Santa Cruz Care

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 838 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Belcor Incorporated d/b/a Santa Cruz Care and
Guidance Center and Consolidated Industries, Inc.,
and Hospital and Institutional Workers Union, Lo-
cal 250, Service Employees International Union,
AFL-CIO. Case 32-CA-151 (formerly 20-CA-
12465)
September 29. 1978
DECISION AND ORDER
BY MEMBERS PENEI.I.O, MURPHY, AND TRUESDALE
On January 6, 1978, Administrative Law Judge
Martin S. Bennett issued the attached Decision in the
above-entitled proceeding, finding that Respondents
had engaged in conduct violative of Section 8(a)(1) of
the National Labor Relations Act, as amended, but
that they had not violated Section 8(a)(3) of the Act
by discharging employee Linda Thornton. There-
after, the General Counsel filed exceptions and a sup-
porting brief, and Respondent filed a reply brief.
By Order dated May 2, 1978. the National Labor
Relations Board remanded the instant proceeding to
the Administrative Law Judge for the purpose of pre-
paring and issuing a supplemental decision setting
forth resolutions of credibility of witnesses and con-
taining new findings of fact, conclusions of law, and a
recommended order in light thereof: On August 9,
1978. the Administrative Law Judge issued his Sup-
plemental Decision, also attached hereto, in which he
resolved the credibility of witnesses, made additional
findings of fact, and reaffirmed his conclusions of law
and recommended Order as made on January 6,
1978. Thereafter, the General Counsel filed excep-
tions to the Administrative Law Judge's Supplemen-
tal Decision and a brief in support of exceptions, and
Respondent filed a reply brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record and the
attached Decision and Supplemental Decision in light
of all the exceptions and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondents, Belcor Incorporated
d/b/a Santa Cruz Care and Guidance Center and
Consolidated Industries, Inc., Santa Cruz, California,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
DECISION
SIAIEMENI OF IHE CASE
MARTIN S. BENNETr, Administrative Law Judge: This
matter was heard at Santa Cruz, Califbrnia, on July 28,
1977. The complaint, issued April 29 and later amended,
based upon charges filed February 11 and April 28, 1977,
by Hospital and Institutional Workers Union, Local 250,
Service Employees International Union, AFL-CIO, herein
the Union, alleges that Respondents, Belcor Incorporated
d/b/a Santa Cruz Care and Guidance Center, herein
Belcor, and Consolidated Industries, Inc., herein CII, have
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (I) of the Act. Briefs have been sub-
mitted by the General Counsel and Respondent.'
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following:
FINDIINGS OF FAC(I
1. JURISDI(I IONAI FINDINGS
Belcor Incorporated d/b/a Santa Cruz C'are and Guid-
ance Center is a California corporation operating a number
of proprietary hospitals in the State of California, including
a nursing care facility at Santa Cruz, California. It annually
enjoys gross revenues in excess of $250,000 and receives in
excess of $50,000 from the State of California's Medi-Cal
program. I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
11. IHiE .ABOR OR(iANIZAITION INVO(I VED
Hospital and Institutional Workers Union, Local 250,
Service Employees International Union, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
II1. IHE A.LEGCED UNFAIR I AB()R PRA( II( ES
A. Introduction,' the Issues
The complaint alleges that in October and November
1976. Respondent Belcor, by its Supervisor E. Dorris Chi-
solm, instructed employees to engage in surveillance of the
union activities of employees. It further alleges that on or
about February 3, 1977, Respondent Belcor discharged
Linda Thornton because of her union or concerted activi-
ties. Respondent has disputed the supervisory status of Chi-
solm, and this is treated below.
The parties have stipulated that the Union filed a petition
I A motion by the General Counsel to correct the transcript in tsvo minor
respects is unopposed and is hereby granted
238 NLRB No. 111
838
SANTA CRUZ CARE & GUIDANCE CENTER
for an election on September 30, 1976, in Case 20 RC
13795 and that a hearing was held on November 2 and 5.
1976. A Decision and Direction of Election was issued by
the Regional Director on December 17, 1976, and this elec-
tion was duly conducted at the Santa Cruz facility of Belcor
on January 21, 1977. The tally of ballots disclosed 34 votes
for the Union. 6 against. and 2 challenged ballots. A certifi-
cation issued on January 31. 1977. for a unit including.
basicallI. all employees employed at the nursing facility
with the exclusion of registered nurses, office clericals.
guards. and supervisors. Thornton was not in the unit. It
may be noted at this point, and I so find, that in the repre-
sentation case. Respondent stipulated that Chisolm was a
supervisor for Belcor. There is no substantial contrary evi-
dence herein.
Belcor, Inc., d/b/a Santa Cruz Care and Guidance Cen-
ter and Consolidated Industries, Inc., share the same office
space and telephone number in Fresno, California. Clyde
Dahlinger, the president of Belcor, and Dorris Chisolm, the
administrator at Santa Cruz, possess business cards which
are embossed with the words "Belcor, Inc." There is ample
evidence of common labor relations and management. In-
deed, Chisolm, no longer with these firms, consulted with
Dahlinger on a number of personnel matters during her
tenure as administrator. This included whether the alleged
discriminatee, Thornton, should be granted a wage in-
crease. Respondent has contended that Chisolm was an em-
ployee of CII, but the simple answer is that she actually
hired and discharged employees at the Santa Cruz facility.
This amply demonstrates that the two corporations are in
fact a single integrated employer. The record demonstrates
that from June 1976 until July 1977 Chisolm interviewed.
hired, discharged, issued warnings to, and trained employ-
ees, including Thornton. As noted, at a representation hear-
ing in November 1976. her status as a supervisor of Respon-
dent Belcor was stipulated to by the parties. I find that at
all times material herein she was a supervisor within the
meaning of the Act in behalf of this integrated employer
and particularly Belcor.
B. Inter/erence, Restraint, and Coercion
Linda Thornton was hired as a medical records clerk at
$2.40 an hour on August 6. 1976. and was promoted I
month later to billing clerk at a monthly salary of $520 per
month. In January 1977, she received a raise to $550, which
applied to all billing clerks for hospitals in the system. After
6 months. she was raised to $565 per month. She testified
that during October, when the Union was organizing, she
learned about it from coworker Marcella Jones. She further
testified that early in November, with Jones present. Chi-
solm told the two ladies that the Union was attempting to
organize the hospital, that they should be on the alert. and
if they heard anything to let her know about it. She further
testified that early in December. again with Jones present,
Chisolm stated that the Union was attempting to win an
election in the hospital and that after Jones left the room
Chisolm told her to be aware of the union activity and to
advise her about everything that was going on in the facil-
ity. According to Thornton, she never made any reports to
Chisolm about union activities in the hospital.
Jones, no longer in the employ of Respondent, worked
there from September 14. 1976, through May 21. 1977,
when, on her own initiative. she quit the employ of Respon-
dent. She. in effect. confirmed the testimony of Thornton
about Chisolm telling them about the union activities in the
facility. She attributed to Chisolm statements that she
wanted to be kept informed of things going on in the facil-
ity with respect to the union campaign. She later testified
that Chisolm told her that she wished to be advised of
everything going on in the nursing facility concerning union
activity.
Chisolm testified that Thornton and Jones were in her
office and asked her about the Union in November and
December. She recalled only that she told them they could
not participate and that it would have to be on their own
time. She denied that she ever asked them to gather infor-
mation concerning union activities in the facility, although
she conceded that she told them that a representation peti-
tion was pending. As noted, Thornton was not in the unit
and neither was Jones. Jones was a record clerk and her
duties were different from those of Thornton. but they
shared an office and answered the telephone. Chisolm later
testified that she just told the two ladies to be generally
aware of what was going on in the hospital but did not
mention the Union. Directly thereafter she testified, how-
ever. that she asked both ladies if there was any union in-
formation in the facility that Chisolm should see.
Chisolm was not an impressive witness and. indeed, on
cross-examination was evasive. I credit the testimony of
Thornton and Jones that Chisolm instructed them to report
to her on union activities in the hospital and. in effect, fur-
ther instructed them to conduct surveillance of union activi-
ties in the hospital. this within the meaning of Section
8(a)(I) of the Act.
C. I7he Discharge of Linda iihornion
Initially. it should be noted that Thornton had little, if
anything, to do with the Union. She did express interest to
Jones and another coworker about voting in favor of the
Union. although she was not in the unit, but expressing her
hope that the Union would win. Jones testified that she
received a union card and informed Chisolm thereof; as
noted, Jones was not terminated and quit on her own there-
after. Indeed, Jones volunteered to Chisolm that she in-
tended to sign a union card. Jones attended union meetings
but Thornton, according to Jones, never did. Jones also
confirmed the fact, as Thornton testified, that Thornton re-
fused to sign a card.
According to Chisolm, she was due to depart on her va-
cation late in November 1976. She spoke with Thornton on
this occasion about not filing claims for patients under
Medi-Cal which were to be filed, under the regulations., in
the previous month. She estimated the loss to Respondent
at $1,800. but it otherwise appears at $1,300. When she
returned from her vacation, she contacted a local emplos-
ment agency to find another bookkeeper. She interviewed a
number of applicants until she hired the present bookkeep-
er, named Nixon. around the end of January. 2
:As indicated, on Januars 1 1977. a wage Increase w'as granted to all
billing clerks Chisolm questioned whether this should be given to Thornton.
but was instructed that it should he given toL all bookkeepers and it would be
uniair to dens It to Thornton
839
8D. CISIONS OF NATIONAL LABOR RELATIONS BOARD
Around February 2, according to Chisolm, and this is
uncontroverted. a conservator for the funds of some of the
patients contacted her. Chisolm claims that she worked all
that day, that evening, and the following day to find out
where the discrepancies were and that there were many: she
then decided to terminate Thornton. She also claimed that
she worked for a 32-hour period to ascertain the nature of
the discrepancies.
On February 3. she called in Thornton and told her she
was not doing the job and was being terminated. Thornton
asked if she could stay another week, and Chisolm declined
because of her poor performance. In essence, Chisolm had
intended to replace Thornton, but the phone call from the
conservator, Young, triggered the incident.
To sum up, there is no evidence that Respondent had any
knowledge of any union activity on the part of Thornton,
and, indeed, the record so demonstrates. She chose not to
sign a union card and never attended the union meeting; as
indicated, she was not in the bargaining unit. Jones in-
formed Chisolm of her intention to sign a card, never men-
tioning Thornton, and Jones was not discharged. Stated
otherwise, Jones was a dedicated union supporter, informed
Chisolm that she intended to sign a union card, did sign a
card and was not discharged. In view of the foregoing, I
find that the evidence does not preponderate in favor of the
position of the General C'ounsel as to the discharge of
Thornton.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CoN('Il.SIONS () IO ,AW
1. Belcor Incorporated d/b/a Santa Cruz Care and
Guidance Center and Consolidated Industries, Inc., are em-
ployers within the meaning of Section 2(2) of the Act.
2. Hospital and Institutional Workers Union. Local 250,
Service Employees International Union, AFL ('IO, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. By directing employees to engage in surveillance of
union activities and report same to Respondents, Respon-
dents have engaged in unfair labor practices within the
meaning of Section 8(a)(l ) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not otherwise engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, I shall recommend that they cease and de-
sist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER'
The Respondents, Belcor Incorporated d/b/a Santa Cruz
('are and Guidance Center and Consolidated Industries.
Inc., Santa Cruz. California, its officers, agents. successors,
and assigns,shall:
1, ('ease and desist from:
(a) Instructing employees to engage in surveillance of
union activities and report same to management.
(hb) In any like or related manner interfering with, re-
straining. or coercing employees in the exercise of the rights
guaranteed under Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its premises at Santa Cruz. California. copies
of the notice attached hereto and marked "Appendix."4
Copies of said notice, on forms provided by the Regional
Director for Region 32, shall, after being duly signed by
Respondents, be posted by them 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 no-
tices are not altered, defaced. or cov ered by any other mate-
rial.
(b) Notifv the Regional Director for Region 32. in writ-
ing, within 20 dass from the date of this Order, what steps
Respondents have taken to comply therewith.
' In the event no exceptions are filed as provided bs Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted bh the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived oIr all purposes.
In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted b5 Order of the
N;ational Labor Relations Board" shall read "Posted Pursuant to a Judgment
,of the U nited States Court of Appcals nfoircing an Order oft the National
.ah or Relations Boaird"
APPENDIX
No1 Ii'i To EMI.)OYtES
POSTEI) BY ORDER o()r 1 li
NAFrIONAL LABOR RELAIIONS BOARI)
An Agency of the United States Government
WE WILL No01 direct employees to engage in surveil-
lance of the union activities of employees on behalf of
Hospital and Institutional Workers Union. Local 250,
Service Employees International Union, AFL CIO, or
any other labor organization.
WE WIE L NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the National Labor Re-
lations Act.
All of our employees are free to become or remain mem-
bers of the above-named or any other labor organization.
BEI('R() INC(ORPORATI D D)/B/A SANTA C(RUZ CARE
ANt) GUIDAN('E C(NIIR
CONSOII)DAtIED INDi)USRIES. IN(C.
840
SANTA CRUZ ('ARE & G;UIIDANCE (CENTER
SUPPLEMENTAl. DE(CISION
MARTIN S. BENNET', Administrative law Judge: On
January 6, 1978. 1 issued a Decision in this matter wherein
I concluded that Respondents had engaged in conduct vio-
lative of Section 8(a)(1) of the Act hut that they had not
violated Section 8(a)(3) thereof by discharging employee
Linda Thornton. On May 2, 1978. the Board remanded this
matter to me for the purpose of preparing a Supplemental
Decision resolving credibility as to conversations allegedly
held on February 2 and 3, 1977. between Thornton and her
supervisor. Dorris Chisolm. and also containing new find-
ings of fact, conclusions of law, and a recommended Order.
Thereafter. sua sponte, the General Counsel submitted a
brief to me concerning this issue. I issued an Order accord-
ing the parties an opportunity to respond thereto, and a
reply brief has been submitted by Respondent.
Initially. it may be noted that Respondent objects to the
filing of this sua sponte brief on the basis that the Rules and
Regulations of the Board do not provide for such a filing.
Respondent therefore asks that I disregard such brief.' In
an, event. Respondent then continued to treat with the is-
sue at hand.
FINI)IN(s ()Of FACT
Respondent has stated, consistent with my initial treat-
ment of the matter, that credibility resolutions were unnec-
essary. Nevertheless, the Board has directed me to make
such resolutions and I deem this to be binding upon me.
Consistent therewith. I approach the issue of the credibility
resolutions lie nomo.
Not treated in the initial Decision was the fact that this
was a nursing care facility devoted to the care of mental
patients: this is undisputed. As previously noted, the lUnion
substantially won an election held on January 21, and
Thornton was not discharged until February 3, 1977.
I am well aware that in treating with the 8(a)( I) aspect of
the case I found that Chisolm was evasive. It does not per-
force follow that she was evasive as to other matters in the
case.
Thornton testified that she had a conversation with her
superior. Chisolm, on the day before her discharge on Feb-
ruary 3. and that no one else was present. She claimed that
she asked Chisolm if there was some question about the
bookwork she was doing. Chisolm allegedly replied that
Thornton was not a good bookkeeper because "you don't
tell me everything." Thornton then allegedly asked if there
was something specific that she had not told her. Chisolm
replied that there were "things that have happened in this
hospital that you haven't told me about." The conversation
ended at this point.
Thornton further testified that the office in which she
worked was separated from the rest of the facility by locked
doors. She and her coworker Jones, who is discussed in the
original Decision, decided whether persons could enter the
wards. If there were any questions. they consulted Chisolm.
Individuals whom she did not know would enter these
doors through keys in their possession She conceded that
I have read both briefs. Even if this contention of Respondent is correct.
the findings reached belote would he unchanged
Chisolm had asked her about unauthorized persons enter-
ing the wards.
Thornton conceded that in approximately mid-Novem-
ber 1976 Respondent lost approximately $1.300 because of
her tardiness in submitting the appropriate forms, identified
herein as MC-170, to the State of California. Chisolm
placed this amount at $1,800. Indeed, Thornton conceded
that Chisolm mentioned this dereliction upon her part at
the time of her discharge. She further conceded that in mid-
November, at the request of Chisolm, she provided the lat-
ter with a list of the patients and the amounts of money
lost. She further conceded that one Hickey of the local
Communit, Health Center went through the doors into the
wards whenever he chose and, further, that Chisolm had
told her. "Be careful who goes through the doors."
Approaching the testimony of Chisolm, it is interesting
and significant that she left the employ of Respondent on
Juls 15 but testified herein on July 28. Chisolm testified
uncontrovertedly that she spoke with Thornton and co-
worker Jones about representatives of an organization from
a local college entering the premises: this organization is
identified only as "Psychiatric Inmates Rights Collective."
Apparently. the trigger incident resulted from the follow-
ing. Chisolm testified uncontrovertedly. and I find, that
most of the patients of this institution came from Monteres
Countx. She testified, and I further find, that one Bruce
Young, who is a conservator of persons and funds, tele-
phoned her and advised that there was a problem with her
bookkeeper and the funds of the patients: the bookkeeper
was Thornton.
Chisolm testified, and this is not controverted. that on or
about Februarv 2. she had occasion to examine the Medi-
Cal account in particular because it was very much out of
balance. Thornton had asked for assistance in balancing
this. Chisolm testified uncontrovertedly that she worked all
that day and evening and again the following day to find
out what the discrepancies were: there were many, and she
concluded that Thornton was wasting her own time as well
as the time of Chisolm and she then decided to terminate
her. She cited as an example that there were bills in the
records which ostensibly had been billed when actually
they had not been and were still on the desk of Thornton.
These are the Medi-Cal charges referred to above. In es-
sence, Chisolm put in approximately 32 hours to verify this.
It was at this point that she summoned Thornton to her
office, told her she was a failure as a bookkeeper. and had
to terminate her. As previously noted in the original Deci-
sion, Chisolm denied the request of Thornton to work an-
other week.
The record does indicate that Respondent. through Chi-
solm, had previously hired another bookkeeper, Nixon.
who was training in another nearby facility of Respondent's
and is the current bookkeeper at the instant facility.
Chisolm uncontrovertedly testified, and I find, that she
told Thornton at the time of her termination that she was a
competent records clerk under supervision and that if she
had constant supervision she might prove to be a competent
bookkeeper. I note at this point that although Chisolm
identified Young as complaining about the office work at
this facility, the General Counsel did not see fit to bring in
Young to testify or challenge the testimony of Chisolm as to
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what Young had claimed, although it was the call of Young
that precipitated the checking of the records by Chisolm.
There is also testimony from Chisolm, uncontroverted,
that she had contacted a named employment agency in
Santa Cruz before this time to find a replacement for
Thornton. Pursuant thereto, she interviewed at least a doz-
en applicants and ultimately employed Nixon, as stated
above, after a period of training at another facility. No one
from the agency was brought in to testify.
I find on the testimony of Chisolm, which I credit, that
Thornton was guilty of incompetence in her work and made
substantial errors therein as cited above. I therefore credit
the testimony of Chisolm, as stated, and find that Thornton
was discharged for cause: namely the reasons advanced by
Chisolm.
I accordingly reaffirm the conclusions of' law heretofore
made, as well as the Order set forth in the original Decision.
842