Lincoln Hills Nursing Home

National Labor Relations Board - Board Decisions

Feb 21, 1984

268 N.L.R.B. 996 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lincoln Hills Nursing Home, Inc. and James Tin-
dall. Case 25-CA-13954
21 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 17 January 1983 Administrative Law Judge
Lowell Goerlich issued the attached decision. The
Respondent filed exceptions and a supporting
brief,' and the General Counsel filed cross-excep-
tions, a supporting brief, and a brief in answer to
Respondent'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 briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lincoln Hills Nursing Home, Inc., Tell
City, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(c).
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
administrative law judge.
i The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a The General Counsel has excepted to the judge's imposition of a
narrow cease-and-desist order in view of the nature of the 8(a)(4) viola-
tion found herein and the Respondent's proclivity to commit unfair labor
practices. We find merit in the General Counsel's exception and shall, for
the reasons set forth in Lincoln Hills Nursing Home, 257 NLRB 1145
(1981), and 266 NLRB 740 (1983), provide a broad remedial order against
Respondent.
Chairman Dotson did not participate in the earlier decision and does
not agree with the broad order here.
268 NLRB No. 150
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discriminatorily continue to trans-
fer work out of the maintenance department in
order to avoid returning to employment union par-
tisans or persons who testify under the protection
of Section 8(a)(4) of the National Labor Relations
Act, as amended.
WE WILL NOT lay off or discharge employees for
testifying under the protection of Section 8(a)(4) of
the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed by Section 7 of the
National Labor Relations Act to engage in self-or-
ganization, to bargain collectively through a repre-
sentative of their own choosing, to act together for
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all these things.
WE WILL offer James Tindall immediate employ-
ment and, if his previous job is no longer available,
to a substantially equivalent position, and compen-
sate him for any wages lost by reason of our dis-
crimination against him, with interest.
WE WILL expunge from our files any reference
to the unlawful layoff of James Tindall and inform
him, in writing, that this has been done and that
evidence of this unlawful layoff will not be used as
a basis for future personnel actions against him.
WE WILL restore the status quo ante in the main-
tenance department as it existed prior to the strike
on 29 April 1977 by returning to the department
work transferred out of the department to the jani-
tor, housekeeping employees, and other employees
and WE WILL reinstitute our practice in respect to
contracting out work as it existed prior to the
strike on 29 April 1977 in the maintenance depart-
ment.
LINCOLN HILLS NURSING HOME, INC.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
original charge in this case filed by James Tindall, an in-
dividual, on September 28, 1981, was served on Lincoln
996
LINCOLN HILLS NURSING HOME
Hills Nursing Home, Inc.' (the Respondent), by certified
mail about September 29, 1981. A complaint and notice
of hearing was issued on June 30, 1982. In the complaint
it is alleged that the Respondent laid off James Tindall
and has refused to recall him because he testified at a
Board hearing in Cases 25-CA-11841, 25-CA-12536,
and 25-CA-12578, all in violation of Section 8(a)(1) and
(4) of the National Labor Relations Act, as amended (the
Act).
The matter came on for hearing on September 21, 22,
and 23 in Owensboro, Kentucky, and on October 13 and
14 in Tell City, Indiana. Each party was afforded a full
opportunity to be heard, to call, to examine and cross-
examine witnesses, to argue orally on the record, to
submit proposed findings of fact and conclusions of law,
and to file briefs. All briefs have been carefully consid-
ered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of Indiana.
At all times material herein, the Respondent, a corpo-
ration, with an office and place of business in Tell City,
Indiana (the Respondent's facility) has been engaged as a
health care institution in the operation of a nursing home
providing inpatient medical and professional care serv-
ices for the elderly and the mentally handicapped.
During the 12-month period ending June 30, 1982, the
Respondent, in the course and conduct of its business op-
erations described above, derived gross revenues in
excess of S100,000.
During the 12-month period ending June 30, 1982, the
Respondent, in the course and conduct of its business op-
erations described above, purchased and received at its
Tell City, Indiana facility products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of Indiana.
The Respondent is now, and has been at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section
2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union No.
215, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (the
Union) is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
l The name of the Respondent appears as amended at the hearing.
III. THE UNFAIR LABOR PRACTICES
The Board certified the Union as the exclusive bar-
gaining agent for the Respondent's service and mainte-
nance employees on November 21, 1976. Thereafter on
January 4, 1977, the Respondent and the Union com-
menced contract negotiations. On April 29, 1977, a strike
was engaged which concluded on July 29, 1977. At the
time of the strike Ralph Alvey 2 and Norman Holpp
were the employees in the Respondent's maintenance de-
partment. Both were strikers. Tindall was hired in the
maintenance department on May 2, 1977, and crossed
over the picket line. Thereafter Mike Chenault was hired
on May 4, 1977, as a second maintenance man in the
maintenance department and he likewise crossed over
the picket line. Chenault was laid off on March 22, 1978,
at which time Roger Ambrose, administrator of Lincoln
Hills Nursing Home, Inc., advised Tindall that he was
"going to try to make it with one maintenance man." 3
Thereafter when Tindall asked Ambrose for help, he
"kept putting [Tindall] off." Tindall continued his re-
quest and finally on March 14, 1979, Alvey began to
work part time as the second maintenance man. On No-
vember 27, 1979, the Respondent hired Wayne Carwile
as a janitor. This position had not existed before Car-
wile's hiring. Complaints in Cases 25-CA-11841, 25-
CA-12536, and 25-CA-12578 were filed on July 10, Sep-
tember 4, and October 23, 1980. Thereafter on Septem-
ber 2, 1980, Tindall was injured on the job and went on
medical leave. He was not replaced. Alvey became the
sole full-time maintenance man. Carwile continued as
janitor. Contracting out was utilized and other employ-
ees also performed some of the maintenance department
tasks.
The unfair labor practice charges in Cases 25-CA-
11841, 25-CA-12536, and 25-CA-12578 came on for
hearing January 13, 14, and 15; March 3, 4, and 5; and
April 21, 22, and 23, 1981. Tindall testified as a witness
called by the General Counsel on March 3 and 4, 1981.
Administrative Law Judge Wagman, describing Tindall's
testimony in an unpublished Decision issued on June 9,
1982, stated:
Tindall testified on direct examination that when he
requested Alvey's recall, Ambrose responded in
substance that he would not call Alvey back be-
cause of his involvement with the Union and that
he, Ambrose, would rather contract the mainte-
nance out than recall Alvey. Tindall also testified
about conversations he had during the strike in
April or May 1977, in which Ambrose complained
of his treatment of Alvey at the negotiating table.
Administrative Law Judge Wagman held that because
of his union activities Alvey was in "disfavor with the
Respondent." He further found:
' Alvey was hired on September 24, 1973.
3 Ambrose's correspondence (March 7. 1978) with Dr. Fred Smith
whose opinion he sought indicated that the purpose of eliminating a
maintenance man was economic.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The warning addressed to Tindall upon Alvey's
reinstatement as a part-time employee strongly sug-
gested the motivation for Ambrose's subsequent de-
cision to transfer a significant part of what would
otherwise be Alvey's work to the housekeeping de-
partment and then hire a new full-time employee,
Wayne Carwile, to do it. In light of Ambrose's will-
ingness on prior occasions to engage in unlawful
discrimination to avoid reinstating economic strik-
ers, I find it likely that the transfer of work and
Carwile's hire reflected Ambrose's design to bar
Alvey from full-time status and thus limit his union
activity.
I find here, contrary to Respondent's position
that in November 1979, Ambrose assigned a sub-
stantial portion of the maintenance department's
work to Wayne Carwile, a newly hired employee,
who had not participated in the strike. In remarks
to Tindall, Ambrose admitted that he was hiring
Carwile in response to Tindall's repeated complaints
that he was unable to keep up with the maintenance
work by himself. However, instead of classifying
Carwile as a maintenance employee, Ambrose hired
him as a housekeeping employee and transferred the
maintenance work to him. From these circum-
stances, I find that the workload in the maintenance
department in November 1979 was sufficient to pro-
vide Alvey with full-time employment.
Respondent's efforts to supply an economic
excuse for Ambrose's treatment of Alvey is unsup-
ported by the record. Ambrose's repeated testimony
that it was less expensive for Respondent to assign
former maintenance tasks to Carwile than it was to
permit maintenance employees to accomplish such
tasks is unsupported by any factual data. Respond-
ent failed to show a comparison between the labor
cost due to Carwile's employment and the cost
which would have resulted if Alvey's workweek
had expanded to 5 days. Indeed, my calculations re-
flected that Carwile's 40-hour week was more ex-
pensive than providing Alvey with 3 additional 8-
hour days. In sum, I find it hard to believe that Re-
spondent was able to save money by retaining
Alvey in his 2 to 2 1/2-day schedule and expanding
the housekeeping staff by adding an entirely new
employee who worked a full 40-hour week at an
hourly wage that was $1 less than Alvey's.
In sum, I find that the Respondent has failed to
rebut the General Counsel's showing that Ambrose
was motivated by union animus when he hired
Wayne Carwile and thus rejected Ralph Alvey as a
full-time maintenance employee in November 1979.
Accordingly, I find that by this discrimination, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
The General Counsel and the Respondent offered evi-
dence covering the same subjects included in Adminis-
trative Law Judge Wagman's findings. Such evidence
demonstrates that the situation as it was observed by Ad-
ministrative Law Judge Wagman has continued at least
to the time of the instant hearing. The Respondent has
not rectified its unfair labor practices and still presses its
position taken before Administrative Law Judge
Wagman. Carwile continues to perform the maintenance
work noticed by Administrative Law Judge Wagman,
and other employees as well as contractors are perform-
ing maintenance work which fell within the job require-
ments of Alvey and Holpp before the strike. Hence the
Respondent continues its discriminatory tactics which
have resulted in the denial of a second employee in the
maintenance department. Such conclusions must follow
from Administrative Law Judge Wagman's findings, and
the record before me. In this respect, on the basis of the
record before me, I find no reason to disturb those find-
ings or to depart from them.
Prior to Tindall's testimony in the above-mentioned
unfair labor practice cases Tindall testified that Ambrose
phoned him sometime in December 1980 and "wanted to
know when [Tindall] would return to work." Tindall re-
plied that he "had no idea [since he] was still under the
doctor's care"; to which Ambrose responded that Tindall
"was needed, that there was work to be done. And that
the sooner [he] got back the better." About 2 weeks
before the hearing Ambrose telephoned Tindall again. In
this conversation, according io Tindall, Ambrose asked
Tindall "how [he] was doing" and "wanted to know
when [he] was going to return to work." Ambrose said
that "the work was there and needed to be done and for
[Tindall] to get back as quick as he could." Ambrose
denied that he had uttered the foregoing remarks but ad-
mitted the phone conversations which he said concerned
Tindall's workmen's compensation claim. The adjuster
had been attempting to contact Tindall.4 After Tindall
testified in the unfair labor practice case Ambrose did
not phone him again about returning to work.
While Ambrose denied that he had encouraged the
return of Tindall to employment, he testified that at the
time of the hearing in which Tindall testified he had in-
tended to give Tindall work in the maintenance depart-
ment. Ambrose testified:
Q. At the time of the last hearing Mr. Alvey was
in Mr. Tindall's position and was replacing Mr. Tin-
dall while he was on sick leave, correct?
A. Right.
Q. And Mr. Tindall was due to return from sick
leave at any time, is that correct? It was indefinite
when he was going to return, correct?
A. We didn't know when he was going to return.
Q. You didn't know but you expected him to
return at some time, did you not?
A. Well I expected him to, yes. But we didn't
know when.
Q. But you expected him to?
A. Yes.
4 In regard to these conversations I have credited Tindall. At the time
of these conversations Ambrose had reason not to want to antagonize
Tindall, a potential witness in the upcoming unfair labor practice pro-
ceedings, and by returning Tindall to employment Ambrose could have
(had he insisted on one maintenance man) laid off Alvey, whom the Re-
spondent looked upon with disfavor. Demeanor has been considered.
998
LINCOLN HILLS NURSING HOME
Q. And when he returned it was your intention,
at the time of the last hearing, to return Mr. Alvey
to his part time position and put Mr. Tindall back
into his original position, is that correct?
A. At that time I would say so.
JUDGE GOERLICH: What caused you to change
your mind?
THE WITNESS: Well the fact that we are talking
about January of 81-.
MR. OVERSTREET: March of 81.
THE WITNESS: The fact Your Honor, that we
had went that long with one maintenance man
pretty well proved the fact that we could make it
with one maintenance man.
Also at the time of the above-mentioned hearing Am-
brose testified that he was trying to protect Tindall's job.
Ambrose testified:
Q. Yes. But you told Tindall that you were
trying to protect his job?
A. That's right.
Q. And the job that you were referring to was it
the maintenance position?
A. That's correct.
Q. And that was-and you felt that that was Tin-
dall's job, is that correct?
A. That's correct.
Q. That's what you were trying to protect?
A. That's right.
A. If Ralph Alvey were to leave today I would
offer Jim Tindall a job.
Thereafter on Friday, August 27, 1981, Tindall phoned
Ambrose and advised him that his doctor had released
him for work. Ambrose instructed Tindall to report for
work on Monday, August 31, 1981, unless he was ad-
vised to the contrary. Tindall appeared as instructed on
Monday and commenced work in the maintenance de-
partment where he worked until around 3 p.m. when he
and Alvey were called to a meeting by Ambrose. Am-
brose opened a discussion as to "why he should keep on
two maintenance men." Alvey and Tindall advanced rea-
sons in favor of keeping two maintenance men. Ambrose
disagreed and felt that he should keep Alvey because he
was the senior person. Ambrose suggested that Alvey
and Tindall make the choice; they declined. Ambrose
then chose Alvey and laid off Tindall.
According to Ambrose he allowed Tindall to return to
work because at the time he had not conferred with
counsel and he wanted to handle the matter correctly.
After Ambrose conferred with counsel he took the
action above described.5
After Tindall filed the unfair labor practice charges in
this case he and Ambrose conversed on several occa-
sions. In one of these conversations Ambrose said some-
thing to the effect: "It's very hard for me to forget what
you [Tindall] said on the witness stand."
I According to Ambrose he chose Alvey, "First, I felt that Mr. Alvey
was the better maintenance man. Second, seniority. Third, it might have
cut off any potential backpay from any of the other hearings we had."
While the Respondent was cool toward Tindall be-
cause of his testimony which disclosed the Respondent's
discriminatory treatment of union partisan Alvey, and
looked upon Tindall with disfavor for testifying, a factor
which no doubt strengthened its resolution to lay him
off, nevertheless, the Respondent's action in this regard
was also the proximate result of its insistence on continu-
ing its discriminatory transfer of work from the mainte-
nance department, an unfair labor practice which Ad-
ministrative Law Judge Wagman found. Thus it is clear
that Tindall also became the butt of the Respondent's un-
lawful discrimination. Had the status quo ante been in
effect as it existed prior to the strike Tindall would have
been employed because Ambrose indicated that if a job
had been available in the maintenance department Tin-
dall would have been allowed the job. Moreover, under
the circumstances it is also apparent that Tindall would
have, except for his unfavorable testimony, replaced
Alvey since, as noted by Administrative Law Judge
Wagman, Alvey was in "disfavor with Ambrose" be-
cause of his union partisanship and, as this record dis-
closes, Ambrose had intended to return Tindall to em-
ployment prior to his testimony. Accordingly, based on
the findings of Administrative Law Judge Wagman and
the record before me I find that by laying off James Tin-
dall on August 31, 1981, the Respondent violated Section
8(a)(1), (3), and (4)6 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act and it will effectuate the policies of the Act for ju-
risdiction to be exercised herein.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By unlawfully laying off James Tindall on August
31, 1981, the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(aXl), (3), and (4)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
It having been further found that the Respondent laid
off James Tindall on August 31, 1981, it is recommended
that the Respondent immediately offer him employment
in the maintenance department if the same is not incon-
sistent with the status quo ante in the maintenance de-
partment as it existed prior to the strike of April 29,
1977. In this regard it is further recommended that the
e In reaching this decision I have not been unmindful of and have fol-
lowed the teachings of Wright Line, 251 NLRB 1083 (1980). The Re-
spondent has not rebutted the General Counsel's prima facie case by
showing that it would have laid off James Tindall even if he had not tes-
tified at the Board hearing.
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status quo ante be reinstated and the work which was
then being assigned to the maintenance department be re-
stored to the maintenance department, including the
work transferred to the janitor, the housekeeping em-
ployees, and any other employees of the Respondent,
and that the Respondent's practice in respect to contract-
ing out work be reinstated as it was prior to the strike.
Since it is further apparent that had the Respondent dis-
continued its unlawful acts which resulted in the layoff
of Tindall, his employment would have continued as of
August 31, 1981, it is recommended that Tindall be made
whole for any loss of earnings he may have incurred by
reason of the Respondent's discrimination against him by
payment to him of a sum of money equal to the amounts
he would have earned from the date of his unlawful
layoff to the date of a lawful offer of employment, 7 less
net earnings during such period, with interest thereon, to
be computed on a quarterly basis in the manner estab-
lished by the Board in F W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977).s
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, I hereby issue the following
recommended
ORDER9
The Respondent, Lincoln Hills Nursing Home, Inc.,
Tell City, Indiana, its officers, agents, successors, and as-
signs, shall
i. Cease and desist from
(a) Discriminatorily continuing to transfer work out of
the maintenance department in order to avoid returning
union partisans or persons whose testimony is protected
under Section 8(a)(4) of the Act from obtaining employ-
ment.
(b) Laying off or discharging employees for testifying
under the protection of Section 8(aX4) of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
? It may be that exstriker Norman Holpp is entitled to the job. Laidlaw
Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969); Randall v. NLRB, 687 F.2d
1240 (8th Cir. 1982). This matter is left to the compliance stage of this
proceeding.
' See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
9 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.
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) In conformity with the remedy above set out offer
James Tindall immediate employment, if his previous job
is no longer available, to a substantially equivalent posi-
tion and make him whole for any loss of wages he may
have suffered by reason of the Respondent's unlawful
act, plus interest.
(b) Expunge from its files any reference to the unlaw-
ful layoff of James Tindall and inform him, in writing,
that this has been done and that evidence of this unlaw-
ful layoff will not be used as a basis for future personnel
actions against him.
(c) Restore the status quo ante in the maintenance de-
partment as it existed prior to the strike on April 29,
1977, by returning to the department work transferred
out of the department to the janitor, housekeeping em-
ployees, and other employees and reinstituting the prac-
tice in respect to contracting out as it existed prior to
April 29, 1977, in the maintenance department.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Tell City, Indiana, copies of
the attached notice marked "Appendix." °1 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint alle-
gations which are not the subject of specific findings
herein be dismissed. " X
1' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
11 In drawing this decision the entire record has been considered.
Nothing has been pretermitted.
1000