Seacrest Convalescent Hospital

National Labor Relations Board - Board Decisions

Jun 8, 1977

230 N.L.R.B. 23 (N.L.R.B. 1977)

SEACREST CONVALESCENT HOSPITAL
Seacrest Convalescent Hospital and Hospital and
Service Employees Union, Local 399, Service
Employees International Union, AFL-CIO. Case
31-CA-6217
June 8, 1977
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 7, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Intervenor' filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief to the Intervenor's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Seacrest Conva-
lescent Hospital, San Pedro, California, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
I Jacob & Kading was permitted to intervene at the hearing.
2 The Intervenor has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Los Angeles, California, on
November 11, 1976, and January 6, 1977. The charge was
filed June 21, 1976, by Hospital and Service Employees
Union, Local 399, Service Employees International Union,
AFL-CIO (Union). The complaint issued July 30, 1976,
and alleges violations by Seacrest Convalescent Hospital
(Respondent) of Section 8(aX5) and (1) of the National
Labor Relations Act (Act).
At the start of the hearing, Stuart M. Levine, an attorney,
moved to intervene in the name of an entity identified as
Jacob & Kading, which he represented to have purchased
the facility in question the previous day. The motion was
granted. On the second day of the hearing, Mr. Levine
stated that he was appearing for a firm known as Western
Convalescent Centers, Inc., which he said was the purchas-
er's true identity, and for an individual by the name of
Harry Planc, whom he identified as the prospective lessee
operator of the facility. No evidence was proffered in
support of Mr. Levine's representations.
The parties were given opportunity at the hearing to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Briefs were filed by the
General Counsel and Mr. Levine.
I. ISSUES
The complaint alleges that Respondent violated Section
8(aX5) and (1) of the Act by withdrawing recognition from
the Union as the representative of certain of its employees,
and by refusing to sign a bargaining agreement reached
with the Union. The answer denies any wrongdoing.
n. JURISDICTION
Respondent is a California corporation engaged at
relevant times in the operation of a nursing home in San
Pedro. Its annual gross revenues exceed $100,000, more
than $10,000 of which comes from Medi-Cal, a health
program funded jointly by the State of California and the
United States Government.
Respondent is a health care institution within the
meaning of Section 2(14) of the Act, engaged in and
affecting commerce within the meaning of Section 2(6) and
(7). In addition it satisfies the Board's discretionary
jurisdictional standard for nursing homes as enunciated in
East Oakland Community Health Alliance, Inc., 218 NLRB
1270 (1975).
[II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On January 15, 1976, the Union was certified by the
National Labor Relations Board as the bargaining repre-
sentative of Respondent's employees in this unit:
All employees employed at the facility located at 1416
West 6th Street, San Pedro, California; excluding
professional employees, office clerical employees, regis-
tered nurses, guards, and supervisors as defined in the
Act.'
Several bargaining sessions ensued between Respondent
and the Union. The chief spokesmen were John Prager, an
I It is concluded that this is an appropriate unit with Sec. 9(b) of the Act.
Certification issued in Case 3 I-RC-3329.
230 NLRB No. 9
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney, for Respondent; and Thomas Ramsay, business
representative, and James O'Dell, research associate, for
the Union. On May 14, 1976, agreement in principle was
reached on all terms of a contract, contingent upon
approval by Alice Kahan, owner of Respondent, and
ratification by the Union's membership. It also was
understood, in Prager's words, that "substantial language
drafting needed to be resolved." The agreement was to go
into effect the first pay period after ratification and have a
3-year term.
On May 16, Prager informed O'Dell that Kahan had
approved the agreement and "that what remained for us to
do was to work out the language of the proposals that
haven't had language worked out; that the Union . . .
would have to take the agreement to ratification vote ...
and that the effective date of the contract . . . could be
. . . June 1st, assuming that the contract was ratified ...
prior to that time."
On May 17, during a meeting between the two, O'Dell
agreed to Prager's suggestion that another agreement
negotiated between Prager's law firm and O'Dell serve as a
model concerning language. In the same meeting, O'Dell
said he would be away for a couple weeks, and that
Ramsay would oversee the ratification vote, which was
scheduled for May 18. Prager asked that Ramsay be
instructed to tell him when ratification had occurred, so
that Prager "could begin putting together the contract so
that all parties could execute it."
The agreement was ratified on May 18,2 and Ramsay
told Prager of this on May 27. Prager responded that he
"would begin preparation of the written agreement as soon
as possible," which he estimated would be June 1. By
Prager's admission, there were "no unresolved issues" at
this time.
On May 30 and 31, the three shifts of Respondent's
employees were summoned to meetings at Respondent's
facility. The meetings were conducted by one Elias Pelman,
who identified himself as the new administrator of the
facility. During one of the meetings, 3 Pelman said that he
understood that a bargaining agreement had been negotiat-
ed, but that he would not recognize the agreement, nor
would he deal with the Union "in any way, shape, or
form." Pelman continued that he could do better for the
employees than could the Union and asked that they give
him 3 months to do so.
On June I, after Prager had begun to reduce the
bargaining agreement to final written form, he received a
telephone call from Pelman. As a result of this call, the
contents of which are largely unrevealed on the record,
Prager stopped work on the agreement, never to resume.
Also on June 1, one of the unit employees told Ramsay of
Pelman's comments at the employee meeting described
above.
On June 2, O'Dell called Prager, asking if it were true
that the facility had been sold. Prager answered that he
"did not know what was going on," but that he had
"learned of a rumor the previous day ... to that effect."
O'Dell then asked if Prager had finished drafting the
2 Ramsay testified that ratification occurred Tuesday, May 16. Since
May 16 was a Sunday, and since the record otherwise indicates that the vote
was set for Tuesday. May 18, it is concluded that he misspoke, and meant to
say May 18.
agreement, and Prager told of the call from Pelman, saying
he had discontinued the project as a result.
On June 3, O'Dell sent this letter:
Administrator
Seacrest Convalescent Hospital
1416 West 6th Street
San Pedro, California 90732
Dear Sir:
After an election conducted by the National Labor
Relations Board, in which a majority of the employees
employed by Seacrest Convalescent Hospital voted to
have Hospital and Service Employees Union, Local 399
become their bargaining representative, the Union was
Certified by the National Labor Relations Board as the
exclusive bargaining representative for the non-profes-
sional employees employed by Seacrest Convalescent
Hospital, exclusive of the business office, clerical
employees.
The Union has been informed that you have recently
purchased Seacrest Convalescent Hospital from its
prior owner. Under Federal law, as a successor
employer, you are required to recognize the Union and
bargain with them with respect to wages, hours, and
working conditions for the employees represented by
the Union. The Union hereby demands that you
recognize it as the exclusive bargaining representative
for the employees at Seacrest Convalescent Hospital as
required by Federal law.
The Union and Seacrest Convalescent Hospital negoti-
ated a Collective Bargaining Agreement, effective June
1, 1976. The Union expects you to meet the terms of the
contractual obligations which you have inherited, as
the purchaser of Seacrest Convalescent Hospital, and
expects you to meet any additional commitments or
inducements which you may have offered that exceed
those previously negotiated.
Please contact the undersigned as soon as possible, so
that we can execute the Collective Bargaining Agree-
ment negotiated by the convalescent hospital.
Very truly yours,
And, on June 8, Ramsay sent this letter:
Mrs. Alice Kahan
338 North Mansfield Avenue
Los Angeles, California 90036
Dear Mrs. Kahan:
As you probably have heard, the new owners of the
business located in Seacrest Hospital have told their
employees they are refusing to recognize Local 399 as
3 The record contains testimony of what happened at only one of the
meetings.
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SEACREST CONVALESCENT HOSPITAL
the bargaining agent for our people working at the
hospital.
As you can well imagine, the people are both dispirited
and confused. They have fought long and hard to bring
the Union to Seacrest. Now, it appears to them they
have been deserted by you just as their efforts were
about to come to fruition.
I am writing you this letter to ask for a meeting with
you to discuss means which you may have at your
disposal to assist this Union and our members at
Seacrest in gaining recognition from the new owners. I
would be happy to call upon you at your home or any
other place you would designate.
We hope you will take advantage of this opportunity to
meet with us. I would hope to hear from you no later
than Wednesday, June 16th. I look forward to meeting
you personally as the people at Seacrest speak highly of
you and remember their days under the direction of
you and your late husband with real fondness.
Sincerely yours,
Neither letter was answered.
Sometime in June, O'Dell and Ramsay prepared a
written document embodying the agreement reached with
Prager. It was received in evidence without objection, and
there is no evidence to refute its substantive or linguistic
completeness and accuracy. It is credited as a true
embodiment of the agreement. There is no evidence,
however, that Respondent ever was asked to sign it.
Although the record alludes to a possible change in
ownership of the facility in question after the bargaining
agreement was reached, it is devoid of probative evidence
that any such change indeed took place. Findings in that
regard consequently cannot be made.
B. Discussion
That a bargaining agreement was reached between
Respondent and the Union, to become effective June 1,
1976, is uncontroverted. It is plain, moreover, that
Respondent withdrew recognition from the Union on
about June 1, an incident of which was its repudiation of
the agreement. Not only did Pelman announce to at least
some of the employees in late May that, as the new
administrator, he would not honor the agreement or deal
with the Union "in any way, shape, or form"; but
Respondent's attorney/bargaining spokesman, Prager,
abandoned his commitment to reduce the agreement to
final written form for signing after being called by Pelman
on June 1. And, after that, Respondent failed to respond to
the Union's letters about the situation.
While there is no evidence that Respondent literally
refused to sign a written agreement, as alleged, it did the
equivalent by repudiating the agreement, thereby violating
' All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by 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 by the Board and
Section 8(aX5) and (1). Respondent further violated that
section, as alleged, by evincing a withdrawal of recognition
in the manner above described.
CONCLUSIONS OF LAW
1. By ceasing to recognize the Union as the exclusive
collective-bargaining representative of its employees in the
appropriate unit on about June 1, 1976, and by concomi-
tantly repudiating the bargaining agreement it had reached
with the Union, as found herein, Respondent engaged in
unfair labor practices in violation of Section 8(aX5) and (1)
of the Act.
2. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) 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 4
The Respondent, Seacrest Convalescent Hospital, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize Hospital and Service Employ-
ees Union, Local 399, Service Employees International
Union, AFL-CIO, as the exclusive collective-bargaining
representative of its employees in the appropriate unit with
respect to their terms and conditions of employment. The
appropriate unit is:
All employees employed at Respondent's facility
located at 1416 West 6th Street, San Pedro, California;
excluding professional employees, office clerical em-
ployees, registered nurses, guards, and supervisors as
defined in the Act.
(b) Refusing to honor the collective-bargaining agree-
ment reached between it and the Union in May 1976.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their of rights under
the Act.
2. Take this affirmative action:
(a) Implement, retroactively to June 1, 1976, the
bargaining agreement reached between it and the Union in
May 1976, making whole all employees, including any who
have since left the payroll, for any wage or benefit losses
suffered by reason of its failure to give timely effect to the
agreement, with interest at 6 percent per annum.5
(b) Upon the Union's request, sign the written embodi-
ment of the above agreement, which document is referred
to in the body of this decision and is in evidence herein as
General Counsel's Exhibit 5.
(c) Preserve and, upon request, make available to the
Board or is agents, for examination and copying, all payroll
records, social security payments records, timecards,
personnel records and reports, and all other records
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
5 Nothing herein shall be construed as requiring Respondent to revert to
wage and benefit levels below those now in force. E.g., Harold W Hinson,
d/b/a Hen House Market No. 3, 175 NLRB 596 (1969).
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary for determination of the amounts owing under
the terms of this Order.
(d) Post at its place of business in San Pedro, California,
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
of Region 31, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or covered
by other material.
(e) Notify the Regional Director of Region 31, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties participated and had a
chance to give evidence, the Board has found that we had
committed certain unfair labor practices and has ordered
us to post this notice and abide by it.
The National Labor Relations Act gives all employees
the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT refuse to recognize Hospital and
Service Employees Union, Local 399, Service Employ-
ees International Union, AFL-CIO, as the exclusive
collective-bargaining representative of our employees
in the appropriate unit with respect to their terms and
conditions of employment. The appropriate unit is:
All employees employed at our facility located at
1416 West 6th Street, San Pedro, California;
excluding professional employees, office clerical
employees, registered nurses, guards, and supervi-
sors as defined in the Act.
WE WILL NOT refuse to honor the collective-bargain-
ing agreement reached between us and the Union in
May 1976.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under the Act.
WE WILL implement, retroactively to June 1, 1976,
the bargaining agreement reached between us and the
Union in May 1976, making whole all employees,
including any who have since left the payroll, for any
wage or benefit losses suffered by reason of our failure
to give timely effect to the agreement, with interest of 6
percent per annum on the wage losses.
WE WILL, upon the Union's request, sign the written
embodiment of the above agreement.
Nothing in this notice is to be construed as requiring us
to revert to wage and benefit levels below those presently in
force.
SEACREST CONVALESCENT
HOSPITAL
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