read or subscribed to them
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony in its entirety as to these timing matters. Thus,
on brief, the General Counsel states : "in October,
Toyama and Okita told [Arzadon ] that she would be
transferred to the kitchen as a helper . . . and in Novem-
ber, Arzadon was transferred to the kitchen." The Gen-
eral Counsel 's interpretation of the record is thus consist-
ent with my own on the question when Arzadon re-
ceived notice of the transfer, i.e., that it happened in Oc-
tober . I find more specifically from the records referred
to above that the decision to transfer her was made by
Okita on October 15. Moreover, from the fact that Arza-
don signed the October 14 warning prepared by
Toyama, I find that she was at least on notice of Toya-
ma's intention to effect such a transfer because she made
two references to such a transfer - in that warning
notice.50
Consistent with the General Counsel 's observation
quoted above , I conclude that Arzadon must have been
told that she would be transferred at or shortly after the
point on October 15 when Okita formally made such a
recommendation on Arzadon 's performance appraisal.
Absent any contrary evidence , however, I rely on Arza-•
don's testimony above in concluding that the transfer did
not become effective until some point "in November,"
on or before November 8.51
In sum , to the extent that it has bearing on the settle-
ment bar issue I find that by October 15, or shortly
thereafter, Arzadon was on notice of Respondent 's inten-
tion to effect the now -complained-of transfer.
If, on the other hand , the October 28 settlement does
not bar consideration of the merits of the complaint
about Arzadon 's transfer, then these additional findings
are in order. First , to the extent that Arzadon's and
Toyama 's trial statements are conflicting on the question
whether Arzadon was surprised to learn about criticism
of her work as a nurses aide "in November" (but, actual-
ly, as I have found , by no later than October 14, when
she received Toyama's written warning of that date), I
would not credit Arzadon. Rather, from her November 8
letter to Akase referred to above it is plain that she ad-
mittedly had been "talked to" about her performance, as
a nurse's aide in "August ." Moreover, I credit Toyama's
more particular testimony that there had been a rather
lengthy history of critical communications between her
and Arzadon on the subject of Arzadon's performance as
a nurse's aide dating as far back as March 1982, with
regular, written, followup communications reflecting
Toyama's dissatisfaction with Arzadon 's work thereafter.
60 As noted above , Toyama first referred in that warning to an earlier
conversation with Arzadon in which Arzadon had indicated an unwill-
ingness to "move to another department "; and, elsewhere in that warn-
ing, Toyama stated , in substance , that she had warned Arzadon that if
her performance on the evening shift did not improve , Toyama "would
either change her shift to night or do a lateral transfer to kitchen or
housekeeping department with a change in status to call in position."
51 The transfer had to have taken place by November 8 because on
that date Arzadon wrote a letter to Akase complaining about the transfer
and suggesting that it had been motivated by her support for the Union. I
note also that Arzadon implicitly admits in her letter to Akase -contrary
to her trial testimony-that the first time that she was "talked to" (in
context , a reference to criticism of her work as a nurse 's aide) was "in
August."
In sum , I reject Arzadon 's testimony insofar as she
suggests that the transfer decision came as a surprise to
her and insofar as she suggests that she was unaware of
any management dissatisfaction with her performance as
a nurses aide until the point when she was told by Okita
and Toyama that she was to be transferred.
I also conclude, on the merits, that even if, arguendo,
the General Counsel has made a prima facie showing
that Arzadon's transfer was prompted by her earlier
union activities, Respondent has come forward with evi-
dence which satisfies its burden under Wright Line, Inc.,
251 NLRB 1083 (1980). It should be recalled that the
General Counsel does not regard Arzadon's transfer as,
in itself, involving any detriment to Arzadon; rather, the
General ' Counsel's theory is more attentuated-that, in
transferring Arzadon, Respondent intended to place her
in a department whose work Respondent had already de-
cided (allegedly for discriminatory reasons) would be
subcontracted out in the future. Because I conclude else-
where below that Respondent 's subcontracting decision
was lawfully motivated and did not involve any periph-
erally unlawful aspects either, I do not dwell on the frail-
ties in the General Counsel's prima facie case as to Arza-
don. I simply conclude that Respondent has adequately
demonstrated that Arzadon would have been transferred
to the dietary department without regard to her support
for the Union's organizing drive.
3. Subcontracting of dietary and housekeeping
functions to ARA Services; nonhire of certain
employees formerly doing that work; analysis and
conclusions
a. Introduction
As is more fully set forth below, the complaint allega-
tions relating to the subcontracting have puzzling and in-
herently inconsistent features , but there are two appar-
ently central elements in that portion of the complaint. It
is seemingly52 alleged first that Respondent's letting of
the subcontract itself was a decision based on unlawfully
discriminatory motives . Thus seen as a "motive" case,
the issues are relatively straightforward and the facts
bearing on that question are reasonably simple to narrate.
The issues surrounding the second element of the sub-
contracting complaint , however, are neither obvious
from the pleadings nor is it easy to identify the body of
facts which should appropriately influence resolution of
those issues . Moreover, the nature of the second element
calls into question the analysis just made of the first ele-
ment . Thus, the complaint labels as an independently dis-
criminatory feature that Respondent "terminated" eight
named dietary and housekeeping employees . If the com-
plaint had named all of the employees who were "termi-
nated" in connection with the subcontract , one might
conclude that the latter allegation merely flows as a legal
consequence from the " allegedly discriminatory decision
to subcontract . But the complaint does not do this;
rather, as fleshed out by undisputed facts and arguments
of the General Counsel, this second element of the com-
62 The term "seemingly" is used advisedly.
LEEWARD NURSING HOME 1071
plaint does not truly address itself to Respondent 's termi-
nation of those eight former dietary and housekeeping
employees ; rather it was calculated to raise a claim that
Respondent caused ARA not to hire those eight employ-
ees.5 a
It is this aspect of the complaint which provides the
greatest source of confusion . For if the decision to sub-
contract were unlawful , then the termination of all em-
ployees who performed the subcontracted work would
seem to be equally unlawful . And where the complaint
limits itself in its second element to the claim that only
those who were not rehired by ARA suffered unlawful
discrimination , questions arise as to whether the General
Counsel truly intended to challenge the act of subcon-
tracting itself, as opposed to its effect on a limited class
of individuals . It is impossible to divine a clear-cut
answer to these questions from the General Counsel's
various statements at trial and on brief. It is seemingly
her position that the subcontracting decision was dis-
criminatory , yet she seeks no remedy consistent with
such a position . Thus, on brief, the General Counsel con-
fines her discussion to the appropriate remedy . for the
claimed violations to arguments why a bargaining order
remedy is necessary . Notably lacking in this discussion,
however , is any request for reinstatement of the status
quo ante the subcontracting by, for example , rescinding
ARA's subcontract and reinstating its former , in-house
dietary and housekeeping operation, with attendant rein-
statement of all employees affected thereby.
The absence of such a remedial request may derive
simply from the possibility that the General Counsel is
content to allow the subcontracting to stand . If so, then
apart from creating doubt why it was challenged as un-
lawful in the first place, a host of even more perplexing
questions arise which relate to the requested bargaining
remedy. Among these questions are: In what unit should
Respondent be required to bargain , only the unit consist-
ing of employees in the nonsubcontracted departments?
If so, then of what significance to the result are the many
authorization cards signed by dietary and housekeeping
employees? Alternatively, if the bargaining remedy is in-
tended to encompass employees in classifications dis-
placed due to the subcontracting , then to whom should
the bargaining order be directed : To Respondent only
(despite the fact that it no longer has employees in these
classifications); to Respondent and ARA Services jointly
sa The colloquy between and among counsel and the bench at Tr.
348-352 is most revealing in this regard . There, the General Counsel was
questioned about the nature of the subcontracting aspects of the com-
plaint and the significance of the failure to name in the complaint as dis-
criminatees all of the persons whom Respondent terminated in connec-
tion with the subcontracting. In response , the General Counsel clarified
that it was not Respondent 's "termination ," per se, of the eight named
employees which occasioned the complaint ; rather, she said, it was Re-
spondent 's "blackball[ing]" of those employees for rehire by ARA which
was intended to be the subject of the complaint . And, after further collo-
quy on this point, the General Counsel adopted the position that "only
those persons who didn 't get hired [by ARA] were discriminatees" and
that it was for this reason that the complaint "does not list those people
who were hired by ARA. The complaint lists the 8 people who were not
hired by ARA and were terminated by Leeward ." And the General
Counsel subsequently adopted my interpretation that it was her intent to
"argue that I could find that Leeward played some role in influencing"
ARA's decisions not to hire the eight employees named in the complaint.
(despite the fact that the complaint did not adopt the
charge (Case 37-CA-1996) that Respondent and ARA
were "joint employers" and ARA was not charged as a
lawbreaker nor as a party-in- interest)?64 It is even possi-
ble by virtue of the peculiarly limited nature of the "ter-
mination" (i.e., "blackballing") allegation ' to speculate
that perhaps the General Counsel only wished Respond-
ent to reinstate those employees whom it fired and who
were not hired by ARA. In that case , presumably, the
General Counsel would take the anomalous position that
Respondent should be required to restore only a part of
the subcontracted work (i.e., enough to provide employ-
ment for the eight "blackballees"). Similarly, in such a
case, the unit for which' the bargaining order is requested
would be an unusual one, i .e., one consisting of employ-
ees in nonsubcontracted departments and those eight die-
tary and housekeeping employees whom Respondent
would reinstate as part of a remedy for the limited
"termination/blackballing" violation.
It would impute a certain lack of rationality to the
General Counsel, however, to conclude that any of the
latter positions are genuinely intended , despite the fact
that the complaint may be read literally to encompass
them . It may be, despite the absence of any express re-
medial request therefor, that the nature of the violation
alleged in connection with the decision to subcontract
was intended to carry with it the necessary remedial im-
plication that the subcontract be rescinded and that the
status quo ante the subcontracting be reinstated , includ-
ing by Respondent 's reinstating of all affected employees.
Drawing this conclusion would not, however, dispose
of the matter. For if rescission of the subcontract and
restoration of the status quo ante is part of the implicitly-
requested remedy, then the General Counsel 's current
procedural posture stands in the way of such a remedy.
For it is a central procedural fact that, while the union's
several charges in Case 37-CA-1996 (filed January 3,
amended May 23 and June 2, 1983) had alleged that Lee-
ward and ARA Services violated the Act with respect to
the subcontracting , Leeward is the only actor targeted
by the complaint . And the General Counsel expressly ac-
knowledged at trial that only Leeward's actions relating
to the subcontracting were being charged as statutory
violations.
In comparable circumstances the Board held in Mobil
Oil Corp., 219 NLRB 511 (1975), enf. denied 555 F.2d
732 (9th Cir. 1977), that a "restoration" remedy would
be inappropriate where the business which acquired the
subcontract was not named as a party, and was not rep-
resented at the hearing . The same procedural defects
exist herein . ARA was never named in the complaint as
a respondent party, nor even as a party-in-interest.
Indeed , ARA was dismissed , sub silentio , from these pro-
ceedings . Neither did the complaint contain any affirma-
tive prayer for relief encompassing rescission of the sub-
contract and restoration of the status quo ante the sub-
contracting . Neither is there any evidence that ARA re-
ceived separate notice of these proceedings or notice that
64 And see discussion below about the significance of the failure to im-
plead ARA as either a Respondent or as a party -in-interest.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel might seek a remedy which could
affect its interest in retaining the subcontract. Cf. Hillside
Manor Health Related Facility, 257 NLRB 981 (1981) (af-
fected subcontractor permitted to appear in the trial pro-
ceedings and to take role as amicus curiae).55
It may be observed as well that at all times during the
investigation and disposition of these cases, all Regional
Offices of the Board were under instructions in cases
where such restoration orders were sought to provide
notice to subcontractors by service on them of a copy of
the complaint containing "a specific prayer for relief."
(See Memorandum 82-21, Office of the General Counsel,
June 8, 1982.) Against that background it is an even
more compelling inference that the Region's failure to
give such notice to ARA derived from a judgment that
no such restoration was necessary to the remedy herein.
And if that inference is correctly drawn, we are back to
an initial set of questions: If the General Counsel did not
wish to set aside Respondent's subcontracting of work to
ARA, then why was the subcontracting the subject of a
complaint? Alternatively, if reinstatement of the eight
"blackballees" by ARA was an intended remedy, then
why was ARA not named as a party respondent? Cf.
Teamsters Local 227, 236 NLRB 656 (1978), where the
Board rejected a remedy which would require the party-
in-interest to take affirmative remedial action vis-a-vis a
discriminatee where the party-in-interest was not specifi-
cally named as a party respondent (and even though said
party-in-interest was "served with all documents and
pleadings and appeared at the hearing").
I have noted the remedial complications inherent in
the vexingly obscure positions taken by the General
Counsel on the subcontracting matters because those
complications are not confined solely to remedial mat-
ters. It is ultimately a moot question whether the Gener-
al Counsel might obtain any meaningful remedy for the
alleged subcontract-related violations under circum-
stances where the complaint is inherently crippled by the
failure to bring ARA into the case as either a party re-
spondent or as a party-in-interest. But I have paused to
examine those questions because they highlight issues
which will reemerge in an examination of the merits of
the alleged substantive unfair labor practices. As I show
next, the peculiarly hobbled, inconsistent, and obscure
nature of the subcontracting aspect of the complaint has
impact on the question whether I may properly inquire
into whether ARA itself committed violations in connec-
tion with its acquisition of the subcontracted work.
The General Counsel sought to litigate in detail (and
relies on the fruits of such litigation for arguments on
brief) the "merits" of ARA's individual hiring decisions.
As explained by the General Counsel when questioned
on the point during her presentation, such litigation was
directed towards proving ultimately that ARA acted dis-
criminatorily and that Respondent played a collusive role
with ARA in those hiring decisions.56 As amplified on
ss As noted below, ARA played no role in tins trial whatsoever, qua
ARA On of its agents merely appeared as a witness for Respondent in
Respondent's efforts to defend against the "blackball" allegation.
ss To,this extent, therefore, we may view this as yet another attempt
to litigate nonalleged violations (this time, violations by a third party) all
brief, the General Counsel's argument is roughly consist-
ent; that an analysis of the legality of Respondent's ac-
tions should start with an examination into whether or
not ARA itself made discriminatorily motivated choices
in hiring from Respondent's complement.
I must decline the implicit invitation to determine
whether ARA engaged in unlawful behavior, however,
for two related reasons: First is the fact that ARA was
never on notice by complaint or otherwise that it was
being charged with violations of the Act. And especially
where ARA was charged by the Union with culpability
for violations associated with the subcontracting and
ARA was never thereafter charged in the ultimate com-
plaint (not even as an unindicted coconspirator) it would
be fundamentally unjust to render findings and conclu-
sions which focus on whether or not ARA violated the
Act in making decisions about whom to hire from Re-
spondent's complement. Indeed, the failure to name
ARA as a coviolator in the complaint amounted to a sub
silentio dismissal by the Regional Director of any claim
that ARA violated the Act at all.
To this extent, therefore, the General Counsel' s litiga-
tion and briefing focus with respect to ARA's hiring
choices may be seen as utterly inconsistent with the deci-
sions surrounding issuance of the complaint , i.e., as a
kind of back-door attempt to prove unlawful conduct on
ARA's part under circumstances where it had been
seemingly determined by the Regional Director that
ARA had not violated the Act. In these circumstances,
therefore, the General Counsel waived any right to claim
that ARA acted unlawfully in its hiring behavior.
Second, absent a specific complaint that ARA was
guilty of statutory misconduct, I conclude that the ques-
tion of ARA's motives in making hiring choices was
never properly litigated; for findings and conclusions as
to that question could only be derived from a record in
which those motives were properly put into issue. The
only question put into issue in this area was whether or
not Respondent, for its own discriminatory reasons,
sought to influence ARA's hiring choices.57
Moreover, even if I were to accept the General Coun-
sel's implicit invitation to decide whether ARA violated
the Act in its hiring choices, and even if I then were to
conclude that ARA committed such violations, such an
ultimate conclusion would not necessarily require a find-
ing that Respondent induced that misconduct.
With all of these considerations in mind, and especially
considering the unique procedural background whereby
ARA was never on notice of any claim that it acted un-
lawfully, I make only those findings about ARA's behav-
ior during the hiring process' which reasonably bear on
the question whether Respondent influenced that process
and, if so, whether Respondent had unlawful motives in
doing so.
as a predicate to proving that certain violations took place which were
alleged
S' Thus, although ARA's representative, Morris, was called by Re-
spondent, Morris' only function in the proceeding was as a witness for
Respondent on the question whether Respondent influenced ARA's
choices. Morris' appearance therefore was not tantamount to an appear-
ance by ARA for purposes of defending its own hiring choices against a
claim that it acted unlawfully.
.LEEWARD NURSING HOME 1073
In sum , I address below the factual and legal questions
surrounding only these narrow issues:
a. Did Respondent decide to subcontract for unlawful
reasons?
b. Did Respondent influence ARA's hiring choices? If
so, was it for unlawful reasons?
b. Subcontracting decision
ARA provides housekeeping and dietary services on a
subcontract basis to Hawaii hospitals and similar institu-
tions . Everyone agrees that Respondent announced to its
employees in a meeting attended by ARA representa-
tives, held about December 20, that it would subcontract
its housekeeping and dietary functions to ARA effective
in January . As a consequence, employees performing
those functions would be terminated , but would be con-
sidered for reemployment by ARA and that ARA
planned to hire as many persons as possible from Re-
spondent's operation.
Respondent called three witnesses to explain the back-
ground leading to this decision; these were Respondent's
agent Okita and Akase, and ARA's District Manager
Gordon Morris. Each testified consistently and credibly
on the following points and documentary evidence re-
ceived without objection as authentic further corrobo-
rates them . I thus find from those sources as follows:
Before 1982 Respondent and other similar institutions
were reimbursed under Federal Medicaid programs for
"reasonable costs" as determined by an intermediate
agency, Hawaii Medical Services Association (HMSA).
Since 1982 , however, the "reasonable costs" formula has
been abandoned in favor of a predetermined reimburse-
ment "cap." In 1982 the cap was $60.42 per day for each
patient . In 1983 the cap was reduced to $60.11, a fact
which was preannounced to Respondent by letter from
HMSA dated November 29, 1982.
Respondent's actual expenses in providing care in 1982
exceeded even the 1982 cap by "about $2," crediting
Akase. Respondent had been warned in writing at least
by March 1982 (perhaps sooner) by its accountant that
the HMSA cap would have the effect of making nursing
homes "responsible or accountable for such [excess] cost
with no likelihood of any recovery from Medicaid
sources during subsequent years, including consideration
for inflation" and that "top management should be alert-
ed to the financial consequences of the preceding since
such dissemination may mean the difference between sur-
vival or dissolution of the Home" and it was thus advisa-
ble "to reduce costs wherever you can in operating the
Home."
In July 1982 Okita had attended a meeting ,of industry
representatives and he there spoke with a counterpart
from another nursing home who spoke favorably about
the cost savings and elimination of administrative head-
aches which that administrator had experienced by using
ARA to operate his dietary services . The next day, July
24, Okita prepared a memorandum to Akase relating the
same and recommending , inter alia:
In view of the great emphasis on cost effectiveness
and the "cap" on reimbursable cost under medicaid,
I think we should at least look into this and explore
the benefits... .
In fact, we might even explore the possibility for
the other departments , such as housekeeping.
Akase authorized Okita to pursue the matter with
ARA. Okita thereafter wrote to ARA's Morris on July
24.58
Morris replied to Okita's inquiry by letter of July 27,
enclosing therein some informational literature about
ARA and suggesting that they get together for discus-
sions in the last week of August , upon Morris ' return
from a scheduled mainland trip.
At some point in late August (from Morris ' recollec-
tion "around the 23rd, 22nd, something like that"),
Morris telephoned Okita and they talked in generalities
about ARA's program . Morris told Okita that he would
not be able to be more specific about a proposal for Re-
spondent's operation without sending in a study team
and that he would not be in a position to do this until
"probably October" because he was then involved in
starting an ARA program at another nursing home
which would require "6 weeks of concentrated work" by
himself and members of his study team.
Morris next made contact with Okita in October,
saying that he had "pretty much wrapped up" his new
program at the other nursing home and suggesting that
they get together at a mutually agreeable time. They
made an appointment to meet within the next few days
and did subsequently get together before October 15.59
In that meeting, Morris, Okita, and Akase agreed that
ARA would conduct a study of Respondent's operations
in both the housekeeping and dietary departments. Al-
though Okita had been concerned mainly with only the
dietary operation , Morris suggested that a 50-bed nursing
facility could not likely support ARA's fee for dietary
services alone. Confirming this understanding, Morris
wrote to Okita on October 15 stating that his "people"
would come to the nursing home on October 28 to con-
duct a daylong study of operations and requesting that
Okita compile in advance certain information about cur-
rent costs and related personnel information.
As a consequence of ARA's October 28 study and fol-
lowup review of accumulated data during the month of
November, Morris developed a proposal which contem-
ssThe General Counsel deems it "suspicious" that Okita's memo to
Akase is dated July 24 and that his letter to Morris is actually dated July
23. She finds also that Akase and Okita were "vague and evasive about
exactly when the first contacts were made with ARA" and she avers that
Akase and Okita did not "satisfactorily explain" the "suspicious" matter
of the discrepant memo/letter dates. By contrast , I find satisfactory
Okita's explanation that date on the letter to Morris was probably a
"typo." But this is incidental . The General Counsel elsewhere expressely
acknowledges that all these exploratory events occurred in "late July"
(Br. at 14); and that fact is all that really matters for our purposes, there
being no dispute, as I have found , that renewed union activities among
Respondent's employees did not commence until mid -August.
39 I rely for this account of the timing on Morris ' letter to Okita dated
October- 15 in which Morris refers to their meeting "last Wednesday."
Morris first recalled that these events had occurred in late October, but
amended that testimony when his memory was refreshed by reference to
the date on that letter , which he said he wrote after the "Wednesday"
meeting.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plated that housekeeping could be operated with four
persons (compared to nine employed by Respondent)
and that dietary could be operated with six persons
(compared to nine employed by Respondent).80 ARA
had concluded in this same connection that its proposed
staffing and scheduling plan would effect a 33-percent
reduction in labor costs from those being currently ex-
pended by Respondent. In addition, ARA had concluded
that its proposed budget for patient meals would achieve
a savings of approximately 20 percent below Respond-
ent's current expenditures in this area . After computing
management fees and "ARA Support Service" costs and
adding these to projected labor and food supply costs,
ARA's bottom line proposal was to take over housekeep-
ing and dietary functions at a projected cost to Respond-
ent of $190,698, a savings of roughly $6700 from the pro-
jected expenditures which Respondent would make were
it to continue to operate those same departments.
Morris met with Okita and Akase on December 6 to
discuss ARA's proposal . By then, as noted elsewhere
above, the Regional Director had issued a decision and
direction of election in the representation case . During
their discussion Okita asked whether ARA's proposal
would change if the housekeeping and dietary operation
became unionized . 61 Morris replied that the "body" or
the "text" of his proposal would not change, since it was
expressly based on projections as outlined therein, but
that if negotiations with a union resulted in higher labor
costs, those would be "passed through" to Respondent,
just as would be higher-than-projected costs for food and
supplies. 6 z
Another question discussed in the December 6 meeting
was the potential timing of ARA's takeover. Morris
stated that he would have to locate a manager , but upon
doing so, the takeover could occur within 3 to 6 weeks.
The day after that meeting, Okita telephoned Morris
to state that he and Akase had decided to accept ARA's
proposal. Morris asked for confirmation of the same by
60 These numbers include supervisory personnel . I do not detail the
more precise breakdowns about full- and part -time scheduling contem-
plated by ARA as part of its proposal . There is no suggestion by the
General Counsel that ARA or Respondent contrived to reach a result
which would permit reductions in the staff complements in the respective
departments (only that the choices made by ARA for retention of specif-
ic individuals in a reduced complement were unlawfully influenced by
Respondent). Accordingly , I deal no further with any facts bearing on
the precise reasoning and calculations relied on by ARA in making its
bid to take over dietary and housekeeping functions . Rather, I presume
that those calculations were made as an exercise of normal business judg-
ment.
6' Okita explained that he had assumed at the time that ARA's em-
ployees would be eligible to vote in the then -directed election and that
the bargaining unit would consist of employees of ARA as well as em-
ployees of Respondent. This may arguably suggest that the ultimate ar-
rangement with ARA involved a joint employership . No such relation-
ship was alleged by the General Counsel to exist , however; indeed, as
noted earlier, ARA was named jointly with Respondent on the Union's
charges filed in Case 37 -CA-1996, but ARA was dismissed from that
case, sub silentio , by the issuance of the ultimate complaint which named
only Respondent . The potential joint employer relationship between the
two entities was thus never a subject for litigation in this proceeding and,
for purposes of this decision , I must therefore treat the two entities as
separate employers.
62 ARA's written proposal to Respondent includes this settlement in its
"Fiscal Analysis Summary": "Any changes in these [previously outlined
projections of costs] statistics will affect the forecast appreciably."
the device of "letter of intent ." Okita mailed such a writ-
ing to Morris the same day, requesting that Morris make
the necessary arrangements for "commencement of oper-
ations effective January 1, 1983."
c. The November strike notice; Akase's reaction; the
significance, if any, of these matters to the
subcontracting
Backtracking briefly, I find that on November 8 the
Union had notified Respondent that it intended to call a
strike at the nursing home in 10 days . The strike never
materialized , but in the meantime it caused Respondent
to take preparatory steps for operating with supervisory
personnel . During the period the strike threat was pend-
ing, Akase called a meeting of supervisory staff to ex-
plain that supervisors would be expected to fill in as
needed if the strike took place . Pat McLean , one of those
present, testified that Akase was angry , saying that she
was "disturbed about the impending strike, that she had
to spend money for extra supplies and food, and that had
caused her a lot of headaches ." Pressed by the General
Counsel for details, McLean recalled that Akase also
said-
I have had enough of these troublemakers. I'm
going to put a stop to this once and for all. They
have cost me a lot of time, money and a lot of
effort, once and for all.
Pressed further about whether Akase identified the
"troublemakers ," McLean replied:
She said housekeeping , kitchen and nurses aides be-
cause they supported to [sic ] fill these positions
when the strike did occur.
Akase did not deny McLean's account and, despite
doubts whether McLean 's account above may be taken
as a complete rendition of events in the meeting she de-
scribed , I assume that McLean testified accurately.
Having said this, I must add , however, that the episode
appears to be of doubtful relevance to this case . Akase's
resentment of the strike threat is of course revealed by
McLean's account ; but that is hardly surprising or proba-
tive of other issues herein . If this testimony was offered
in support of an argument that the strike threat somehow
caused Akase to decide to subcontract to ARA under
circumstances where she was not otherwise disposed to
do so, then her quoted remarks might have some rel-
evance to that argument . But the General Counsel makes
no such ultimate argument . Rather, the General Counsel
contends that the subcontracting decision was actually
made at some indefinite earlier point63 and • was prompt-
63 At one stage in her argument (Br. at 36) the General Counsel states:
"In the late summer of 1982 Respondent embarked upon a plan which
succeeded in eliminating half of the bargaining unit in one fell swoop."
This would suggest an interpretation of Respondent 's actions whereby
Respondent 's assertedly discriminatory subcontracting plan had already
blossomed by whatever "late summer" date the General Counsel had in
mind. Elsewhere (Br. 37) the General Counsel sees "October" as a criti-
cal point in the evolution of the formation of a discriminatory plan to
subcontract.
LEEWARD NURSING HOME 1075
ed by Respondent's knowledge of the organizing activity
for the Union. And this view of the earlier timing of Re-
spondent's development of a discriminatory plan is neces-
sary to the General Counsel's claim elsewhere that Re-
spondent decided in mid-October to transfer Arzadon to
kitchen work as part of a plan eventually to get rid of
her when Respondent would later implement the subcon-
tracting decision made earlier. Accordingly, at least
under the General Counsel's view of, this case, Akase's
remarks in response to the strike threat do not illuminate
the question of the timing of Respondent's decision to
subcontract.
Another possible claim of relevance in the proof of
Akase's reaction to the strike threat might be that the
strike threat caused Akase to make a decision which she
had not until then made to eliminate the prounion mem-
bers of the departments which would be affected by the
subcontracting decision' which she had already made. But
if something like this underlay the General Counsel's in-
troduction of McLean's evidence of Akase's reaction,
then one must ask why it is that the General Counsel
argues elsewhere that Respondent had already decided
by the time of Arzadon's earlier transfer to achieve a
weeding out of prounion employees-by the device of a
subcontract.
In sum, I remain puzzled, in the light of the General
Counsel's overall contentions about the subcontracting
and related matters, about the particular relevance to
those contentions of the mid-November transaction relat-
ed by McLean. And while I record findings here about
Akase's remarks at that time for whatever significance
they might have to a reviewing body, I do not fmd them
to be of any probative value in resolving ultimate ques-
tions raised by the complaint as to the subcontracting.
d. Conclusions regarding she decision to subcontract
The record just outlined will not permit me to fmd
that Respondent was motivated by unlawful consider-
ations in deciding to subcontract to ARA. The critical
evidentiary point is that Respondent embarked on a pur-
suit of the subcontracting option in July, at a time when,
on this record , there were no union activities among its
employees . The General Counsel does not directly ad-
dress this point. From her wide-ranging and occasionally
inconsistent remarks on brief on this subject , however, it
appears that she would contend that Okita's initial ap-
proach to A]RA in July does not provide sufficient
grounds for concluding that Respondent then had a gen-
uine interest in subcontracting, and that it was only later,
when union activities became evident, that Respondent
began a serious exploration of the subcontracting option.
If this is indeed the gravamen of the General Counsel's
position, I reject it as utterly speculative . There is no
reason to suppose that Respondent's agents were merely
engaging in a theoretical exercise when Okita, with
Akase's authorization , wrote in J uly to Morris to find
out. what ARA might be able to accomplish for them.64
64 The General Counsel argues that Respondent had not taken other
substantial cost-cutting steps (at least none which the General Counsel
suggests it should have taken if it were serious about reducing costs)
before thinking about subcontracting This appears to be an attempt to
To the contrary, the text of Okita's memo to Akase, read
against the background of ongoing cost overruns associ-
ated with the, Medicaid cap, clearly reveals that Re-
spondent was prepared to subcontract if ARA could
demonstrate that appreciable cost savings could be real-
ized by subcontracting.
In sum, Respondent's initiatives in July cannot be
found to have been merely idle; neither from their
timing, could they have been motivated by concerns
which implicate Section 8(a)(3).
I consider next whether there is any persuasive evi-
dence that Respondent's eventual - awareness of the
Union's organizing drive caused it to continue pursuit of
the subcontracting option. Here, it would be the General
Counsel's difficult burden to show that what began as a
purely economic initiative was abandoned on those
grounds, only to be revived after the advent of the
Union. But there is no evidence that Respondent had, in
the meantime, lost interest in subcontracting;65 accord-
ingly that burden clearly has not been met.
It remains to consider whether what I have found to
be Respondent's continuing economic interest in subcon-
tracting became somehow tainted by an overlay of an-
tiunion motives once the Union's organizing presence
became known. I note initially that speculation would
necessarily be involved in reaching the conclusion that
Respondent's once-pure motives became intermingled
with less than pristine considerations after the Union ar-
rived on the scene. But assuming, arguendo, that Re-
spondent later acquired such mixed motives, this would
simply trigger a Wright Line analysis under which I
would be required to determine whether Respondent
would have subcontracted even if the Union had never
come into the picture. And if this were truly a "mixed
motive" case, I would conclude that Respondent satisfied
its Wright Line burden. For, there being plain evidence
that Respondent was prepared to subcontract if ARA
could demonstrate the economic utility of such a deci-
sion, I would readily conclude that 'when ARA's propos-
al, satisfied this condition, Respondent would have ac-
cepted it. In short, even if Respondent later began to
view the subcontracting as a device which would work
to the disadvantage of the organizing effort, I could not
find that the latter motive caused Respondent to take
action which it was not otherwise prepared to take.
Accordingly, that portion of the compaint cannot be
sustained which alleges that 'Respondent's decision to
subcontract violated the Act.
claim that Okita's July initiative was merely an exercise in curiosity and
of no motivating significance. But it may be observed here that the Gen-
eral Counsel is not charged with responsibility for running the nursing
home and her own suggestions for cutting costs therefore are not entitled
to crucial weight. In any case, her position involves a non sequitur, that
is, the suggestion that simply because Respondent had not already taken
other, comparably drastic, steps first, Respondent could not have been
genuinely interested in the subcontracting possibility in July.
65 The fact that there were intervals between July and December 6
during which Respondent and ARA were not in regular contact is ade-
quately explained by Morris' credited testimony set forth in findings
above.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. Alleged blackballing by Respondent of the eight
nonhires
It remains to determine whether , as the General Coun-
sel ultimately maintains , Respondent sought , for unlawful
reasons, to influence ARA in its choices of who to hire
for the housekeeping and dietary work which ARA
would take over. Consistent with introductory analysis
and comment herein , such a determination may not prop-
erly focus on whether ARA may have behaved unlaw-
fully in this regard , there being neither a complaint
against ARA nor full litigation of that question , nor, in
any case, a necessary causal relationship between what
ARA may have done and what Respondent may have
desired . It is my ultimate conclusion in this area that the
General Counsel 's case rests entirely on speculation and
cannot be sustained.
These are the pertinent facts bearing on the matter of
the "non-hires."
Having formally decided on December 6 to engage
ARA as a subcontractor, Respondent held a meeting
with housekeeping and dietary employees about Decem-
ber 20, attended by ARA's representatives Morris, Carl
Eubanks (recently hired by Morris to be ARA's manager
at the nursing home), and Peter Trocciano (a permanent
member of ARA's staff): Okita opened by saying that
Respondent had been pursuing cost-cutting measures for
some time due to changing Medicaid reimbursement poli-
cies and that a decision had been made to subcontract to
ARA: Okita told those employees that they would be
terminated when ARA took over , but that Respondent's
agents had asked ARA to retain as many affected em-
ployees as possible . Okita then introduced Morris, who
explained ARA's operations generally (using a slide
show and other visual aids) and its plans for management
of the housekeeping and dietary departments. Morris said
in this latter regard that there would be considerable
changes in assignments and duties of housekeeping and
dietary employees , as well as reductions in staff. He also
said that he and his associates would interview all inter-
ested applicants and would give preference to inhouse
personnel who were already working in comparable po-
sitions, or who were qualified for such jobs , before re-
sorting to outside hires.
About 2 days later , Morris and Trocciano returned to
begin a series of interviews with Respondent's employees
interested in working for ARA. There is some variance
between accounts of employee witnesses and those of
Morris about the details of some of the interviews. There
is no dispute about the hiring shakeout ; eight employees
formerly working for Respondent were not retained by
ARA. All eight were shown to have been card -signers
for the Union ; and all but one (i.e., Candido Tamayo)
testified that they wore prounion buttons while at work
on one or more occasions after the Union passed out
such buttons at or near the time when the strike notice
was issued on November 8.66
With the arguable exception of one individual (Bau-
tista, discussed separately below), there is no direct evi-
dence that Respondent 's agents sought in any manner to
influence ARA's hiring choices . It is nevertheless clear
that , as part of its earlier study of Respondent 's operation
before it made its subcontract proposal , ARA had made
a request that Respondent furnish certain "necessary
data ." This request for data called for many items of no
pertinence to this discussion , but it also included a re-
quest as follows:
A list of all staff members , designating job titles,
present salaries, dates of anticipated "raises" and the
expected amounts thereof, and the period of their
employment . Designate those employees you would
prefer to have ARA retain should staffing reduc-
tions be necessary.
Morris acknowledged receiving from Respondent a list
of current employees in housekeeping and dietary de-
partments which contained most of the data sought in
the above-quoted request . That document which was re-
ceived in evidence , does not, however, contain any ex-
press statement of Respondent's "preferred" employees
as called for by ARA in its request . And it is the mutual-
ly harmonious testimony of Morris, Okita, and Akase
that there was never any discussion between Respond-
ent's and ARA's agents with respect to Respondent's
preferences for retention in the event of staffing reduc-
tions . Rather, says Morris, Respondent 's managers simply
asked ARA to retain as many "as possible" from the
former complement.
The list furnished to ARA by Respondent does, how-
ever, contain numerous markings which Morris states
were not on it when Respondent originally furnished it.
Included in those markings are checkmarks next to the
names of some employees. Morris had no recollection or
knowledge as to how or why those markings came to be
made.67
The General Counsel attaches great significance to the
check markings after. certain names on that list. I reserve
discussion until later of the possible significance of these
markings , but I record here that the names of 5 persons
on Respondent 's list of 17 names had such adjacent
check marks . These were: (In housekeeping) Luzviminda
Bautista and Juliana Sana ; (in dietary) Florida Tamayo,
Leovi Ragodos, and Librada Tucay.
The • General Counsel correctly notes that each of
those five individuals had previously signed authorization
cards for the Union. I note in addition that three other
card signers (Edgar Martinez and Candido Tamayo in
janitorial/maintenance , and Edna Arzadon, by then in di-
etary) whose names are on that list do not have any such
adjacent checkmarks.
Discussion of the nonhires also requires some under-
standing of ARA's intended staffing scheme . Crediting
Morris' undisputed testimony, I find that ARA intended
66 Some of these employees were vague about the timing of their
wearing of such buttons , but since the record independently reveals that
such buttons were not passed out until the strike threat issued , I disregard
any of their testimony suggesting that they may have worn such buttons
before then.
87 ARA's study team consisted of three individuals; only Morris was
called to testify . Morris and the two other ARA representatives were in-
volved in subsequent interviews with former employees of Respondent
interested in working for ARA.
LEEWARD NURSING HOME
to staff the dietary department using six employees in po-
sitions and schedules broken down as follows:
Position Hours Per Week
1 Cook/supervisor 40
1 Food Service
Workers (FSW) 40
1 Cook/FSW relief 32
In addition , • ARA planned to hire • three part-time
"Pantry" FSW's who would each work 4 hours per day,
using two such each day (totaling 40 hours of coverage
each week, divided among them).
The persons selected to fill those contemplated dietary
positions included three from Respondent 's former die-
tary complement, Ishigawa as cook/supervisor, Dinong
as full-time FSW, and Lau as one of the part-time
FSW's. The remaining three positions were filled by out-
siders . The nonhires from Respondent' s former dietary
complement were Florida Tamayo, Leovie Ragodos, .Li-
brada Tucay, and Edna Arzadon.
For reasons discussed earlier , I do not dwell on the
details surrounding ARA's nonhire of the latter individ-
uals except insofar as those details might bear on the
question whether Respondent influenced ARA's choices.
Pertinent in this latter regard is Morris' testimony that
each of the above-named nonhires refused to be consid-
ered for the only positions which ARA believed them to
be qualified by virtue of their experience . And it may be
observed in passing that if this were so, then it is unlikely
that Respondent influenced ARA as to their nonhire.
For if Respondent were genuinely bent on preventing
their rehire then it is doubtful that ARA would have of-
fered them any position whatsoever.
It is reasonably clear that many of the nonhires were
given active consideration by ARA for certain positions
but that they declined those in favor of other vacancies.
The case of Florida Tamayo is illustrative of this point
and provides additional background for other job-filling
decisions made by ARA.
Before ARA came into the picture, Shigeko Fulton
had been the cook/supervisor (stipulated to have been a
supervisory position within the meaning of Section 2(11)
of the Act). Elsewhere, Fulton has been referred to as a
"dietary/manager" and it appears that she was in overall
charge of that department . Elsewhere the record shows
that Respondent was dissatisfied with Fulton 's manage-
ment of the dietary department and it is clear that ARA
did not consider hiring her .68 The record is less clear
about the exact functions under Respondent 's operation
of two individuals, Florida Tamayo and Ronald
Ishigawa. Each was a "cook" of some sort, but beyond
that there are discrepancies . Thus, . it appears that
Tamayo was at one time characterized in some paper
68 The General Counsel sought to introduce testimony by Fulton
which might suggest , if true , that Fulton was not rehired by ARA be-
cause of her suspected involvement in the organizing campaign. I struck
such testimony on the ground that Fulton 's discharge by Respondent and
her nonhire by ARA were never alleged as violations and because of my
judgment that even if I were to allow the introduction of such testimony
as "background ," and even if I were to find that Respondent got rid of
Fulton because of her supervisory involvement in union activities, this
fact would not make it more probable that Respondent would take simi-
lar action as to nonsupervisoy employees.
1077
posted near the timeclock an "assistant cook supervisor,"
but that her job never changed and her pay was never
raised . When Respondent prepared a list of current em-
ployees for ARA' s use, however, Tamayo was classified
therein as simply "cook." Ishigawa was therein classified
as "assistant cook." This on its face suggests that
Ishigawa's status was lower than Tamayo's. But this
facial indication is undermined by the fact that the same
listing shows that Tamayo's weekly earnings were
$880.53 and that she received an hourly rate, whereas
Ishigawa's salary was $950. These discrepancies have
some bearing on ARA's asserted reasons for not hiring
Tamayo, as discussed next.
There are two versions of Tamayo's interviewing by
ARA, that given by Tamayo and that given by Morris.
Tamayo, whose ability to speak English was quite limit-
ed, testified:
Mr. Morris told me that get a open [sic] for cook
supervisor , and kitchen helper . And he asked me if
I like the supervisor . And he told me that I going to
think it over, if I like the job.
Q. [By General Counsel ] He told you to think it
over?
A. Yes.
Q. Did he tell you what to do after you thought
it over?
A. He told me that if I going to accept the job I
can tell to Mr . Okita . [Portion of testimony omit-
ted.]
Q. Did you say anything to him whether you
wanted to be a supervisor?
A. If possible , I like cook, because that's my posi-
tion.
[Question and answer omitted] And he told me
that cook and supervisor is same thing.
Later , so Tamayo testified, she called Okita to tell him
that she wanted a job with ARA . She was then asked
this set of questions by the General Counsel:
Q. What job did you tell him you wanted?
A. Cook, ma'am.
Q. You called Mr . Okita and told him you
wanted this cook supervisor job?
A. Yes.
From Tamayo 's testimony just quoted , there is some
basis for doubt whether there was full comprehension on
her part of the message which Morris gave to her during
her interview. But on material points, Tamayo's account
is harmonious with Morris ' account of the same transac-
tion which was uttered with apparent sincerity . I place
more reliance on Morris' version because of its complete-
ness . As Morris recalled it:
A. Florida refused to be-she did not want to be
considered for any position except the lead cook
position . I spent a lot of time talking with her, be-
cause I didn 't think she understood the process of
what was going to happen.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So I explained to her a number of times what po-
sitions we had, that we only had two full-time posi-
tions, one was the lead cook and one was the food
service worker. And she did not want to be consid-
ered for the food service worker's job because it
was less pay than what she was making at that time.
And I explained to her over and over again,
"You are qualified for that position and we were
hoping you would be able to take that position. You
would be one of the people that would want that
position . If you restrict me to only the position of
lead cook, then I have to compare your qualifica-
tions with the person who is already in that job as a
lead cook."
And, you know, he's a very talented person. He's
been around the business a long time , and I really
didn't think that we would make that kind of a
change . If Ronald [i .e., Ishigawa] was interested in
the job, he was probably going to be able to keep
the same job that he had now.
So, what she was saying to me was that if I don't
give her the job for Ronald, then she doesn't want
any other job.
Q. Was she offered a job?
A. No, she was not.
Q. Was she-so, she was not selected as lead
cook?
A. No. The person who was in that position was
selected.
THE JUDGE : Excuse me . The person who was in
that position was someone named Ronald?
THE WITNESS: Ronald Ishikawa, I believe the
name was.
It is thus clear from Morris and is reasonably clear
from Tamayo that Tamayo was made aware that there
would only be a single "cook" job in the new operation
and that it would be consolidated with supervisory func-
tions (the latter apparently having been relegated solely
to Fulton under Respondent 's operation). It is similarly
clear that Tamayo indicated by message through Okita
that she wanted that consolidated job. I note that
Tamayo did not mention-but neither did she expressly
deny-Morris' testimony that he told her that she would
be limiting her chances by confining her interest to the
cook/supervisor vacancy and that she would have a
better chance in being hired for the full -time FSW va-
cancy . 89 In any case, I find Morris ' version to be more
reliable than Tamayo's, and I thus find that Morris not
only attempted to put Tamayo on notice of the stakes in-
volved in thus limiting her choice for employment with
ARA, but that he also told her that he had hoped she
would accept the full-time FSW job and that she indicat-
ed that she was not interested in the latter. It is therefore
improbable that Respondent tried to cause ARA not to
hire Tamayo.
Having failed to interest Tamayo, his first choice for
the full-time FSW vacancy , Morris states that he then
looked to Leovie Ragodos as a likely candidate for the
job. After interviewing her and determining her back-
89 Tamayo was not realled for rebuttal after Morris had testified.
ground qualifications, says Morris, he determined to hire
Ragodos for that job. This is incidentally corroborated
by Ragodos who says that Morris "offered" her a "kitch-
en helper" job (i.e., the same job she was then perform-
ing). It appears from her testimony that Ragodos did not
then accept that offer. And, immediately after her inter-
view with Morris, Ragodos admittedly took a 2-week
medical leave linked to an injury which she had coinci-
dentally sustained only hours after her interview with
Morris. From Ragodos' account it appears that she made
no further effort to contact ARA until January 6, when
she had recovered from her injury. At that time, as she
states, she spoke with Eloise Yamaguchi , one of Akase's
assistants, who informed her that she was no longer on
Respondent 's payroll and that she should check with
ARA about where she stood. She then called ARA's
manager, now in place , who told her that he did not
have her application , but requested that she call him
later . When Ragodos later called back, she was informed
that she had not been hired. Explaining this, Morris testi-
fied that it was only after he had decided to hire Rago-
dos that he learned of her intervening medical leave and
decided that he could not await her return, but rather
had to fill the position in time for the January 1 takeov-
er. It is thus clear from the harmonious testimony of Ra-
godos and Motris that Ragodos would have been hired
but for her intervening medical absence . And it is there-
fore improbable that Respondent sought to influence
ARA not to hire Ragodos.
The nonhire of Librada Tucay has related features.
Morris testified that he did not consider Tucay for the
full-time FSW vacancy because she was not as qualified
as other applicants and.that .Tucay removed herself from
consideration for remaining vacancies by declaring that
she was not interested in part-time work . Tucay's testi-
mony about the interview did not directly address the
full-time/part-time matter and she was not recalled to
rebut Morris ' more specific testimony . 70 I do not believe
that Tucay's testimony raises a serious question of credi-
bility. In any case I would rely on Morris ' more com-
plete account and would find , absent a specific denial by
Tucay, that Tucay stated that she was not interested in
part-time work.
The nonhire of Arzadon involved essentially similar
considerations , i.e., that she was not regarded as qualified
for full-time vacancies by virtue of her brief experience
by then in the dietary department and, according to
Morris, she was not interested in part -time employ-
ment.71
Summarizing to this point , nothing in the cited evi-
dence tends to support the General Counsel's claim that
Respondent caused ARA not to hire the former dietary
employees under discussion ; much in the cited evidence
70 Tucay's version , rendered in broken English , is highly summary in
tone. She stated in substance that she asked about a "kitchen helper" job,
that Morris made some reference to the fact that Tucay had "no more
[than(?)] two years experience in kitchen helper " and that he had "no
more kitchen helper opening job."
11 Arzadon acknowledged when testifying for the General Counsel
that she was told during her interview that she did not have sufficient
experience. Like Tucay , Arzadon was not recalled to deny that she de.
clined part-time work . I credit Morris' version.
LEEWARD NURSING HOME 1079
tends to undermine that claim , particularly that evidence
which shows that ARA actually wished to hire some of
them . Neither were Morris' reasons for ultimate staffing
choices so inherently implausible as to invite an inference
that he was seeking to conceal some unlawful motiva-
tion ; and even if that were the case, the cited evidence
would not dictate the conclusion that Respondent was a
coconspirator in such actions.
Essentially similar findings and observations may be
made about ARA's hiring for housekeeping positions.
There, too, ARA's staffing scheme contemplated reduc-
tions from the complement used by Respondent. There,
too, ARA was obliged to make essentially similar hiring
choices. Thus, ARA planned to use only four persons for
housekeeping (compared to nine under Respondent's op-
eration);72 one full-time supervisor , two full-time house-
keepers, and one part -time relief housekeeper.
All persons hired by ARA for the housekeeping posi-
tions were former employees of Respondent from the
same department . One of the nonhires , Juliana Sana, was
rejected under unclear circumstances . Morris had not
interviewed Sana. ARA's representative Trocciano con-
ducted that interview and he was not called to testify.
Morris guessed that Sana was "probably qualified," but
gave no further indication of reasons for hiring others in
preference to her.
Sana's testimony on cross-examination provides addi-
tional clues. She testified that she merely submitted an
application to ARA during an initial meeting, but that
she had another, later meeting wherein an unnamed
ARA representative said (as Sana recalled it):
They told me that •I don't have any job for me with
my application and that 's all. They don't see anything is
what they told me.
Making allowances for Sana 's manifest difficulties in
speaking English , it is reasonable to infer from her testi-
mony that she was told that her application did not
reveal that she was suited for any openings . In addition,
Sana recalled shortly thereafter that she was the "last
one to interview ." It thus appears likely that by the time
Sana met for the second time with ARA representatives,
the latter had already found qualified applicants to fill
the existing vacancies and had concluded from Sana's ap-
plication that she was not as qualified as other candi-
dates.
Morris stated that he did not hire either Candid
Tamayo or Edgar Martinez for housekeeping vacancies
because their experience as outside grounds and garden-
ing workers did not qualify them for inside housekeeping
work as well as did the inside experience of those who
were selected . Tamayo's and Martinez ' testimonial ac-
counts are not inharmonious with Morris ' explanations,
although they each state that they were only told after
their initial interviews that there were "no more open-
ings" in housekeeping.
The record fails to show how, if at all, the yard and
gardening work formerly done by Candido Tamayo and
Edgar Martinez was dealt with after Respondent termi-
nated them. The General Counsel states incorrectly on
brief that Morris "said that Leeward continued to take
care of these functions ." In fact , at the transcript passag-
es cited by the General Counsel, Morris simply indicated
a lack of knowledge how those functions might have
been continued and, if so, by whom . I note as well that
there is no evidence that Respondent merely replaced
Tamayo and Martinez with new hires . It is thus open to
speculation whether Respondent continued to perform
yard and gardening work and, if so, whether by using
new hires, or by independent subcontracting , or by some
other device.
The matter of the remaining nonhire, Luz Bautista, is
somewhat unique . Morris testified that Bautista im-
pressed her interviewer , Trocciano, as being qualifed for
the lead housekeeper vacancy and that she was under
active consideration for that position (along with the in-
cumbent, Dinong). Bautista's testimony tends to corrobo-
rate this in that she states that ARA's interviewer men-
tioned a job opening for "housekeeper , lead maid, super-
visor." Bautista was admittedly removed from further
consideration , says Morris, after he spoke with Okita and
asked him whether he could help ARA decide whether
Bautista should get the nod over Dinong. Morris states
that Okita then made reference to the fact that Bautista
had a lengthy record of absences for illnesses, totalling
106 days in her roughly 2-1/2 years of employment. This
caused Morris to conclude that Bautista would not be
suited for any vacant position."
It is apparent from the foregoing findings that ARA's
hiring choices were not so demonstrably irrational as to
provide grounds for an affirmative finding that ARA
was motivated by some undisclosed reasons in those
choices . If ARA had been a party respondent to these
proceedings , one might infer that a slim prima facie case
had been made out that the union activities of the non-
hires played some role in ARA's decision not to hire
them. And, in that hypothetical event, close questions
might have been presented in some of the individual
cases as to whether ARA carried its Wright Line burden
of demonstrating that it would have made the same deci-
sions even absent the union activities of the nonhires. But
ARA was not a party respondent and it bore no Wright
Line burden of coming forward with such a showing.
Rather, the complaint alleges that Respondent caused
ARA not to hire the individuals in question ; and it is
doubtful that a prima facie case was ever made out that
Respondent played such a causative role.
72 The complement of nine under Respondent's operation included
two employees , Candido Tamayo and Edgar Martinez, who did mostly
outside gardening and lawn maintenance work, with occasional inside as-
signments on rainy days . ARA did not take over any such outside work;
accordingly , ARA's proposed staffing reduction for housekeeping more
accurately involved a retrenchment from seven such employees under
Respondent 's operation.
79 The General Counsel elicited from Morris an acknowledgement that
Okita never mentioned that Bautista 's absences were related to a "com-
pensation" injury. But there is no independent , affirmative evidence that
all of Bautista's absences were related to some such injury. Bautista's tes-
timony contains a reference to her having been injured during her tenure
with Respondent , but there is no indication in that testimony as to how
long that injury prevented her from working, nor whether it was the sub-
ject of a compensation claim.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's case is therefore speculative on
the blackballing issue, a state of affairs which is exempli-
fied by the nature of her ultimate arguments on this
point, as follows:
All of the above can only lead to the inescapable
conclusion that , contrary to Morris ' testimony, he
did follow his standard practice of asking a client
which employees they [sic] wanted to retain and
Respondent did let him know, perhaps not in writ-
ing-perhaps only by check marks on a list-who it
wanted to get rid of and that ARA never seriously
considered hiring them.
I do not find the General Counsel's conclusion to be
"inescapable ." There was no showing that Respondent
was, in fact , involved in ARA's hiring choices save in
the case of Bautista . And the limited nature of the infor-
mation which Okita imparted to Morris about Bautista's
record of absences was not shown to be either false or
suspiciously misleading.
The General Counsel 's suggestion that "perhaps" Re-
spondent made "checkmarks " next to certain names on a
list it furnished to ARA is, by its own terms, clearly
speculative. There was no showing that Respondent's
agents made the checkmarks in question . Not all of the
nonhires had such checkmarks next to their names in any
case; and it is just as possible on this record that those
checkmarks were made by ARA's agents, for any
number of routine purposes, during the course of the
interviewing and selection process . Moreover, the find-
ings above simply will not support the General Counsel's
summary assertion that ARA "never seriously consid-
ered" hiring the individuals in question.
In sum, even if I were more inclined than I am to
view Morris ' testimony with suspicion, as if it were
ARA-not Respondent-whose actions were in question,
I would conclude that Morris adequately put forth credi-
ble reasons for ARA's hiring choices. And, where the
question is finally whether Respondent was influential in
those choices, I conclude that the credible record does
not preponderate in favor of the General Counsel's
theory . I would thus dismiss the complaint in this respect
as well.
f. Alleged discriminatory discharge of Barbara
Bustamante; related 8(a)(1) threat •
The postsettlement facts pertaining to Bustamante and
to her eventual discharge may be treated summarily. As
found earlier , she had accumulated an unenviable record
of discipline before the October 28 settlement , only one
instance of which (relating to the August 17 auto crash
incident) has been singled out by the General Counsel as
having been unlawfully motivated.
The record shows without contradiction that Busta-
mante continued to be the subject of criticism in the
postsettlement period. Thus, on November 28, Toyama
completed an "Employee Performance Appraisal" for
Bustamante which contained ratings in 15 different per-
formance areas . She was rated poor in the area of atti-
tude . She was rated fair in six other areas, average in
five more areas , and good in three more areas . She re-
ceived no very good ratings . Toyama also entered the
following extended commentary in the space reserved
for remarks:
Employee was changed to the day shift from night
shift about 2 mos ago due to an increased amt of
residents falling out of bed & complaints by one
resident that the call light was placed out of resi-
dent 's reach . Also she was cited for abuse of coffee
& lunch breaks over the last six months. She argues
with other workers about work not done by shift
going off duty & argues with the dept. head when
certain orders are given . On August of this year she
was suspended for leaving the premises without au-
thorization. Employee's conduct is questionable for
continued employment with Leeward Nsg. Home.
The issuance by Toyama of this performance appraisal
is not challeged by the complaint . I note , however, that
Toyama made reference in the appraisal , inter alia, to the
August 17 auto crash incident as being one of the bases
for her observation that "Employee's conduct is ques-
tionable for continued employment ." To that extent the
allegedly wrongful treatment of Bustamante relating to
that incident may be argued as having had some influ-
ence on Toyama's November 28 adverse appraisal of her.
The record does not reveal that there were any addi-
tional incidents involving Bustamante until the incident
in April, 1983 which ostensibly precipitated her dis-
charge . That incident was described by Toyama and
Bustamante was never recalled for questioning about it -
by the General Counsel. I therefore rely on Toyama's
account, in substance as follows : On April 13 Toyama
learned that a patient , Cramer, had fallen in the shower
and had sustained severe scalp lacerations . A doctor was
notified and arrangements were made to transfer Cramer
to a hospital for suturing and followup treatment . Inves-
tigating, Toyama was advised by Bustamante and an-
other aide that Bustamante had placed Cramer in the
shower "unposeyed" (i.e., without having been secured
by a restraining device routinely used to prevent patients
from falling). As explained by Bustamante and the other
aide, Bustamante had left Cramer in that unrestrained
condition in order to.assist the other aide in placing an-
other patient in a shower . During that brief absence,
Cramer had fallen and sustained injury. Toyama then
"spoke to" Bustamante . in some manner about the inci-
dent.
It is- further undisputed that Toyama took no immedi-
ate action against Bustamante over this incident, but
waited until April 26 to prepare and issue to Bustamante
.another disciplinary warning . In that warning , Toyama
noted in the space reserved for "recommended action"
that "In view of the above incident & looking over the
records of the aide I have no choice but to recommend
termination . Aide was previously warned not to leave
resident unposeyed if unable to attend to resident at that
time. , • .
Bustamante• and Toyama agree that the two of them
met in Toyama 's office on April 26 to discuss this warn-
ing notice . Although their testimony is harmonious on
some points of • this meeting, there is a clear conflict re-
LEEWARD NURSING HOME
quiring a credibility resolution whether or not Toyama
made certain union-related remarks. Testifying on cross-
examination (which is roughly consistent with her testi-
mony on direct), Bustamante described that meeting as
follows:
[Toyama] showed me this termination paper, so I
read it. And then I asked, "Oh, how come?" And
then she said she couldn't help us anymore because
she had been helping us too long, so she couldn't
help us anymore and that we stabbed her in the
back by going to the union instead of coming to her
with our problems, and that she was going to get all
of us.
[By Respondent's counsel] Did she say anything
else?
A. She said I was incompetent.
Q. Did you say anything else?
A. Well, we were grumbling about favoritism
going on over there about other girls and stuff.
Q. Okay. I would like you to be as specific as
you can. What exactly did you say?
A. We were talking about Ling Ling, that she
could do what she liked and get away with things.
Q. Okay. Tell me what you said as much as pos-
sible.
A. That's what I was telling her.
Q. Okay.
A. They were always picking on me.
Q. Who was picking on you?
A. Management or her, you know. Management
or Beverly , as far as I could see.
Q. Was anything else said?
A. And then she said she just couldn't help us be-
cause we went to the union.
Q. Was anything else said during that convesa-
tion?
A. I was incompetent and I was for the union.
Q. Okay. Was anything else said?
A. (Shakes head, no.) -
Q. You have to answer verbally.
A. No.
Toyama's account of the same event is as fol-
lows:
A. I asked Barbara to come into my office and I
gave her the warning slip. I asked her to read it and
sign it. And if she disagreed with it, then I wanted
her to state down in writing why she disagreed.
Q. Did she say anything?
A. She took it from me and she started reading it.
And the reaction on her face changed.
Q. What was her initial reaction?
A. She was smiling , and she told me, I knew I
wouldn't get away with this.
Q. How did her reaction change?
A. She started crying after she read termination.
Q. Did she say anything?
A. She started to accuse me of favoritism and
that the reason. I recommended suspension was that
she said I knew that she was active in the union.
Q. Did she say anything further?
A. She also volunteered information that the girls
were no longer meeting for the union.
1081
Q. Excuse me. Let me back up.
Did you say anything in response to her state-
ment that the reason for this was because of her
union activities?
A. Yes.
Q. What did you say?
A. I told her that's not true.
Q. Did you say anything else?
A. I told her I couldn't terminate her on any-
thing except poor job performance.
Q. Did you say anything else?
A. That's all.
Q. Did she say anything in response to those
statements?
A. She insisted that it was on union activity that
I was terminating her on.
Q. Did you mention union activity prior to these
comments by her?
A. No, I did not.
Q. Did she say anything else that you can recall?
A. That I played favoritism on the floor.
Q. Did you respond to this?
A. I told her if she had any charges, then she
better write it down and I would look into it.
Q. Did anything else happen during this conver-
sation?
A. Just that she volunteered information that the
girls were no longer meeting together.
Q. Did you say anything in response to that?
A. No, I didn't.
This meeting was followed, as both witnesses agree,
by a meeting with Administrator Okita wherein Okita
sustained Toyama's recommendation (after hearing Bus-
tamante's complaints about favoritism). Bustamante was
fired the same day.
Clearly, if Bustamante were credited about her earlier
meeting with Toyama, I could find that Toyama essen-
tially confessed to Bustmante that she had been influ-
enced in her recommendation that Bustamante be dis-
charged by Bustamante 's union activities in the previous
year74 and that Toyama even vowed to "get" the rest of
the union-affiliated employees by some unspecified
means." Just as clearly, if Toyama were credited, a
finding would be required that the only references to
union activities in this transaction were made by Busta-
mante, and that Toyama merely confined her responses
to denials that union considerations figured in her action
against Bustamante.
I watched both witnesses carefully during their testi-
mony about this April 26 exchange and about other mat-
ters. Neither witness was so obviously sincere or insin-
cere as to justify a credibility resolution based solely on
demeanoral grounds. Moreover, I have noted that each
witness exhibited aspects of unreliability in her testimony
elsewhere . This tends to cancel out that feature of collat-
91 The record will not permit a finding that Bustamante or any other
employees were still actively involved in organizing activities in April
1983.
73 There is no allegation nor proof that other prounion employees
were thereafter dealt with adversely.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral unreliability as a basis for resolving credibility in this
instance . I am also mindful of the obvious "probability"
arguments , that each witness could be presumed to have
an interest in shaping her testimony to influence the out-
come.7 a
I• conclude ultimately that Bustamante 's account
cannot be relied upon . Her other testimonial frailities
aside , her version of the April 26 meeting as set forth
above simply does not ring true . Rather, it suggests a
certain degree of improvisation (as in her varying ac-
counts of the specific context within which Toyama sup-
posedly made the self-damning admissions that she was
prompted to act against Bustamante for her role in the
much earlier organizing drive). By contrast, Toyama's
version contains a more detailed account of the meeting
with Bustamante-one which is ultimately more plausi-
ble.
I recognize that it is not impossible that a key manage-
rial actor in a discrimination case will naively betray his
or her unlawful motivation in the course of informing a
union activist that he or she is to be fired. Annals of the
Board contain many such examples . But these "confes-
sion" cases more normally occur at the outset of union
activity, before counsel has been obtained , and before
management has been sensitized to the legal implications
of such unwary statements . Here, however, that sensi-
tization process had long since occurred. Respondent
had retained the services of a labor relations advisor only
shortly after receiving the Union 's petition in the preced-
ing August . And, as Toyama elsewhere admitted, that
representative had promptly told her that her earlier in-
terrogations (as found above) were a "no-no ." By No-
vember of that year, if not sooner, Respondent had ob-
tained its current attorney representative . By January
1983 Respondent had been the subject of a substantial
variety of unfair labor practice charges . It thus strains
credulity to claim , as Bustamante did, that Toyama
would have been so unguarded in disclosing an antiunion
motivation as late as April 1983 even if, arguendo,
Toyama privately possessed such a motivation.
The evidence cited above will permit me to find that
Bustamante 's entire work record, including her various
disciplinary citations, influenced Respondent 's decision to
fire her. Necessarily, therefore, it may be found that the
disciplinary action taken against her relating to the
August auto crash incident was one of the elements fig-
uring in Respondent's decision to fire her. And if the dis-
ciplinary actions over the auto crash incident were them-
selves prompted , as alleged , by Bustamante's union ac-
7° The General Counsel argues in this general vein that "the record
reflects that Toyama had, some difficulties in establishing herself as a
credible authority figure, and it is logical to assume that she viewed the
union activities of the LPN's and aids as an affront to her authority and
as being partly motivated by her . increasing exercise of,that authority." I
find this argument to be speculative and entirely unpersussive.The
record may reflect that there were "authority" disputes between Toyama
and at least one LPN , Anita Lewis. But the evidence contains no sugges-
tion either that . Toyama viewed those duptes as being linked to employ-
ees' union activities (the disputes having mostly preceded the renewed
organizing activity) or that employees were , in fact, moved to seek union
representation out of resentment of Toyama 's "increasing exercise of that
authority ." Accordingly , there is no rational-let alone logical-basis on
this record for adopting the quoted position of the General Counsel fa-
voring Bustamante's credibility in this instance.
tivities, then I might properly find that Respondent 's ulti-
mate decision to fire her was improperly tainted by Re-
spondent 's partial reliance on that earlier disciplinary in-
cident . Such a series of findings and conclusions would
not end the inquiry, however. They would simply
present a mixed-motive case requiring a Wright Line
"causation" analysis.
I do not find it necessary to a determination of the le-
gality of Bustamante 's discharge to decide whether Bus-
tamante 's discipline relating to the auto crash incident
was itself a product of unlawful considerations ; for I am
persuaded that Respondent has adequately demonstrated
that Bustamante was guilty of sufficient independent mis-
conduct to justify her discharge on those independent
grounds alone . Thus, from findings above it is clear that
Bustamante had received numerous disciplinary warnings
and adverse appraisal comments which were not chal-
lenged as having been unlawfully motivated and which I
therefore find were genuinely related to her poor work
performance. It is thus entirely plausible-and I find-
that when Bustamante 's failure properly to secure an el-
derly patient resulted in that patient's sustaining of seri-
ous injury, Respondent 's agents would have decided to
fire her even absent her prior union activities. Put an-
other way, I conclude that it is unlikely on this record
that Bustamante 's actions for which she was disciplined
relating to the August 1982 auto crash were of dispositive
significance in Respondent 's judgment to fire her 8
months later, especially where she was clearly guilty of
neglect in the incident which precipitated the decision to
fire her and she had been similarly guilty on numerous
prior occasions.
The General Counsel elicited from Toyama the gener-
al admission that it is "unfortunately common" for pa-
tients in nursing . homes to be injured when they fall as a
consequence of not having been properly secured. Con-
trary to the General Counsel's intended implication,
however, this concession by Toyama hardly indicates
that Respondent had some sort of "tolerance" policy re-
garding the securing of patients . Neither • is it adequate
evidence of "disparate treatment" that Respondent did
not fire another employee, Renee Dinong, when a pa-
tient under his care was injured when his toe became en-
tangled in a wheelchair." It was not shown that Dinong
had a prior record of infractions comparable to Busta-
mante's. This makes it impossible to find that Bustamante
was treated differently than Dinong.
I would, therefore , dismiss the complaint insofar as it
alleges that Bustamante was fired for unlawful reasons.
In the light of that conclusion and other conclusions
herein that no postsettlement violations were committed,
it would be improper , finally, to determine the legality of
the presettlement discipline against Bustamante relating
to the auto crash incident.78
77 Dinong received a 3-day disciplinary suspension for this incident.
78 See discussion in the next section relating to the settlement bar doc-
trine as it affects the presettlement auto crash discipline . I note further in
this regard that many of the considerations discussed below regarding the
impact of the settlement on the complaint respecting Emma Chang
would have arguable application to the question whether Bustamante's
discharge is barred from consideration due to the settlement . Thus, to the
Continued
LEEWARD NURSING HOME 1053
III. APPLICATION OF THE SETTLEMENT-BAR
DOCTRINE TO THE REMAINDER OF THE
OUTSTANDING ALLEGATIONS
It is now established as a "general rule that a settle-
ment agreement with which the parties have complied
bars subsequent litigation of the settlement conduct al-
leged to constitute unfair labor practices ." Hollywood
Roosevelt Hotel Co ., 235 NLRB 1397 ( 1978).79 The Holly-
wood Roosevelt Board majority (Member Jenkins dissent-
ed in pertinent part) took pains to emphasize that a "set-
tlement disposes of all issues involving presettlement con-
duct" (235 NLRB at 1397 , emphasis added) and not
merely those presettlement matters which may have been
subjectively intended by one or more parties to be ad-
dressed by the settlement . Thus, in the last-quoted pas-
sage, the majority rejected Member Jenkins ' dissenting
view that a "settlement agreement settles only matters in-
tended to be determined and has no effect on conduct
. not within the contemplation of the settlement." 235
NLRB at 1398. In doing so, the majority restated the
only exceptions to its "settlement bar" rule ; that a settle-
ment disposes of all presettlement matters "unless prior
violations were unknown to the General Counsel, not
readily discoverable by investigation , or specifically re-
served from the settlement by the mutual understanding
of the parties ." 235 NLRB at 1397.
Three additional points deserve mention regarding
these "exceptions ." First, the Hollywood Roosevelt Board
clearly set forth an objective test for determining the in-
tended reach of a settlement for settlement bar purposes,
i.e., that there must be some specific reservation by mutual
understanding of the parties, and not merely some unilat-
eral intention which might be inferrable from surround-
ing circumstances . Any doubt about this has been settled
in subsequent cases dealing with settlement -bar issues.
Thus, in Ventura Coastal Corp., 264 NLRB 291 (1982),
the Board again adopted the view that a settlement
which contains no "specific reservation" disposes of all
presettlement matters. 264 NLRB at 298. See also, to
similar effect, Cambridge Taxi Co., 260 NLRB 931
(1982); E.S.I. Meats, 270 NLRB 1430 ( 1984).80
extent that the General Counsel urges that Respondent 's presettlement
discipline against Bustamante was "part and parcel " of the decision to
fire her , such an argument necessarily concedes that the legality of her
firing is inescapably linked to the legality of actions taken by Respondent
against her prior to the settlement . But since I have concluded that Re-
spondent 's decision to fire Bustamante was ultimately "caused" by her
own misconduct , I do not find it necessary to discuss further the poten-
tial application of the settlement bar doctrine to her discharge.
98 The emphasized language deserves notice , for Hollywood Roosevelt
did not purport to disturb the longstanding rule that subsequent noncom-
pliance by Respondent with a settlement agreement (including by the
commission of subsequent unfair labor practices) will justify the issuance
(or reissuance) of a complaint directed at presettlement conduct. See
Wallace Corp. Y. NLRB, 323 U . S. 248 (1944); see also Crown Cork Co.,
255 NLRB 1448 (1981 ), enfd . mem. 691 F.2d 506 (9th Cir . 1982).
8° In this regard I take notice that , at least since the issuance of Holly-
wood Roosevelt , it has become common-and officialy required-practice
for agents of the General Counsel to incorporate such "specific reserva-
tion" language into settlement agreements so as to preserve the right to
engage in postsettlement litigation of any presettlement conduct not in-
tended to be addressed by the settlement . And see the Board's Internal
Instructions and Guidelines (ULP) at Sec . 10146.4, requiring special res-
ervation language in settlements not intended to address all alleged viola-
tions.
Second , the exception to the settlement bar rule where
the "prior violations" were "unknown to the General
Counsel , not readily discoverable by investigation" is
conjunctive in character . Thus, it is not enough for the
General Counsel to aver mere lack of awareness of other
presettlement violations . Rather , he must show , in addi-
tion , that the other violations were not "readily discover-
able by investigation ." See, e . g., Ventura Coastal, supra, •
264 NLRB at 298; E.S. I. Meats, supra , 270 NLRB 14".,. "
In a related regard , the Board has adopted She position.
that there is a burden of inquiry on a Rgionsl Diree* {.:.
who is contemplating approval of a .settlement agree-
ment; i.e., that he may not rest on a subjet > lach¢,+of : ,
knowledge of additional presettlement viole3*tQra; Rather,.
he must affirmatively "inquire of (at least): the. charging
party whether it has knowledge of addit,(t . .resettle-
ment violations ." Ventura Coastal , supra,. 3" NLRB at
298.81
The Board's ultimate view of this question may not
necessarily match the one it adopted in Venturi Coastal, ' .
(nor that in Chattanooga Glass). And, until the Board
clarifies its position as to the "duty to inquire " matter, I
will adhere to the view set forth in Ventura, believing.:;
that it creates a brighter rule for the parties ' guidance
and that the office of the General Counsel is , institution-' :
ally, in the best position to modify its practices to ensure:
that rights are not inadvertently forfeited by the approv-
al of a settlement.
Finally , it deserves mention that a settlement agree-
ment may, in a limited class of circumstances, have a
certain "prospective" reach in that it will bar efforts to
litigate alleged postsettlement violations which are them-
selves inescapably grounded in presettlement actions
which would be barred by a settlement from litigation.
Ventura Coastal, supra , 264 NLRB at 298 , 301. Thus, in
81 As the author of the analysis adopted by the Board pailtel (former
Chairman Van De Water, former Member Fanning , and Memlier Hunter)
on September 29, 1982 , in Ventura! Coastal, supra, I was "sattisfied that
the not readily discoverable by investigation ' language . . . was intended
to place exactly such a [duty to inquire ] burden on the office ol'the Cam-
eral Counsel at the time it was contemplating approval of a settlement
agreement ." Id. at 298. Notwithstanding the panel's adoption ots this rea-
soning , there remains grounds for doubt on this score in the light of the
reasoning adopted by a differently composed Board panel (former
Member Jenkins, and Members Zimmerman and Hunter ) in another case
decided only slightly more than 2 months later , December 7. Chatrtanooga
Glass Co ., 265 NLRB 691 (1982). There it was suggested that even the
General Counsel's knowledge that the charging party was discharged
during the period before the General Counsel approved a settlement
which the charging party opposed "was not a sufficient basis to obligate
the General Counsel to conduct an investigation of that discharge." Id. at
692.
After close comparison of the rationales in the two cases , I have con.
cluded that those cases are clearly incompatible on the question whether
a Regional Director has a duty to make inquiry about possibleioaal
violations before approving a settlement agreement. r .,
Under more conventional circumstances, I would be inclint •tIre) ,,.
a later decision by the Board as more authoritative than an earlier i hc. .,
But where , as here, one panel of the Board adopted an analysis whjclh is
wholly at odds with an analysis which another panel of the Board ado pt-
ed only 2 months earlier, and where the later decision makes no refix-
ence whatsoever to the former , I am more inclined to view the discrep-
ancy as deriving from some variant on the familiar "riglit head, lell-
hand" phenomenon . In any case , it would be improbable in such circum-
stances that the Board consciously intended in the latter dvcipii to over-
rule the former.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cited case , the settlement was held to bar not only
litigation of a certain presettlement demotion of the
charging party, but also the postsettlement layoff of the
same individual . The latter layoff action , it was held, was
a natural consequence of the former settlement-barred
demotion since the demotion placed the alleged discri-
minatee in a position of vulnerability to layoff at such
future point as the employer might be required to engage
in work force cutbacks . Since the eventual layoff of the
alleged discriminatee had no independently unlawful
character , but depended for its violative character solely
on the allegedly unlawful presettlement demotion, the
settlement was held to bar litigation of both the initial
demotion and the eventual postsettlement layoff. Ibid.
These general considerations in the application of the
settlement bar doctrine will have adverse impact upon
the remainder of the General Counsel's complaint, as I
discuss next.
Having found that there were no "independent" viola-
tions of the Act committed by Respondent during the
postsettlement period , I find it is evident that the presett-
lement matters addressed by the complaint are, prima
facie subject to the Hollywood Roosevelt rule, that they
may not be the subject of a Board finding or remedial
order unless they were specifically reserved from the set-
tlement or, failing that , unless they were unknown to the
General Counsel and were not readily discoverable by
investigation . Since there was no express reservation of
such matters, in the settlement agreement , that fact pre-
cludes the operation of the first exception. I thus focus
below on whether the latter test has been met.
The General Counsel has not made a matter of record
exactly what the Regional Office knew about the now-
complained -of presettlement matters and when it knew
about therm . The question thus arises as to who bore the
burden of making a record on this "knowledge " feature.
I conclude that once it has been shown that a settlement
agreement was taken without reservation , it is incumbent
on the General Counsel to come forward to make a
record on the "knowledge" issue or suffer an adverse in-
ference that it had actual knowledge of all presettlement
conduct which is attacked by the complaint , or that such
knowledge was readily discoverable. This would appear
to be consistent with the traditional manner in which in-
ferences, are drawn against parties who may be presumed
to be utniquely possessed of the facts which would ulti-
mately tell the tale and who fail to introduce those facts.
Thus it is a rule of "common sense" that a party in pos-
session of facts which would enhance its legal position
on a given issue can be expected to make them a matter
of record. And , by parity of reasoning , the failure to in-
troduce any such evidence invites the inference that if
the pertinent facts had been introduced, they would not
have : supported that party's legal position. See generally
Auto Workers (Gyrodyne Co.) v. NLRB, 459 F.2d 1329,
1335-1338 (D.C. Cir. 1972); see also 2 Wigmore Evi-
den ce, § 285, p. 162 (3d ed. 1940).
I.t might be argued that the application of an adverse
inference in these circumstances is inappropriate because,
to avoid such an inference, agents of the General Coun-
sel might be required to give testimony and produce in-
vestigative records relating to the extent of the General
Counsel's knowledge-or the discoverability-of addi-
tional presettlement matters . But there is no prohibition
in the Board 's rules against such a practice ; rather, there
are merely procedural prerequisites which must be satis-
fied before such testimony or production of records may
take place . Thus, the Board 's rules merely require in
such circumstances that Board agents obtain prior "writ-
ten consent" from the office of the General Counsel.
Board Rules and Regulations, Section 102 . 118(a). And to
accord a special exemption to the General Counsel from
the normal application of the adverse inference rule
would, in any case , run contrary to the pronouncement
of the Board in Peyton Packing Co., 129 NLRB 1358
(1961), that "The General Counsel's status before the
Board in these adversary proceedings is no greater than
that of any respondent . In short , the General Counsel is
not a favored litigant, and he is not entitled to any privi-
leges not accorded to any other litigant appearing before
the Board." 129 NLRB at 1360.
Applying the foregoing notions to this unique setting
causes me to conclude that it was incumbent upon the
office of the General Counsel, if it wished to avoid an
adverse inference here, to introduce affirmative evidence
tending to show that it did not possess knowledge of the
alleged presettlement violations and that such violations
were not readily discoverable by investigation. 82
Accordingly, where the General Counsel, the only
party uniquely possessed of information regarding the
scope of its investigation and the extent of its knowledge
of other potential violations when the settlement was ap-
proved, has failed to offer proof about what it knew and
when it knew it , I would draw the adverse inference that
if it had disclosed such facts, they would have indicated
that the General Counsel was either on notice of all the
alleged presettlement violations which eventually found
their way into the complaint , or that such violations
were readily discoverable . And, having drawn such an
inference , I must conclude that the General Counsel is
barred by the November 28 settlement from complaining
about any presettlement conduct by Respondent.
I need not rest on the application of the adverse infer-
ence rule to reach this result , however, for it is reason-
ably clear from this record that all of the now-com-
plained-of presettlement matters were either known, in
fact, to the General Counsel as of November 28, or they
were readily discoverable by investigation. Thus, it may
be presumed that all of the alleged presettlement viola-
tions of Section 8 (a)(1) were part of the General Coun-
sel's investigative case file when the original charge (al-
leging Section 8(a)(1) violations) was settled . And, in any
case, they were not of such a unique or concealed char-
acter as to warrant a supposition that they were not
82 The procedural history of Chattanooga Glass, supra, reflects that
such a burden was implicitly imposed on the General Counsel in that
case . Thus, upon the employer' s raising of the settlement bar issue by
way of a pretrial motion to dismiss, a hearing on the motion was directed
on the grounds that determination of the issues raised by said motion re-
quired a conclusion regarding the extent of the General Counsel's knowledge
"of the [discharge matter being complained of) prior to approval and im-
plementation of the settlement agreement ." 265 NLRB at 693, emphasis
added.
LEEWARD NURSING HOME 1085
readily discoverable during that investigation into similar
8(a)(1) charges.
The alleged presettlement violations of Section 8(a)(3)
were likewise either shown to have been known to the
General Counsel or to have been "readily discoverable."
Thus, in the case of the presettlement disciplinary warn-
ing and suspension of Bustamante related to the August
17 auto crash incident , I have noted in my findings that
Bustamante gave a statement to the Board 's investigator
on September 13. Although the record does not reveal
the contents of Bustamante 's statement , it is probable that
she then revealed the fact of her recent disciplinary sus-
pension . This probability stems from two related circum-
stances noted in findings , above . First , from her trial tes-
timony , it does not appear that she was in possession of
any facts relating to the Section 8(a)(1) charges then
under investigation ; second , the "partial dismissal" of
those charges issued by the Regional Director on Octo-
ber 15 almost certainly refers to the matter of Busta-
mante's suspension.83
In the case of Respondent 's presettlement actions
against Emma Chang, the record does not as clearly
show that the General Counsel had actual knowledge of
those actions before the settlement was approved. Thus,
as I have noted above, it is not clear from the record
whether Chang furnished a statement to the Board
before the settlement , or thereafter, during the investiga-
tion of the eventually withdrawn charge in Case 37-CA-
1973. What is clear, however, is that the adverse sched-
uling and repeated disciplining of Chang prior to the set-
tlement was done openly and had achieved a certain no-
toriety within Respondent's operation . 84 Accordingly,
such treatment of Chang was readily discoverable; and if
the Regional Director was under a duty to inquire about
potential additional violations before approving the set-
tlement ( Ventura Coastal, supra), it is highly likely that
such an inquiry would have revealed the facts on which
the General Counsel now relies to prove the presettle-
ment violations relating to Chang. Thus, as found above,
the settlement was approved on October 28 and the
Union filed the charge in Case 37 -CA-1973 (dealing
with Chang 's alleged mistreatment) on November 4, only
7 calendar days later . It is therefore clear that the Union
was aware by November 4 of the accumulated series of
presettlement actions against Chang. It is highly improb-
able, moreover, that such information only came to the
Union 's attention after it had entered into the settlement.
83 It is worth noting that it is quite normal , as herein, that the investi-
gation of a charge under Sec. 8 (a)(l) of the Act will disclose potential
additional violations under Sec . 8(a)(3). Even if the quoted dismissal
above did not refer to Bustamante's suspension , it is evident, consistent
with standard Board investigative practice , that the investigation ranged
beyond the narrow confines of the original charge (which did not specifi-
cally allege that Respondent had wrongfully suspended an employee).
Thus, the charge is a "triggering mechanism " which will permit the
Board to probe into nonalleged matters which suggest the existence of
additional violations . See, e .g., NLRB v. Font Milling Co., 360 U.S. 301
(1959). Bustamante 's disciplinary suspension was, therefore , readily dis-
coverable, if, arguendo , it was not known to the General Counsel.
94 LPN Anita Lewis , a supporter of the Union 's organizing drive, was
aware of the schedule change affecting Chang and spoke pointedly to
Charge Nurse Toyama on November 4 about what she by then perceived
had been a pattern of Toyama 's "hassling" of Chang in connection with
the change.
Thus, had the Regional Director made inquiry of the
Union before approving the settlement , such inquiry
would have triggered the discovery of the same presett-
lement facts which caused the Union to file a charge
only 7 days later.
It is also clear that the filing of the November 4
charge concerning Chang's mistreatment put the General
Counsel on actual notice of the existence of additional
potential violations . And it is unlikely that Respondent
had taken any substantial action in compliance with the
settlement by that November 4 date . 85 Accordingly,
here, as in Ventura Coastal, supra , the settlement process
had not passed any "fail-safe" point as of November 4,
when the General Counsel clearly received actual notice
of the allegations respecting Chang ; and there appears to
have been no reason why the Regional Director could.
not have withdrawn his approval of the settlement at this
point, pending investigation into the charges about
Chang's alleged mistreatment."
It remains to observe that any illegality in Respond-
ent's postsettlement discharge of Chang for her repeated
failure to adhere to the new schedule is inescapably
grounded in the presettlement decision to reschedule her
hours. In these circumstances, the settlement bar doctrine
applies "prospectively" and likewise bars the complaint
insofar as it alleges that Chang's postsettlement discharge
was unlawful . Ventura Coastal, supra.
Based on all of the foregoing and on the entire record
herein , I enter this summary.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. A preponderance of the credible evidence in the
record as a whole does not support the complaint insofar
as it alleges that Respondent unlawfully:
(a) Transferred Edna Arzadon on November 8, 1982,
from her job as nurse's aide to a job in the dietary de-
partment.
(b) Decided to subcontract housekeeping and dietary
work to ARA Services in December 1982.
(c) Influenced ARA Services not to hire the eight
former dietary and housekeeping employees named in
the complaint.
(d) Threatened reprisals on April 26, 1983, against em-
ployees (Barbara Bustamante) and/or created the impres-
sion that it was engaging in surveillance of employees'
union activities.
(e) Discharged Barbara Bustamante on April 26, 1983.
85 I take notice that the approval of a settlement agreement by a Re-
gional Director is normally followed by certain internal administrative
action, including the preparation of "clean" remedial notices by the com-
pliance divsion , and then the transmission of the same to the respondent
for signing and posting . This process, even in the most effective regional
operation , will normally take several days to accomplish . And it is there-
fore improbable that, as of November 4, Respondent had even begun to
fulfill its settlement commitment by the posting of the remedial notices,
let alone that it had engaged in such notice -posting for any substantial
period of time.
88 Cf. discussion in Ventura Coastal, 264 NLRB at 298.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. St'ion 10(b) of the Act bars all complaint allega-
tions dealing with the imposition of a new schedule on
Emma Chang , and the subsequent series of disciplinary
actions against her , including by suspending her and by
later discharging her for her failure to comply with the
new schedule.
S. The settlement approved by the Regional Director
in Case 37-CA-1936 on October 28, 1982, bars litigation
of all alleged violations occurring before that date, spe-
cifically , those allegations that Respondent unlawfully:
(a) Interrogated or threatened employees in the period
between August 23 and September 27, 1982 , or, in that
same period , created the impression it was engaging in
surveillance of employees' union activities.
(b) Maintained handbook rules restricting distribution
and soli6itation activities by employees.
(c) Issued a disciplinary notice and suspension to Bar-
be`ra Bustaipante in late August to early September 1982.
(d) Imposed a new work schedule on Emma Chang
commencing around October 1, 1982.
(e) Issued a series of disciplinary warnings to Emma
Chang in the period October 1 to 28, 1982.
6. The settlement agreement also bars litigation of Re-
spondent 's issuance of a disciplinary suspension to Emma
Chang in November 1983 and its termination of her in
December 1983 under circumstances where the alleged
illegality in those latter actions is inescapably grounded
in the alleged illegality of Respondent 's presettlement im-
position on Chang of a new work schedule.
In the light of the foregoing findings and conclusions,
intended to dispose of all outstanding complaint allega-
tions , I issue the following recommended87
ORDER
The complaint is dismissed in its entirety.
87 If no exceptions 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.
f