Lillian Abrahamson Nursing Home

National Labor Relations Board - Board Decisions

Feb 17, 1969

174 N.L.R.B. 551 (N.L.R.B. 1969)

2520 MADISON CORP.
2520 Madison Corporation d/b/a Lillian
Abrahamson Nursing Home and Hospital and
Nursing Home Division , Local 451 , Culinary
Workers and Bartenders , Hotel & Restaurant
Employees & Bartenders International Union,
AFL-CIO. Case 19-CA-3978
February 17, 1969
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 15, 1968, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, 2520 Madison
Corporation d/b/a Lillian Abrahamson Nursing
Home, Everett, Washington, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
'Regardless of the date of passage of title, it is clear that Mr McLean
acted in the capacity of administrator of the nursing home prior to March
19, 1968 , and his acts and conduct are attributable to Respondent
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT , Trial Examiner : This matter was
heard at Seattle , Washington on July 30 and 31, 1968.
The complaint , issued May 23, 1968, and based upon
charges filed March 29, May 20 and May 23, 1968, by
Hospital and Nursing Home Division , Local 451,
Culinary Workers and Bartenders , Hotel & Restaurant
Employees & Bartenders International Union , AFL-CIO,
551
herein called the Union, alleges that Respondent, 2520
Madison Corporation d/b/a Lillian Abrahamson Nursing
Home had engaged in unfair labor practices within the
meaning of Section 8(a)(5) and 8(a)(1) of the Act. Briefs
have been submitted by the General Counsel and
Respondent.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following-
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
2520 Madison Corporation, d/b/a Lillian Abrahamson
Nursing Home is a Washington corporation engaged in
the operation of a proprietary nursing home at Everett,
Washington. Respondent took over the operation of the
Lillian Abrahamson Nursing Home, previously operated
by Abrahamson, during the month of March 1968. Since
that date, Respondent has derived ` gross revenues
therefrom at a rate in excess of $100,000 per annum and
has purchased goods and materials from suppliers located
outside the State of Washington, or from suppliers located
inside Washington who in turn receive said merchandise
from outside that State, at a rate in excess of $5,000 per
annum. Respondent projects for the fiscal year beginning
July 1, 1968, gross revenues in excess of $100,000 and
purchases of supplies in excess of $5,000 from sources
outside the State of Washington. I find that the operations
of Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hospital and Nursing Home Division , Local 451,
Culinary Workers and Bartenders , Hotel & Restaurant
Employees & Bartenders International Union, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issues
Respondent assumed operation of this nursing home no
later than early or mid-March of 1968. This was a
functioning concern, there was no interruption of
operations, there were no basic occupational changes and
substantially all personnel were retained, including Head
Nurse Charmaine Slattery. The corporation is controlled
by two doctors and Ward McLean was designated by
them as administrator of the home and the superior of
Slattery. McLean also administers three other nursing
homes operated by Respondent in Seattle, Washington.
The Union conducted an organizational campaign
among these employees both before and after the takeover
with authorization cards signed during February and
March On March 12, the Union filed a petition for an
election and on March 15, it wrote to Respondent.
Therein, it requested recognition; offered to prove its
majority; and proposed bargaining for a contract. This
demand was in the hands of McLean on March 19. As of
that date, the Union had 27 cards from the 40 or 41
employees in the unit, all signed on or before March 15
but for one signed on March 17.'
'The parties agreed that there were 40 in the unit A janitor and
maintenance man, Harold Lowman, makes the total 41
174 NLRB No. 86
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that Respondent interrogated its
employees concerning union activities, granted benefits,
threatened loss of previously granted benefits, sponsored a
petition repudiating the Union and unilaterally changed
working conditions, all within the meaning of Section
8(a)(1) of the Act. It further alleges that on or after
March 19, 1968, Respondent refused to bargain with the
Union, within the meaning of Section 8(a)(5) of the Act.
B. Interference, Restraint, and Coercion
1. Sequence of Events
Promptly after receipt of the demand for recognition on
March 19, Respondent took steps to counteract the
Union's campaign.' Administrator McLean respectively
summoned Assistant Cook Mabel Searle and Head Cook
Marie Ensign to the office, told them that they were to be
supervisors and announced a pay raise of 10 cents per
hour effective immediately. Respondent conceded that it
did not regard this as a promotion to supervisory status.
The record discloses that these two employees, and
particularly Searle, had been most active in signing up
union members. Indeed, Head Nurse and Assistant
Administrator Slattery had indicated to Searle on or
about March 8 her awareness of the organizational
campaign.
McLean similarly gave 10-cent raises to three nursing
aides, Florence Serviss, Norma Callis and Bertha Kona,
telling them that they would thereafter be supervisory
aides. Respondent does not contend that they thereby
became supervisors and I find that this involved little
change of duties.
Shortly before the end of March and apparently about
March 27, McLean called a staff meeting during the
change between the day and afternoon shifts with
employees of both in attendance. It is undisputed that on
this occasion McLean promised a 10-cent wage increase to
all employees, effective July 1; a new vacation plan with 1
week after 1 year's employment and 1 additional day per
year up to a total of 4 weeks, as contrasted with the
existing policy of only 1 week; and 2 paid holidays, as
contrasted with the existing policy of none.
One or two days later, McLean held another staff
meeting According to Mabel Searle, McLean stated that
he had learned that certain girls were interested in the
Union and had signed up. He added that this would
require him to negotiate with the Union, that this would
tie his hands and that negotiations might last 12 to 18
months. In that event, he might be unable to fulfill the
three promises he had made at the previous meeting.
He suggested that the girls sign a petition repudiating
the Union as their negotiating agent. McLean admitted
herein that he brought to this meeting a typed document
containing such language. According to Ensign, he said
that if the girls wanted to draw up a petition he would
take it "and see if they would withdraw."
The testimony of McLean here leaves much to be
desired. Although testifying that several employees had
brought this paper to him, he also conceded that he
brought the document to the meeting and proceeded to
speak about it. While cautioning the girls not to copy the
petition word for word, McLean left the document with
them and departed the scene. Signatures thereto were
TThere is some variation in the testimony as to the precise dates of the
events detailed below . It is undisputed, and I find , that they occurred after
March 19 and prior to the end of that month.
solicited by one, Norma Derrick, a registered nurse and
McLean's assistant, who devotes her time to checking
conditions in all four of the nursing homes operated by
Respondent. While Respondent does not concede that
Derrick is a managerial employee and a supervisor,' the
fact is that McLean provided and left the sheet of paper,
that Derrick supervised its copying in longhand by an
employee, Lipps, and that Derrick then proceeded to
solicit signatures thereto. I find, in this context, that
Derrick, who is excluded from the bargaining unit, was
acting as an agent of Respondent
Later that day, McLean summoned the 4 p.m. shift to
the lunchroom. As Carol Erickson testified, McLean
stated that he understood the employees favored
unionization and told them what Respondent would offer
if they signed a slip of paper which he passed down to the
girls. This was a typewritten document, not the
handwritten copy made earlier that day by Lipps, it
decreed that the signers did not want the Union and
would go along with Respondent. I find, as Erickson
testified, that McLean made clear that this meant
retaining the previously promised benefits, including the
July 1 raise in pay, an improved vacation plan and the
two holidays
McLean further spoke with the employees of the
graveyard shift. He explained, as Eileen Blankenburg
testified, that it would be a long time before the Union
could benefit them. He said he wanted to be fair and give
them a chance to obtain their pay raises, increased
vacations and two holidays and then proceeded to ask
Blankenburg to sign the petition.
The wage increases were granted in July, as promised,
and it appears that Respondent has also put into effect the
other two promised changes. At no time were these taken
up with the Union and its demand for recognition has
been completely ignored.
A word here about the testimony of McLean is perhaps
in order. Where in conflict with that of the witnesses
heretofore set forth, it is not accepted. He strove to
convey his precise shading of events even though the facts
were to the contrary. For example, he persisted that
Respondent took over the nursing home on April 1, a date
subsequent to the conduct attacked herein by the General
Counsel. Yet, the record was replete with evidence that
McLean was already on the scene when the Union's
demand for recognition was received on March 19 and
when the March staff meetings were held. Indeed, his own
testimony so discloses.
He claimed that the petition emanated from two rank
and file employees who asked him to present this to the
appropriate authority, presumably the Board. However, he
admitted that in his desire to help them he suggested some
changes in wording and agreed to submit this to the
Board.'
The simple answer is that he admittedly brought the
petition to the meetings and introduced to the employees
the concept that they should sign it, thereby repudiate the
Union, and thus receive the recently promised benefits.
Perhaps his own testimony is best descriptive here, where
he testified that he wished only the owners to receive
credit for benefits granted to employees.
He attempted further to defend his activities on the
premise that he was attempting to bring wage rates in this
nursing home in line with those in the three other homes
'Despite the fact that McLean also divides his time among all four
homes
'The ultimate fate of the petition is not disclosed herein.
2520 MADISON CORP.
and also to comply with the new federal minimum wage.
This claim overlooks the wage raises given to some
employees in March and the fact that several employees
already receiving wages'in excess of the federal minimum
did receive additional wage increases.
2. Conclusions as to interference, restraint, and
coercion
I find that the initial pay raises to Searle and Ensign
were motivated by their union activities and constituted an
effort to influence them against union support. The
ostensible reason that they had become supervisors is not
supported by the record . Viewed similarly are the raises to
Serviss, Callis and Kona. See General Electric Co. v.
N.L.R.B ., 400 F .2d 713 (C.A. 5).
The announcement of changes in working conditions for
the entire staff, including the July 1 pay raise, the
improved vacation plan and the new holiday plan, but 8
days after receipt of the Union ' s request for recognition
can only be viewed , on this record , as a blatant attempt to
seduce these employees away from their efforts to better
working conditions through the Union. N L.R.B v.
Exchange Parts Co, 375 U.S. 405.
That this was so motivated is demonstrated by
McLean ' s sponsorship within 1 or 2 days of an attempt to
procure signatures repudiating the Union . Indeed, he in
effect put forth the spectre that failure to abandon the
Union could result in holding up the promised benefits for
many months . The fact is that he introduced the concept
of rejecting the Union by means of a petition and his top
assistant solicited signatures thereto on the first shift.
McLean in person then solicited signatures to the petition
among employees of the other two shifts.
I find that the foregoing amply supports the position of
the General Counsel that Respondent granted benefits to
employees to counteract their union activities , threatened
their loss 'in the event of unionization, and sponsored a
petition repudiating the Union . It also follows that
Respondent unilaterally changed working conditions and
ignored the designated bargaining representative , as will
appear below . I further find that by the foregoing conduct
Respondent has interfered with , restrained and coerced its
employees in the exercise of the rights guaranteed in
Section 7 , thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
C. Refusal to Bargain
1. Appropriate unit
The complaint alleges that all employees of Respondent
at its Everett , Washington nursing home , excluding office
clerical and professional employees , registered nurses,
licensed practical nurses, guards and supervisors,
constitute an appropriate bargaining unit. This is a basic
and common single facility unit The rank and file
employees are spread over three shifts, all are involved
directly or indirectly in the care of patients and they
include kitchen workers , nurses aides and laundry
workers. I find that the above -described unit , including the
janitor-maintenance man, constitutes a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
553
2. Majority representation
There were 41 in the appropriate unit at the time
material herein. The General Counsel has introduced in
evidence 27 authorization cards, all signed prior to the
receipt by Respondent on March 19, 1968, of the Union's
request for recognition.
The cards are clear on their face and state simply that
the signers authorize the Union to represent them for the
purposes of collective bargaining. There is substantial and
uncontroverted evidence that those who solicited the
signatures similarly explained only that the purpose of the
card was to authorize the Union to bargain with
Respondent
The cards were authenticated either by the signatories
or by the solicitors and recipients of the cards. In one
case, that of Prinsibina Avila, Avila authorized her
mother to sign her name. In another case, that of Rosa
Lee Johnston who was convalescing from a back injury,
her daughter testified that she witnessed the signature.
I have carefully considered the testimony concerning
each of the 27 cards and find that they constitute reliable
evidence of the intent of the signers. I further find that on
March 19, 1968, the Union was and now is the
representative of the employees in the above-described
appropriate unit within the meaning of Section 9(a) of the
Act.
3. The refusal to bargain
Respondent received the Union's request for recognition
on March 19. It at no time raised any issue as to the
appropriateness of the unit and it has not challenged the
claim of the Union to majority representation. Indeed, it
never replied to the letter and has continuously ignored
the Union. This alone constitutes evidence that it has
evaded its obligations under the Act.
But Respondent went further. It took active steps to
undermine the Union's majority status. It immediately
granted wage increases to five key employees, these
including two of the principal organizers, on the fiction
that they had been promoted to supervisory status. On or
about March 27, it announced an across the board wage
increase and improved vacation and holiday benefits.
Shortly thereafter, Administrator McLean warned the
employees that the advent of the Union might prevent
Respondent from putting these' improvements into effect
for many months and coupled this with a suggestion that
they sign a petition repudiating the Union.
Indeed, he brought a prepared petition to the meeting
of the first shift and thereafter personally solicited
signatures to copies of the petition on the second and third
shifts. Finally, Respondent ultimately put these improved
working conditions into effect and entirely ignored the
Union.
The evidence strongly preponderates in favor of the
position of the General Counsel that by the foregoing
conduct Respondent refused to bargain in good faith. I
find that Respondent has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(5) and,
derivatively, Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III and
occurring in connection with its operations set forth in
section I, above, have a close, intimate and substantial
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.' I shall
recommend that Respondent be ordered to recognize the
Union and, upon request, bargain with it concerning rates
of pay, wages, hours and other terms and conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement.
The unfair labor practices committed by Respondent
amount to an evasion of its obligations under the Act and
conduct in derogation of the principles of good faith
collective bargaining. The inference is warranted that
Respondent maintains an attitude of opposition to the
purposes of the Act with respect to the protection of
employee rights in general . It will accordingly be
recommended that Respondent be ordered to cease and
desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1. 2520 Madison Corporation d/b/a Lillian
Abrahamson Nursing Home is an employer within the
meaning of Section 2(2) of the Act.
2. Hospital and Nursing Home Division, Local 451,
Culinary Workers and Bartenders, Hotel & Restaurant
Employees & Bartenders International Union, AFL-CIO
is a labor organization within the meaning of Section 2(5)
of the Act.
3. All employees of Respondent's nursing home in
Everett, Washington, excluding office clerical and
professional employees, registered nurses, licensed
practical nurses, guards and supervisors, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The above-named labor organization was on March
19, 1968, and now is, the exclusive representative of the
employees in the above-described appropriate unit within
the meaning of Section 9(a) of the Act.
5. By refusing on March 19, 1968, and thereafter, to
recognize and bargain with the Union, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By the foregoing conduct; by unilaterally granting
pay raises, vacation and holiday benefits; by threatening
their withdrawal; and by sponsoring a petition repudiating
the Union, in the context of a union organizational
campaign, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
'This remedy is not intended in any manner to suggest that Respondent
not retain or that it change adversely to employees existing conditions of
employment
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent,
2520 Madison Corporation d/b/a Lillian Abrahamson
Nursing Home, Everett, Washington, its officers, agents,
successors and assigns shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Hospital
and Nursing Home Division, Local 451, Culinary
Workers and Bartenders, Hotel & Restaurant Employees
& Bartenders International Union, AFL-CIO, as the
exclusive representative of its employees at Everett,
Washington, excluding office clerical and professional
employees, registered nurses , licensed practical nurses,
guards and supervisors.
(b) Unilaterally changing working conditions,
threatening the loss of improved working conditions, or
sponsoring petitions repudiating union representation, in
the context of a union organizational campaign, or in any
other manner interfering with, restraining or coercing
employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with the above-named labor organization as the exclusive
representative of the employees in the above-described
appropriate unit with respect to rates of pay, wages, hours
of work, or other terms and conditions of employment,
and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its nursing home in Everett, Washington,
copies of the notice attached hereto and marked
"Appendix."6 Copies of said notice on forms provided by
the Regional Director for Region 19 shall, after being
duly signed by Respondent, be posted by it immediately
upon receipt thereof and maintained for a period of 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of receipt of this
Decision what steps it has taken to comply herewith.'
`In the event this Recommended Order be adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
'In the event this Recommended Order be adopted by the Board, this
provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
2520 MADISON CORP. 555
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL recognize , and, upon request , bargain
collectively with Hospital and Nursing Home Division,
Local 451, Culinary Workers and Bartenders , Hotel &
Restaurant Employees & Bartenders International
Union , AFL-CIO as the exclusive bargaining
representative of all employees at our nursing home in
Everett, Washington , excluding office clerical and
professional employees , registered nurses, licensed
practical nurses, guards and supervisors , with respect to
rates of pay , wages, hours of work or other terms and
conditions of employment , and, if an understanding is
reached , embody such understanding in a signed
agreement.
WE WILL NOT unilaterally change working
conditions , threaten the loss of improved working
conditions , or sponsor petitions repudiating union
representation , in the context of a union organizational
campaign , or in any other manner interfere with,
restrain or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the above-named or any other labor
organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection and to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section
8(a)(3) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
25 20 MADISON
CORPORATION D/B/A
LILLIAN ABRAHAMSON
NURSING HOME
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98 101, Telephone 583-7473.