Shoreline South Intermediate Care, Inc.; Inland Pacific, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 913 (N.L.R.B. 1985)

-SHORELINE SOUTH, INC
Shoreline South Intermediate Care, Inc.; Inland Pa-
cific, Inc. and Hospital and Institutional Work-
ers Union, SEIU, Local 250 , AFL-CIO. -Case
32-CA-6921
30 September 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 17 June 1985 Administrative Law Judge Rus-
sell L. Stevens issued the attached decision. The
Charging Party filed exceptions. and a supporting
brief.
The National Labor Relations Board has delegat-
ed its - authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
= ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed. .
i The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings
We agree with the judge that the General Counsel failed to establish
that the Respondent , Shoreline South Intermediate Care, Inc, Inland Pa-
cific, Inc, unlawfully refused to bargain with the'Union In so doing, we
note the judge's conclusion, with which we agree, that the Respondent's
hiring practices with respect to the former employees of Hillhaven were
not violative of Sec 8(a)(3) of the Act Accordingly, and in view of the
judge's other findings concerning the Respondent 's employee comple-
ment, we conclude that the General Counsel has not established that the
Respondent is the successor of Hillhaven
Patricia Milowicki, Esq., of Oakland, California, for the
General Counsel. -
James T Winkler, Esq., of Long Beach, California, for
the Respondent.
Stewart Weinberg, Esq., of San Francisco, California, for
the Charging Party. -
DECISION
STATEMENT OF THE CASE
RUSSELL L.' STEVENS, Administrative Law Judge. This
case was teed in Oakland, California, on 28 March and 3
913
April 1985 1 The complaint, as amended in writing 14
March and orally at tnal,2 was issued 17 January 1985
based on an original charge filed 26 November, a first
amended charge filed .20 December, and a second
amended charge filed 14' January_ 1985 by Hospital -and
Institutional Workers Union, SEIU; Local 250, AFL-
CIO (Union). The complaint alleges that Shoreline South
Intermediate Care, Inc; Inland Pacific, Inc. (Respond-
ent) violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally,- and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT -
1. JURISDICTION
At all times material herein Shoreline South Intermedi-
ate Care, Inc., (Shoreline South or Respondent), a Cali-
fornia corporation with an office and place of business in
Alameda, California, has been engaged in business as'op-
erator of a nursing home. Based on a projection of oper-
ations since on or about 1 November 1984, at which time
it commenced operations, Shoreline South, in the course
and conduct of its business operations, annually will
derive gross revenues in excess of $100,000, and will pur-
chase and receive goods or, services -valued. it excess. of
$5000 which originate outside the State of California.
Inland Pacific, Inc., a company owned by Jack Easter-
day, provides management services for Shoreline South.
Based on admissions of Respondents, Shoreline South
and Inland Pacific are, and all times material herein have
been, affiliated businesses with common management and
supervision, reciprocal services and sales, and commonly
formulated and administered labor policies affecting em-
ployees of Shoreline South.
I find that Shoreline South and Inland Pacific are, and
at all times material herein have been,, employers en-
gaged in commerce and in a 'business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hospital and Institutional Workers Union, SEIU,
Local 250, AFL-CIO is, and at all times material herein
has been , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
i All dates hereinafter are within 1984, unless otherwise stated
'2 Gerard Markham and Rodolpho' Gangcuangco were deleted as al-
leged 8(a)(3) dischargees , and two alleged 8(a)(3) names were corrected
to read Clara (rather than Maria) Bautista and Glenn (rather than Gwen)
Webb Two persons were added to the complaint as alleged 8 (a)(3) dis-
chargees , i e, Esther Sombrani and Virgil Bowman
276 NLRB No. 95
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background3
Respondent (Shoreline South), a corporation owned
by Easterday, is an intermediate care facility4 holding a
State of California license,5 authorizing it to care for el-
derly patients who need frequent attention, but who can
care for themselves to some degree. Limited nursing-at-
tention is provided. At times relevant herein, Respondent
had approximately 160 patients and 80 employees Ap-
proximately 60 employees were in the bargaining unit.
Respondent formerly was owned by Hillhaven Corpo-
ration (Hillhaven). Hillhaven had a collective-bargaining
agreement with the Union, covering nine nursing facili-
ties . Eight of those facilities were skilled nursing estab-
lishments, and one; Shoreline South, was an intermediate
care facility. Some employee classifications named in the
contract unit did not apply to Shoreline South. Approxi-
mately 1 November, Hillhaven transferred ownership of
the facility to Hillcal Properties, a limited partnership.
Easterday personally leased the facility from Hillcal,6
and Inland Pacific, Inc. entered into an agreement with
Respondent to provide accounting and management
services for the facility. Included among the services are
payroll payments, negotiations of insurance, rates, and
some hiring of supervisors. Shoreline South, the renamed.
facility, was organized as a corporation 4 October and,
since approximately that date, Inland Pacific has man-
aged Shoreline South pursuant to an agreement.. -
Easterday has management. agreements with 16 or 18
care facilities, including the ones he owns or leases. -Cus-,
tomarily, Easterday'enters-into management agreements
with, or buys or leases facilities from, organizations in
distress, with financial, management, or licensing prob-
lems. Personnel problems are common, since approxi-
mately 60 percent of care facility expenses are consumed
by'employee payrolls. When management of facilities is
undertaken by Easterday, he often makes major changes
in personnel in order tc increase efficiency and to bring
expenses into line with figures he has established as being
proper for accounting purposes Often he transfers em-
ployees to newly organized facilities, from other facilities
he manages . Prior 'to taking over a facility, Easterday's
firm (Inland Pacific) ordinarily interviews existing em-
ployees and checks references in order to determine
those who will be retained. In some instances ' a' majority
3 This background summary is based on credited testimony, stipula-
tions of counsel , and evidence not in dispute
* In acute care facilities , patients are incontinent , and require assistance
for almost all their activities Nurses are required in order to provide
medical attention Skilled nursing facilities have patients who require less
attention than those in acute care facilities , but who must have some
medical care under direction of registered nurses (RN) Intermediate care
facilities are the,third tier down in the classification of care degree The
fourth classification includes facilities that provide board and room and
some care, in the home or in a central facility, but do not provide nursing
attention
5 Each category of care is licensed by the State in a separate manner,
with differing degree of regulation and state supervision
6 Easterday owns several care facilities, and leases several others, in-
cluding Respondent
7 Easterday credibly testified that Cederhaven and Mission facilities
are included in such instances
of existing employees are discharged, but in other in-
stances most are retained.
Easterday learned in August that the facility here in-
volved was for sale by Hillhaven. Later, on learning that
Hillcal was purchasing the facility, he arranged with
Hillcal to lease the facility. He, signed the lease on 12
September, subject to inspection of the facility and ap-
proval of various documents relating to the business. The
various conditions were met, and the lease became effec-
tive 1 November. - -
On 8 September Kenneth Thompson,-vice president of
Inland Pacific,8 went to the facility to meet some of its
representatives and to make an inspection of it. Most of
his conversation on that visit was with Gayle Artimisi
(then administrator of the facility). They talked at length
about the facility, its patients, and its personnel Thomp-
son also talked with Aurora Garcia, a dietary. supervisor
who' then was in charge of the kitchen and its 15 em-
ployees.
On 15 September Thompson. again visited the facility,
after he had reported to Easterday concerning his first
visit He again talked at length with Artimisi, and they
discussed many things relating to management of the
premises.
Easterday's first visit to the facility was on 20 Septem-
ber. During that visit he met with Douglas Troyer, a re-
gional manager of Hillhaven, other officials of Hillhaven,
and Artimisi. At Easterday's request, Artimisi drove him
around the community surrounding the facility, and the
two of them briefly discussed the care facility -
On,23 September Thompson went.to the facility with
Steve Swangler, an employee of Inland Pacific. Thomp-
son talked with _Artimisi, and met and talked again with
Garcia. Swangler spent most of his time reviewing em-
ployees' files in Artimisi's office.
On 29 September Thompson and Swangler went to
the facility and talked with Artimisi and Jan Barnett,
who at that time was director of nursing services.9 Some
of Thompson's' conversation was with Artimisi and Bar-
nett together, and some was carried. out separately and
individually. '
Thompson and Swangler came to the facility again on
6 October, and Thompson again talked with Artimisi and
Barnett . Swangler continued his review of employee
files. Thompson stated, among other things, that some
RNs were going to be terminated because there were
more of them on the staff than state regulations required,
and more than were needed for the number of patients in
the facility. •
On 10 October Jan Harrington, Hillhaven's staff RN
consultant, called Artimisi on the telephone, told her she
had learned about RN reductions, and told her to call
back.to work all RNs who had been ,terminated. Later
that day, Troyer called Artimisi on the telephone and
told her that.Thompson was not allowed in the facility
.unless he was accompanied by Troyer or some other
8 Kenneth Thompson is referred to as Thompson Lurline Thompson,
identified later, is referred to by her full name
9 Barnett 's supervisory status is not in dispute She supervised all RNs
at the facility, and all LVNs (licensed vocational nurses ), totaling ap-
proximately 40 employees '
SHORELINE SOUTH, INC.
Hillhaven corporate officer. Still later that day, Artimisi
advised Thompson by telephone that Hillhaven wanted
all the RNs called back to work, and Thompson replied
that he would bring in his own people from Southern
California.
On 19 October Charles Ridgell and Sue Patterson,
who were union representatives, came to Artimisi's
office with Lurline Thompson, an employee who was
the shop steward at the facility. They handed to Artimisi
an intent to strike the facility on 1 November'at 12:01
a.m. They asked Artimisi to date, stamp, and sign the
notice, which she did. They also asked her to see that
the new owners received- the notice. Artimisi called
Troyer on the telephone, and read the notice to him. He
told her not to worry, since by the time of the strike Re-
spondent, and not Hillhaven, would own the facility.10
Later in the day on 19 October, Easterday, Thompson,
Troyer, and a Hillhaven maintenance man made a final
walkthrough inspection of the facility and evaluation of
equipment and inventory. While they were there, Arti-
misi handed to Thompson an envelope containing the
strike notice.
On 29 October Thompson came to the facility to post
a notice to employees, stating that they should fill out
job applications for positions that were available. An
interview list also was posted, to be signed by those who
.sought jobs.
Ocie Davis was hired in October as corporate director
of nurses at Fresno, California's New Heart Convales-
cent, a facility managed by Easterday. Approximately 25
October, Thompson told her she would be going to Oak-
land to interview applicants for jobs at Shoreline South.
She went to Oakland on 28 October, - and conducted
interviews on 2 days, 29 and 30 October, at the Trave-
lodge Motel, and part of October 30 at Shoreline South.
She interviewed approximately 50 applicants for nursing
positions, both licensed and unlicensed. Rosemarie Zagar
sat with her during the interviews. Of those who were
interviewed, Davis hired a total of approximately 20, on
30 and 31 October. Included were four or five LVNs,
three RNs, and three or four nurse assistants, all of
whom then worked at the facility. After the hires were
determined, on 30 and 31 October, Davis prepared for
posting a worktime schedule for all nurse personnel, li-
censed and unlicensed.
Greg Mattern began work training at New Heart Con-
valescent 12 October, after being hired by Thompson, as
a maintenance supervisor scheduled for employment at
Shoreline South. He conducted interviews at Shoreline
South, and was employed there during the month of No-
vember, after which he returned to New Heart Conva-
lescent. He went to Oakland, California, on 28 October
10 There was much testimony concerning whether the notice given to
Respondent was addressed to Respondent or to Hillhaven , but that
matter is irrelevant to any issue . It is clear that Respondent knew the
stnke was to be against it, and not Hillhaven There also was much testi-
mony concerning the notice to employees and its preparation It is found
that the notice was based on earlier forms used by Respondent at_ other
facilities , as credibly testified by Easterday , and that posting of the notice
was delayed until 29 October at the insistence of Pierce (who did not tes-
tify), also as credibly explained by Easterday No inference or conclusion
)f improper tntenl or action on the part of Respondent is made with re-
pect to the notice to employees , G.C Exh 8, quoted infra
915
at Thompson's instructions, to conduct interviews. He
held interviews on 29. and 30 October, at the Travelodge
Motel and at the facility. A Mr. Foster was with him
during some of the interviews, and Zagar assisted him in
checking references. He interviewed a total of approxi-
mately 30 applicants. Under Hillhaven, the maintenance
crew totaled 10 or 11, and Mattern hired 3 of those em-
ployees,, l of whom (Landis) did not come to work for
Respondent. After the interviews, Mattern toured the fa-
cility for approximately 45 minutes, after which he made
the hires and prepared a work schedule.
Lydia Eppie, a food supervisor at Northgate Center in
Pomona, t t conducted interviews for Shoreline South at
the Travelodge on 29 and 30 October, for positions in
the dietary department. After the interviews, on 31 Octo-
ber, she prepared a list of the applicants whom she hired.
On 31 October Thompson posted a notice in the em-
ployee lounge, listing the 'names of employees who had
been hired.' He also posted work schedules. A sizeable
group of employees gathered, and much excitement and
confusion was generated. because many employees of the
Hillhaven facility had not been hired by Respondent.
Ridgell talked with the employees, and asked them to
meet with him in the parking lot. When they met, Rid-
gell told them the Union would be filing an unfair labor
practice charge against' Respondent, and said picketing
would commence as soon as possible. Ridgell then pre-
pared. and delivered to Respondent a letter to Easterday
informing him that the strike deadline of 1 November,
previously delivered to Respondent on 19 October, had
been extended to 2 November at 12:01 a.m.12
The Union has represented Respondent's unit employ-
ees13 for approximately 20 years. The most recent col-
lective-bargaining agreement between Hillhaven and the
Union was effective 1 September 1983 through 31
August 1985. -
Based on their close affiliation, and control and man-
agement of Shoreline South by Inland Pacific, it is clear,
and found, that Shoreline South and Inland Pacific are
joint employers of employees involved herein. Respond-
ent admits that Inland Pacific is its agent.
Issues -
The principal issues are whether or not Respondent
failed or refused to hire employees previously working at
the facility managed by Hillhaven, because they were
union members or supporters, in order to avoid entering
into a collective-bargaining agreement with the Union in
violation of Section 8(a)(1) and (3) of the Act, and
whether or not Respondent is a successor of Hillhaven,
with which Respondent refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
i 1 The supervisory status of Davis, Mattern, and Eppie is not in dis-
pute
12 Ridgell explained at trial that the notice of 19 October had been de-
livered in anticipation of Respondent's expected , refusal to hire union
members as of 1 November. He said he "expected the worst," i e, refusal
to hire union members in violation of the Act -
19 RNs are not in the unit , but LVNs and nursing assistants are.
916 DECISIONS OF -NATIONAL' LABOR RELATIONS BOARD
A subsidiary issue is whether' or not Respondent vio-
lated Section 8(a)(1) of the Act by making certain state-
ments to employees.
A. Respondent's Animus
The General Counsel relies to a large extent on state-
ments allegedly made by Thompson during his conversa-
tions with Artimisi and Barnett. The substance of the tes-
timony relative to those 'conversations, and related con-
versations, follows.
1. 8 September
Artimisi testified she and Thompson discussed several
things about the facility, including personnel, and rela-
tive to the Union. She testified that she told him she had
promoted employee Johnny Mills from nursing assistant
to medical records. Thompson became very angry and
said that was a very stupid move; that I should never
promote someone-a union member into a management
position. Later, Thompson "stated that he wanted me to
cause as much confusion and ill will with the Union as
possible:" He said, "Start writing people up." She replied
that she would if they deserved it. 14
Thompson testified he went to Artimisi's office with
permission of Hillhaven officials, and told her of the pos-
sible sale of the facility. They engaged in small talk, and
then discussed the facility and its personnel. Artimisi was
critical of Hillhaven management, and said she did not
have a key to obtain records he asked for, since she was
involuntarily given a month's vacation, by Troyer and
another member of management, and no longer had a
key. She obtained a key from another employee, after
which the two- of them toured the facility. Garcia came
in, and he discussed the kitchen and food costs with her.
Garcia seemed to know very little about administration
of the facility, and he told her the food costs were exces-
sive. He told • Artimisi that he wanted to establish a 4-2
schedule,15 and she said he could not do that because of
Mills, who threatened to kill the administrator with a
gun, and another employee who had a son that "will
take care of you." Artimisi stated, impliedly, that she had
promoted Mills because she was afraid of her and her
gun. He wrote in his notes 16 a reminder to terminate
.Mills. He wrote "union" and "non-union" in his notes
without further explanation , and he does not remember
why he wrote those words, although he did say "non-
union" "referred to salaried employees. One of the notes
states , "Took all good non-union." The meeting lasted
approximately 6-1/2 hours, and the conversation about
the Union lasted possibly 10 minutes.
14 Artimisi later testified that she issued approximately eight warnings,
pursuant to Thompson's instructions She also testified that all eight
warnings were justified, at least so far as counseling was concerned She
said she has issued written warnings in the past , but not so many in such
a short period of time
15 A 4-2 schedule describes the manner of scheduling employees for
work. Thompson testified that such'a schedule, which takes days off and
days on work into account, has been found by Respondent to be the most
efficient for care homes The facility under Hillhaven did not consistently
follow a 4-2, or any other fixed schedule
16 The notes are in evidence as R. Exhs. -12 and 13 -
2. 15 September
Artimisi testified: "Mr. Thompson wanted warning no-
tices written. He wanted originals in the employee files,
signed originals and he wanted copies to him." They
then reviewed the staff, and Thompson asked if she had
fired Mills yet. She replied no, she had no grounds to
fire Mills, and she would assume responsibility for Mills.
Thompson became angry and loud after learning "that
Ms. Mills was still in the Union." He said, "You don't
even know who is in the Union and who isn't.'-' Artimisi
said she had made an error, since "never before had I
.worked in a facility where a medical records clerk had
been a member of the Union." An employee (Josephine
Rucker) briefly came to the office, and Artimisi ex-
plained to Thompson that "Josephine was a good
worker, that she was in the Union, that she was my
friend." Thompson started screaming again and said,
"You are always taking the Union's side, get it through
your thick head there is no union and there won't be a
union in this facility." They talked some about Inland
Pacific, and the meeting ended.
Thompson testified he went to Artimisi's office primar-
ily to learn if she had followed through on some items
he previously talked with her about. He talked with her
about administrative matters, concerning which she did
not seem competent. She said Troyer, Pierce, and Eimers
(officials of Hillhaven) hated her, and that-was why they
did not support her as an administrator. She. said the
reason for the hate was the fact that she was a woman,
and she implied that some of the officials were homosex-
uals. They talked about the facility and its equipment,
and other administrative matters, and they visited all the
rooms. Thompson acknowledged yelling at Artimisi. The
reason, he said, was his anger because Artimisi apparent-
ly did not understand about Mills, who was a union
member in a nonunion position (medical records
clerk),17 and Mills still was working, even though she
had threatened Artimisi. He explained to Artimisi that
the employees' schedules of work were mixed up and im-
proper, and that they were greatly overstaffed with RNs,
when the law required only one. She said the employees
set their schedules as they wanted to, and he replied,
"There you go taking the Union' s side ." They talked fur-
ther about management not supporting her.
3. 20 September
Artimisi testified as she was'driving Easterday through
the community where the facility is located, he asked her
if Thompson had spoken to her regarding the Union. She
replied yes, and said she would expect trouble, based on
her knowledge of the Union gained as a former member
of Local 256. Easterday said he would take care of that.
Easterday testified among other papers Artimisi had
given him relative to the facility was the Union's con-
tract, and he read it while they were driving through the
community. He remarked to her that it looked like a le-
nient contract for the Union, and she said it was. She
said Hillhaven "pretty. much gave whatever was asked
14 Respondent's counsel notes in his brief that Thompson was in error,
since the medical records clerk is included within the bargaining unit
SHORELINE SOUTH, INC.
for." She said Hillhaven did not strictly enforce the con-
tract, and other facilities had better contracts. He asked
her if the Union was very active in the facility, and she
replied yes. She complained about lack of management
support of her, and he assured her that Respondent
strongly backed its management personnel. His visit
lasted an hour and a half or an hour and 45 minutes, of
which 3 to 5 minutes were spent talking about the
Union.
4. 23 September
Artimisi testified she and Thompson discussed staffing
patterns and when each employee' s name was mentioned,
he asked if the employee's position was union or non-
union. He asked if LVNs-were union or nonunion, and
she replied some were, but some new employees were on
probation and were not union members. They then dis-
cussed several administrative matters. She asked how
much Respondent was going to pay the employees, and
he asked her what the union contract provided. She re-
plied that certified nursing assistants were paid $3.97,
with a 20-cent differential. He became very angry and
said , "There you go again , defending the union contract.
What are you doing, taking a kick-back from the
Union?" Thompson again instructed her "to write people
up." Thompson talked with Garcia about food proper-
ties , and about Garcia's philosophy in hiring employees.
He asked if Garcia would hire employees of her own
ethnic background, and if she would -hire 'a union em-
ployee. Artimisi did not relate Garcia's replies to those
questions.
Thompson testified he talked at length with Barnett,
and asked how she got so many RNs. Barnett said they
were good, and she had control of them that she could
not exercise with LVNs, since RNs were not union
members and LNVs were in the unit . Barnett talked
critically about Artimisi, and. said "She's a flake." He
told Barnett she had more than double the staffing hours
in nursing required by law, and that the situation would
change if Respondent took over the facility He asked
Barnett why she did not have control of the LVNs, and
she replied that management would not support her. He
said she should give- warning notices to all employees
who were not performing satisfactorily, and she replied
that "the aides" would just laugh at that. Knowing that
Barnett and Artimisi were critical of each other, he sent
them outside to talk over their problems. They returned
and said they could work together. He told Barnett and
Artimisi that he employed the administrator and director
of nurses, and he would not employ those persons unless
they agreed to abide by Respondent's regulations. They
said they would comply, and he told them he would
send them a written "understanding of employment,"
which he later sent . Thompson testified:
I made the statement , 25 warning notices. I go-
you have to give-if those people are a threat,
they're laughing at you, if they're ignoring you, you
give warning notices. When- I come back here I
want 25 warning notices. I go, 25 Hell, I want 50, a
thousand. Whatever it takes to get people in line,
917
document it. I don't care about warning notices,
other than documentation.
Barnett testified that she met with Thompson "the last
of September." Artimisi testified to separate meetings, on
23 and 29 September. Thompson testified relative to a
single' meeting, either on 23 or 29 September, saying his
memory was not clear on the date. However, it s clear
that all three witnesses testified relative to the same
events. Whether or not those events occurred on one or
two dates is immaterial . Barnett testified: Thompson told
her the nursing costs were excessive, and she would
have to reduce her staff in order to lower costs.. He told-
her she was to prepare 25 warnings on union eployees,
and evaluations of Lurline Thompson, Wanda Broussard,
and Vivian Daniels, who were shop stewards; all three
of them were in the nursing department. She was told to
have her staff developer prepare the evaluations and
warnings. He asked if any nurses would work as non-
union employees, and she replied yes, there were three
of them, in addition to two recently hired CNAs. Arti-
misi was asked how many nonunion employees she could
get, and she replied four. Thompson said he could get 10
CNAs from the. outside. He told Artimisi to give Mills
written warnings and to fire her. Thompson said the
written warnings to be-given to employees were to be
for insubordination, violation of house policies and pro-
cedures, and poor nursing performance.
5. 29 September
Artimisi gave this date as the one on which the inci-
dent occurred that was described by Thompson, wherein
Barnett and Artimisi were told to step outside the office
and determine whether or not they could work together.
The substance of the versions of Thompson, Barnett, and
Artimisi are not greatly different.
6: 6 October
Artimisi testified she, Barnett, and Thompson met and
discussed the nursing staff..Thompson said he wanted all
on-call union employees off the payroll before the next
pay period, he wanted to eliminate all RNs from the staff
within the week, and he wanted to staff the facility with
LVNs. Thompson again objected to Mills still being on
the payroll, saying she was -a "leak" and telling all the
employees that the facility was going to be nonunion.
They talked about Ali Yee , Barnett 's staff developer, and
Thompson said he would have to prove-his loyalty to
Barnett and Respondent, if he was to be retained as Bar-
nett Wanted. Thompson instructed Barnett to have Ali
Yee write detailed evaluations and warning notices on
Lurline Thompson, Vivian Daniels, Wanda Broussard,
and Johnny Mills the first three because they were shop
stewards. Also, he instructed that Ali Yee was to help
Artimisi evaluate Garcia's in-service and education pro-
gram. Thompson said RNs were going to be eliminated
from the staff. -
Barnett testified she met with Artimisi and Thompson
the following week, after their meeting the "last of Sep-
tember," discussed above. She presented a staffing sched-
ule, and the three evaluations and written warnings pre-
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pared for the three shop stewards She gave Thompson
the names of the five employees she believed would
work nonunion, and he said the facility would be non-
union ., She was told by Thompson to reduce her staff
prior to the takeover by Respondent. She did not reduce
the staff prior to Respondent's takeover, however, on the
instruction of Jan Harrington, Hillhaven's professional
services ,consultant.
Thompson testified Artimisi and Barnett signed the un-
derstandings of employment he had prepared, and they
discussed some repairs that were required. He again
talked with Barnett about staffing of nurses; and he
agreed-to let her' retain one RN for each shift,-with one
LVN for each shift. They discussed the beds in the facil-
ity, and -went through the rooms. He stated to Artimisi,
"`I said , 25 warning notices, I don't see any and this is
over a week ago and look at the facts. Where are they?"
He acknowledged saying he wanted on-call employees
off the payroll, because with proper scheduling they
were not needed.
7: 19 October
Easterday testified after the walkthrough of the facility
mentioned above, he and Thompson were alone and Rid-
gell came in and introduced himself. They talked amica-
bly about the interviews, and he told Ridgell that, since
Pierce (Hillhaven) was concerned about the effect inter-
views could have on employees, he should talk with
Pierce about the procedure to be followed. The walk-
through and his discussions with Pierce, Troyer, and Ar-
timisi took approximately- 3 or 4 hours, of which approxi-
mately 3 or 4 minutes involved the Union, when Artimisi
handed the strike notice to Thompson. No other mention
was made of the Union.
Discussion
Other than personnel matters, discussed herein, the
takeover of the facility by Respondent from Hillhaven
followed a familiar course. The facility was in distress,
was in financial difficulty, and was for sale. Respondent
went into the facility as it had at many other care homes
in the past-with aggressive, profit-oriented management
goals. Easterday and Thompson are credited in their tes-
timony that they found many possible areas of cost im-
provement, particularly those involving nursing care and
food costs. In addition, Thompson credibly testified that
Respondent used an excessive number of on-call employ-
ees, and operated with inefficient schedules. Much testi-
mony was'devoted.to the question of whether or not the
facility was in disrepair, and whether or not it was
having unnecessary licensing trouble with the State, but
,that testimony mostly is irrelevant to the issues: The
clear, indication is that the facility was in,the red because
it was not doing-well, not because Hillhaven wanted to
sell it for any other reason. Easterday credibly testified
that he bought or agreed to manage only losers-not
winners, and that such was the case with -Shoreline
South.
Artimisi and Barnett, attempted to convey the impres-
sion that-one of Respondent's.principal goals was to oust
union employees, and make the :facility a nonunion one.
Thompson tried to show that the union question. was of
minor import,- and that any reference to unions in his
conversations related directly, and only, -to management
problems.
None of these three witnesses is credited entirely.
None of the three appeared impressive or particularly re-
liable. Clearly, Artimisi was in trouble with Hillhaven.
She was a short-time employee (approximately 10-1/2
months) who already had been given a 1-month involun-
tary "vacation."18 Equally clearly, Artimisi was in trou-
ble with Thompson, who said he felt she was an inept
administrator. 19 Barnett had worked at the facility sever-
al years, but Thompson did not admire her administra-
tive ability, either. In any event, although Artimisi and
Barnett crossed swords with Thompson on several occa-
sions, sometimes bitterly, Thompson testified that he of-
fered continued employment to both of them, provided
they agree to follow Respondent's management rules.
The circumstances of their departure are not clear, but it
is clear that both of them disliked Thompson. On the
other hand, Thompson made no attempt to hide his
scorn of the value of Artimisi- and Barnett as administra-
tors, either during his conversation with them or on the
witness stand. All these factors have been taken into con-
sideration in assessing the conversations among Artimisi,
Barnett, and Thompson.
1. 8 September. Whatever else may be said of this con-
versation, it is clear from the testimony of both Artimisi
and Thompson that any talk about union matters con-
sumed very little of their time. Artimisi said they talked
about Inland Pacific, other facilities, profit-and-loss state-
ments, patients, department heads, name of the facility,
and other matters. She was specific in her testimony only
about Mills, and the warning notices.20 Thompson added
many other things they talked about. Based on the testi-
mony of-both, Thompson's estimate of times being de-
voted to talk about the Union,. and about other matters,
is credited.
Thompson was not asked about Artimisi's testimony
concerning warning notices, but he testified generally
that his comments about the Union involved references
to salaried versus hourly employees.' The' question' of
warning notices came up later, as discussed infra, but Ar-
timisi's testimony that it' came up at this meeting 'ap-
peared strained, illogical, and unlikely, and is not cred-
ited. '
It is found that this meeting did not disclose any
planned attempt by Respondent to rid itself of the Union,
or 'of union employees.
19 Animist did not deny Thompson 's testimony relative to this matter
19 Artimisi testified that Thompson was a more strict administrator
than she '
20 On cross-examination, Artimisi testified that Thompson only asked
that she write warning notices to employees when there was an incident
that indicated discipline requirement . She said he did not ask her to man-
ufacture reasons for discipline . As earlier noted, Artimisi believed disci-
pline of some kind was warranted on the eight occasions when she issued
warning notices
Easterday credibly testified that his policy, and that of all his compa-
nies, is to issue written warnings when they are justified , as a construc-
tive management tool.
SHORELINE SOUTH, INC - 919
2. 15 September. Artimisi implied that Mills and union
matters constituted the bulk of this conversation. Thomp-
son indicated that Mills and union` matters were men-
tioned but briefly in the records inspection, walkthrough,
and discussion' that lasted several hours. Thompson did
not specifically deny Artimisi's testimony about warning
notices or the facility no longer being a union one,' but
his testimony concerning Mills, and his elucidation of
their conversation about the Union, is credited.
It is' found that this meeting did not disclose any
planned attempt by Respondent to 'rid itself of the Union,
or of union employees. The matter-of warning notices is
discussed in more detail infra.
3. 20 September. Easterday -was a•credible witness, and
his version of this meeting is accepted as"accurate.
It is found - that this meeting did not' disclose any
planned attempt by Respondent to rid itself of the Union,
or of union employees. _
4. 23 September. So far as Artimisi's testimony is con-
cerned, 21 taken in a' light most favorable to the General
-Counsel, there is no support for a contention -that Re-
spondent indicated an intent , or desire, to rid itself- of
union members or the Union. Artimisi testified that
Thompson asked her if each position, including LVNs,
was union or nonunion-he did not ask about employees
occupying those positions. Nor did his other remarks
necessarily disclose such an-intent or desire. As earlier
noted, it was clear from their first meeting that Thomp-
son held Artimisi's administrative ability in -very low
esteem. -
Barnett's testimony corroborated Artimisi's repeated
testimony concerning Mills. However, as 'earlier noted,
the matter of Mills cannot be the basis fora conclusion
of antiunion animus , because all the testimony clearly in-
dicates 'that Thompson was concerned about three
things-Mills' alleged gun threat, Artimisi's statements
concerning Mills, and Artimisi's promotion of Mills into
a,clerical position' following threats:22 Relative to Bar-
nett's testimony concerning warnings, Thompson's expla-
nation of his statements on this subject was credited
above. He said he was not pleased with much of what he
saw at the facility, including- many examples of poor ad-
ministration, and- that he wanted employees' shortcom-
ings documented. However, Barnett's' testimony is more
specific than any earlier testimony, in that she said
Thomson wanted warning slips on union employees, in-
cluding the three named shop stewards. That testimony
by Barnett was not denied by Thompson, and it is cred-
ited. Based on that ' testimony, it is found that Respondent
indicated its desire to put pressure on union employees
solely because of their status as union members, and to
get as many nonunion employees into the facility as pos-
sible. That conclusion is strengthened by Barnett's cred-
ited testimony,- not denied by Thompson, concerning the
latter's questioning of Barnett and Artimisi as to how
many nonunion employees they. had, or could get. It is
'further strengthened by Thompson's statement that he
could bring in 10 CNAs from the outside -it is apparent
21 Garcia did not testify -- - -
22 Artimisi testified that she insisted to Thompson that Mills was a
good employee and was promoted on that bans
that he was referring to nonunion CNAs. Barnett denied
Thompson's testimony that she said the nurses' aides
would laugh at her if she issued warnings, and that she
told him the aides ignored her instructions. However, as
discussed infra, Thompson's antiunion animus does, .not,
in and of itself, settle the controversy.
5. 29,September. This meeting produced nothing new,
so far as the issues are concerned.
6. 6 October. Artimisi's testimony, that Thompson in-
structed -Barnett to have her staff developer (Ali Yee)
write up detailed evaluations and warning notices on-the
three union stewards and Mills generally corroborated
Barnett's testimony discussed above, -was not denied by
.Thompson, and is credited. The effect on the issues is
discussed later.
Barnett credibly testified that she gave Thompson the
I
written evaluations -and warning notices prepared for the
three shop stewards. • She testified that 'she - would not
have issued the warnings unless Thompson had instruct-
ed her to:- Barnett also credibily testified that she gave
Thompson the names of employees she believed would
work nonunion. -
7. Ridgell credibly testified, without challenge or con-
tradiction,. that -he' gave Artimisi the strike. notice on 19
October and returned later the same day to talk with Re-
spondent's representatives. He met with someone he did
not identify at trial, and they agreed that they both
wanted the transition "to go smoothly." Ridgell asked
for any documents relating to unit employees, and was
informed, he would receive something in the mail.. He
later received from Respondent's* attorney a letter, en-
closing a copy of a letter to Hillhaven which referred to
the following notice, also enclosed with the letter:
NOTICE TO EMPLOYEES: OF HILLHAVEN
INC. .
'As you are' all by now aware, SHORELINE
SOUTH INTERMEDIATE CARE, INC.• 'will
commence operations at these premises beginning
November 1, 1984.
SHORELINE SOUTH INTERMEDIATE
CARE, INC. establishes its own terms and condi-
tions of employment and hires in accordance... with
its own, standards, designed to' assure excellence in
patient care.
SHORELINE SOUTH . INTERMEDIATE
CARE anticipates it may have some openings for
positions at these premises. We welcome you to
apply for any openings that we may have available.
Such. openings are, of course, upon -SHORELINE
SOUTH INTERMEDIATE CARE'S terms and
conditions and according to its hiring standards.
,If you are interested in applying for employment
with SHORELINE SOUTH INTERMEDIATE
CARE, please complete an application and sign up
for an interview . Applications and an interview
sign-up sheet are now available at the business
office . Interviews will be conducted at the business
office Tuesday , October • 30, at the hours specified
on the sign-up sheet. -
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On one occasion Ridgell went to the facility to regis-
ter grievances about written warnings given to three em-
ployees by Artimisi . After some argument, Artimisi
agreed to ' reduce the warnings to written counselings.
One other warning was not protested , since it was justi-
fied.
Easterday 's testimony relative to his visit to the facility
on 19 October , discussed above, is credited.23
8. Easterday testified that Respondent placed a classi-
fied advertisement in the Oakland Tribune the last week
of October for employees to work at 'Shoreline South.
The advertisement - appeared prior to interviews with
Shoreline employees . He did not confer with the Union
about interviews to be arranged pursuant to the adver-
tisement . The advertisement read as follows: -
NURSING HOME-Alameda area. Intermediate
care facility. New health care management concept.
Positions opened in all departments.
NURSING SERVICES-CNA'S, LVN'S, RN'S.
All shifts.
ENVIRONMENTAL SERVICES-Housekeep-
ers, Janitors, Laundry Aides.
DIETARY SERVICES-Cooks and Dietary
Aides. Excellent salaries and benefits. Become part
of a dedicated health facility team.
Call 828-8464. EOE
9. Paragraph 7(a) of the complaint alleges that on or
about 28 October Garcia told employees that , if they
signed up for the Union , they would not be retained by
Respondent. _
Helen Sanders , employed at the facility as a cook from
19 ' February 1967 until 31 October 1984 , testified that
Garcia asked her in October if she liked the Union, and
she replied yes. She further testified that on 28 October
Garcia told her and other employees in the kitchen, "If
anybody signs for the Union, they wouldn 't have, a job.
The ones that didn 't sign would have a job ." Sanders
said Garcia then asked her if she would work for $3.50,
and she , replied , "No way."
Respondent did not take over the facility until 1 No-
vember. Garcia was a supervisor within the meaning of
the Act, both prior to and after 1 November . She was
not an employee of Respondent prior to 1 November.
However, the General Counsel argues that she was Re-
spondent 's agent prior to 1 November.
There was some testimony concerning Garcia and her
work, but for the most part , Thompson was critical of
her. Garcia did not interview applicants for Respondent,
and Eppie credibly testified that she interviewed Garcia
on- 30 October 'for 'employment and later hired her.
Eppie testified that Garcia recommended some employ-
ees for retention, but some of those employees were
hired and some were not. It is apparent that Garcia did
not make recommendations as a supervisor, because she
" Easterday credibly testified that he talked with Ridgell on the tele-
phone 25 October,. and Ridgell said he still had not seen Respondent's
notice to employees . Easterday again expressed Pierce 's concern about
posting a notice , and suggested that Ridgell get in touch with his attor-
ney.
was not one of Respondent 's supervisors when the rec-
ommendations were made . The ,General Counsel argues
that it is "logical ' to conclude" that "Thompson let
Garcia in on'his future plans for the facility " and "enlist-
ed her aid in soliciting employees to work for- the new
employer on a nonunion basis ." Such a conclusion could
be based solely upon impermissible speculation. Respond-
ent denied that Garcia was its agent prior to 1 Novem-
ber, and Garcia was not called as a witness ..There is no
evidence or testimony even touching on any manage-
ment instructions given to, or conversations held with,
Garcia concerning this allegation . The words attributed
to Garcia could as well have been expressions of her
own thoughts , as the intent of Respondent.
This allegation of the complaint is not supported by
the record.
10. Artimisi testified that, when the strike notice was
given to Thompson 19.October , "He very quietly read
the letter . He screamed , 'I don't believe in unions . This is
garbage .' And threw the' notice at me." Patterson, Rid-
gell, Lurline Thompson, and Kenneth Thompson-all
were present when the notice was handed to Ken
Thompson . However , none of those four witnesses was
asked about, or testified concerning , this alleged incident.
Because of Artimisi's questionable testimony , her testi-
mony relative to this matter is not credited.
1. The General Counsel questioned Easterday about
his dealings with unions at other facilities , and implied
that Respondent generally opposed unionization of its
employees . That questioning is not helpful in resolving
any issue in this case, since : (a) Other facilities are not
involved in this case. (b) The questioning was not com-
plete, and the subject was discussed but cursorily .- (c) In
any event, union animus alone , without more being
shown , is not a violation of the Act. -'
• It. is noted that most of the, facilities taken over by
Easterday were not organized when he bought , leased,
or first managed them . One facility was organized, , but
did not have a contract with the union . One facility had
a contract with a union ..In one other , there had been a
union election prior to Easterday 's takeover , but that fact
was not told to Easterday . NLRB later held that Easter-
day did not have a duty to bargain with the union. Cer-
tainly there is no record of any campaign by Easterday
to stamp out unions, either at Shoreline South, or at any
other facility.. -
B. Respondent 's Staffing Schedule
Easterday credibly explained in detail a 4-2 schedule
(referring to businesses that operate 7 days, 24 hours) as
opposed to a 5-2 schedule (Monday through Friday,
using extras as needed ). He said he uses - a 4-2 schedule in
all his facilities, which must be operated around the
clock . He credibly explained Respondent's Exhibit 10 as
a schedule he prepared in advance of the takeover, and
anticipated that he would be filling only 58 jobs. All
those - jobs are listed by category on the schedule. He
said he knew in advance that he would not need to fill
the 80 jobs Hillhaven had for the facility , since 80 em-
ployees were not required by law or by the needs of the
facility . He said the number of'employees is determined
SHORELINE SOUTH, INC. 921
by the number of patients. Easterday said 58 jobs for the
-facilities' 'approximately 160 patients met state require-
ments . Easterday, credibly testified that, prior to the take-
over, he did not know whether most of his employees
would be former employees or new ones.
C. The Interviews
Easterday did not interview any employees, and there
is no evidence or testimony indicating or showing that
,he discussed with any , of the interviewers, or with
'Thompson, the subject of interviews or hiring.
Thompson credibly testified' that he 'did not interview'
any applicant, and that testimony was not contradict-
ed.24 He informed Garcia that Eppie would be inter-
viewing her, and he did interview applicants for the posi-
tions of administrator and director of nurses. However,
all three of those positions were supervisory. There is no
-testimony or evidence' showing that Thompson instruct-
ed any interviewer, or talked with them, relative to who
should or should not be hired, or relative to the Union.
It is possible, of course, that he did issue' instructions or
guidelines concerning those matters, but that subject was
`noi explored during trial, and any finding on the matter
would have to be based solely upon speculation, which is
not possible. So far as the record shows,. Thompson was
not present during, nor did he participate in, any inter-
'•views; 'although it appears -he--was in the vicinity when
,'some interviews were being conducted at the facility. It
does not appear that he was even in the vicinity during
interviews conducted at the Travelodge. All interviews
were conducted at the same,times. ..
The interviews were conducted by Davis, Mattern,
and Eppie, as noted•above.25 Zagar was present to assist
' interviewers,, and she 'did some limited interviewing.,
Davis credibly testified: When she interviewed appli-
cants, she read ,the applications, checked the.references,
and checked past employers. She made notations on the
applications, and asked some applicants questions con-
cerning basic nursing skills. In addition, some questions
were written. She was alone during the interviews, but
-Zagar briefly was in and out of the room on some occa-
sions.- She also does interviewing at the Fresno facility
where she works; and at other facilities: Thompson
never said anything to her about the Union, nor did he
tell her not to hire union members. The first she knew of
the facility being unionized was 30 October, when she
saw a document, which she did not read, on the adminis-
trator's desk. The document had on it the name of, the
,Local.
Mattern testified: During the ,first part of the inter-
. .views Foster sat next to him but he was alone much of
the time, and he did all the. interviewing. After each
+, 24 One of the General Counsel's rebuttal .witnesses , a Miss Duncan, did
not appear at the time called for testimony , and the General Counsel
made an offer of proof that, if called , "Miss Duncan would be able to
testify that indeed Mr. Thompson' did sit in on the interview when she
was interviewed by 0. C' Davis, he was in the room and that he asked
her pointedly would she come to work, would she cross the picket line if
she was scheduled to work, and she said that she would cross the picket
line and she was retained " -
views, but that she was not This mattei was not pursued at trial
25 Barnett testified that Thompson wanted her to be a part of the inter-
interview, he went to his room and , checked the refer-
ence's given on the application. Zagar assisted him in
checking references. No one told him not to hire current
employees,, and no one told him not to hire union em-
ployees: Each interview lasted approximately 10 minutes.
,Eppie testified: She was alone during all her inter-
views. She interviewed' Garcia, among others. No one
ever told her not to hire union members, nor did anyone
ever tell her not to hire current employees. Further, she
never discussed_ applicants with Davis or Mattern. As
earlier noted, she discussed some' applicants with Garcia,
who had, recommended them .2 6'
Discussion
Davis, Eppie, and -Mattern were credible witnesses,
and their- testimony is accepted as accurate. There is no
testimony or evidence contradicting them. -
All who submitted applications and requested inter-
views were interviewed. Davis and Mattern testified that
all references were checked. There is no evidence of im-
propriety, or evidence that the interviewers were biased
against any employee or the Union. There is no evidence
that anyone told any interviewer that current employees
or the-Union were to be acted against. It seems apparent
that the interviews were conducted in a lawful and
proper manner.27 There is no evidence or testimony that
any interviewer asked any applicant anything concerning
the Union; or their union activities.
D. The Hiring
Davis, Mattern, and Eppie credibly testified that they
alone determined the employees, to be hired,', and -that
-they did so independently of each other. -
Artimisi testified that she was satisfied with the- work
performance of all unit employees working under Hillha-
ven.
'Norma Mann testified that she worked for the facility
as a dietary aide from 1970 ' until 29 October 1984 and
showed her length of service on her application, but she
was not hired by Respondent. She was interviewed by
the dietician (Eppie), but she ;never had worked as a di-
etician. She said she -was not asked in her interview
about her length of service.
Josephine Rucker testified: She worked in the laundry
for Hillhaven, approximately 17 years.. She was inter-
viewed and was asked 1, November _to report for work,
which she did on-2 November. When she started work-
ing, she found it ` necessary to show "everything" to a
new. employee. Rucker later; was discharged by Thomp-
son, allegedly, because . she . mistreated patients, but
.Rucker, denied that allegation.,
28 Thompson credibly testified that employees at other facilities owned
or. operated , or both, by Easterday and Inland Pacific, were interviewed
for possible employment at Shoreline South One employee was trans-
ferred from the New Heart facility, and one was trained at New Heart
for transfer to Shoreline South as a supervisor
21 The matter of Lurline Thompson 's failure to be hired is discussed
infra The matter of Mills is considered to be of only incidental interest,
since it is clear that Thompson wanted Mills off the payroll because of
matters not related to union activity
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helen Sanders testified that she was interviewed ' by
Eppie, who asked if she would work for $4.50 per hour.
Sanders told her yes.
Lurline Thompson worked for Shoreline South from
15 August 1969 to 31 October 1984, as a 'nurse assistant.
As earlier noted, she was a shop steward. She was inter-
viewed by Davis, who testified that she asked questions
of Lurlirie Thompson concerning abbreviations used in
the nursing field, and concerning diabetic patients, such
as trimming nails and checking diet. Davis testified that
she did not recall the answers to her questions. Ltirline
Thompson's application contains - a- note "could not,
answer basic nursing question," which Davis credibly
testified she saw written by Zagar, who did not testify.'
Lurline Thompson testified ' that Davis asked questions
-only about the initials "BID" and "QID," which she did
not answer because they refer to medication, which she
did not administer.- She said she told Davis, when inter-
viewed, that she never trimmed nails -of diabetic patients
without first checking. She denied owning or carrying a
gun, or ever threatening anyone with a gun . Barnett cor-
roborated Lurline Thompson, and said it was not appro-
. priate to ask nursing assistants about abbreviations that
are used by licensed personnel. Barnett further testified
that, nursing assistants are instructed "they won't do the
toe nails" of diabetic patients. They must refer the matter
to licensed personnel.
Thompson testified- that Artimisi had told him that she
promoted Lurline Thompson because "there was an
opening and she felt threatened if she did not give her
the position." _ Thompson testified that he was alarmed
about references to a gun . He also stated that Respond-
ent has fewer employees than the predecessor had, par-
tially because of the institution of a 4-2 schedule and the
elimination of part-time employees.: -
Mattern testified that his inspection of the facility, re-
ferred to above, took approximately 45 minutes, and he
believed the maintenance employees were not doing
their job properly because the premises seemed to be in
some disrepair.
Discussion
It- is evident that Respondent did not -need all the em-
ployees Hillhaven had, and that the employee comple-
ment was reduced accordingly. On-call employees were
eliminated . The staff of RNs -was reduced. The 4-2
schedule of Respondent was more economical of em-
ployee use than the uncertain schedule followed by Hill-
haven. Respondent determined ahead of time that the
total staff should be 58, rather than 80. - -
The General Counsel argues that Respondent intended
from the outset to get rid of union employees, but 'that
argument is not supported by the record. Several em-
ployees not retained never were in the bargaining unit .211
Several unit employees did not sign up for interviews, or
make themselves available for- hire.29 Eppie hired more
28 E g ;most of the RNs '
29 These employees were Asuncion , Fernandez, McGee , Silongan, and
Santiago
employees than any other interviewer, and most of those
she hired, (seven rank-and-file employees and one super-
visor) were former employees, -albeit some of those were
probationary employees. Five of her hires were not
former employees. Other than the dietary department,
for which -Eppie hired, other former employees were
hired for the maintenance and "environment" depart-
ments. A total of 16 former employees were hired, albeit
some of them were recent hires still on probation.30
Most of the alleged 8(a)(3)s did not testify, and there is
no evidence of their interviews, other than the credible
testimony of Davis, Mattern, and Eppie.
There is much uncontradicted testimony' showing that
Swangler spent many hours, over several days, in the ad-
ministrative office studying personnel files. Easterday
credibly -testified that he had determined that neither law
nor business judgment required more than 58 employees.
Thompson, Mattern, and several other employees made
it clear that food and personnel costs were too high, and
that the facilities were not in as good.physical condition
as they should be. Easterday, Thompson, and others
.made several inspections of the facility, and by the time
it took over, Respondent had a good picture of the facili-
ty and its defects. Substantial reasons existed -for Re-
spondent recognizing that a thorough. shakeup was. nec-
essary. Those reasons were not successfully contradicted.
For all that appears of record, the facility -would not
have been for sale but for the deficiencies that Respond-
ent set about to correct.
Quite a lot of testimony was directed to the length of
time that many of the discharged employees had been
working for Hillhaven. However, that is not proof of ac-
ceptability, of those employees so far as Respondent was
concerned., Respondent was well acquainted with the ap-
pearance and- condition of the' facility; with the files of
the old employees, and with the nature of the administra-
tive and supervisory staff. It was the General Counsel's
burden to establish, if such was the fact, that union affili-
ation, and not Respondent's business judgment, motivat-
ed the employee changes instituted by Respondent. That
burden was not met. - - -
It probably is true, as discussed, above, that 'Thompson
did not like the Union; and did not want Respondent to
be unionized.' However, that fact alone is not controlling.
In the face of the evidence and testimony, the leap be-
tween Thompson' s union animus and discharge of the
employees is' too great for accomplishment solely by in-
ference.'Such an inference is all that-is presented. Easter-
day, Davis, Mattern, and Eppie were credible witnesses.
The latter three did the hiring and initial work schedul-
ing of unit employees, and all of them testified that,-in so
doing, they acted solely pursuant to then' own judgment.
All of them testified that no one told them not to -hire
old employees, or to hire in order to undercut the Union.
There is no indication of union animus on the part of
so Payroll records apparently indicate that Respondent had more than
58 employees after 1 November; but that matter was not pursued at trial
and is inconclusive, since it appears most likely that the excess reflects
overlapping and turnover, rather than the number of permanent employ-
ees '
SHORELINE SOUTH, INC 1 923
Easterday.3 i There is no evidence or testimony, howev-
er slight, that Easterday or Thompson, or any other
member of Respondent's management, instructed the
interviewers not to hire particular people.
Much testimony involved Thompson' s_ instructions to
Artimisi and Barnett relative to warning notices. The no-
tices themselves are not in issue. None is alleged to be in
violation of the Act. Artimisi acknowledged that hers
were based upon acts that warranted some discipline,
and that Thompson did not instruct her to manufacture
reasons for warnings. Barnett did not testify that Thomp-
son gave her any such instruction. Thompson testified
that -he was a strict administrator, and was anxious to
bring order out of the chaos that he believed existed, and
that portion of his testimony had the ring of accuracy.
Whether or not he wanted to see the three shop stew-
ards nailed is controlling only if that desire was shown
to have found its way into the failure to hire. No such
finding can be made, since Thompson neither inter-
viewed nor hired the employees here involved, and there
is no proof that he issued any hiring instructions to the
interviewers.
So far as the closeness in time between the interviews
and Respondent's takeover is concerned, Easterday cre-
dibly testified that he attempted, without success, to
move earlier but was opposed by Hillhaven' s manage-
ment because of possible adverse effect on employees if
an early announcement of takeover was made. That testi-
mony was not contradicted. No -member of Hillhaven's
management testified. -
Neither Lurline Thompson nor Davis was questioned
in detail concerning the former's interview, and Zagar,
who placed the note on Lurline Thompson's application,
did not testify. The testimony of Lurline Thompson and
Barnett relative to questions about medication initials
was incomplete and indecisive. Lurline Thompson testi-
fied that she did not trim diabetics' nails without first
checking, but Barnett said aides "won't do the toe-
nails"-those matters must be referred to licensed per-
sonnel. Lurline Thompson was a long-term employee
and a shop steward, but Thompson testified that, -based
on Artimisi's disclosures to him, he was alarmed about
Lurline Thompson. However,' whether or not the latter
actually threatened Artimisi, or Thompson thought she
did, is not controlling. The question is whether Respond-
ent did not hire Lurline Thompson because of her union
affiliation, and the evidence and the testimony simply do
not provide adequate basis for concluding that her elimi-
nation from the staff was unlawful. The circumstances of
her release from employment possibly are suspicious, but
suspicion is not proof. Based on the testimony of Easter-
day, Davis, Mattern, and Eppie, it does not appear that
Lurline Thompson was treated differently from all others
who were not hired.
It is found that the employees named in the complaint
were not discharged in violation of the Act as alleged by
the General Counsel.
31 There was some testimony concerning the fact that most (but not
all) of Easterday 's leased or owned facilities are nonunion , but that fact is
not proof of what happened at Shoreline South This case must stand on
its own feet
The complaint does not allege, nor was it shown at
trial, that Respondent refused upon the Union's request
to bargain. Ridgell testified that, as' of 19 October, he
-thought Respondent may be going to violate the Act
later, on 1 November, hence he prepared a strike notice
in advance . Respondent sent to Ridgell in the mail a
copy of its notice to employees, and Easterday suggested
that Ridgell telephone Respondent's attorney, which he
did. The Union knew several months in advance, in
April, of a possible sale of the facility, but did not know
the name of the buyer until October. Ridgell testified
that, as of 19 October when he prepared the strike
notice, "If.the worst did not-happen, we wouldn't have
struck." Patently, the Union did not believe Respondent
was engaging in unfair labor practices as of 19 October.
Ridgell last talked with Respondent's representatives ap-
proximately on 31 October and, so far as the record
shows, there never has been a request by the Union that
Respondent bargain with it. As of 19 October, Ridgell
was well aware that Respondent was going to interview
applicants" for all, positions of employment, and that, pos-
sibly, some of the hires would-not be former employees.
He did not question Respondent about that fact, but in-
stead, assumed that Respondent was obligated to hire
former employees regardless of Respondent's desire or
reasons , and prepared in advance a strike notice because
he felt that Respondent was going to violate the Act
later; on 1 November. ` .
E. Alleged 8(a)(1) Violation
Paragraph 7(b) of the .complaint alleges that, on or
about 20 November, Thompson threatened to terminate
employees if they gave information to union picketers.
Rucker testified that Thompson held a meeting of em-
ployees 20 November. She stated that, after Thompson
explained Respondent's employee benefits and said he
wanted the employees to get along with each. other, he
said:
A. And then he was saying that he heard that in-
formation that was going on in the place was going
out of the Union. And _ when he was doing all that
talking about that, he looked right dead at me and I
was sitting in the back with Mike Morris. I didn't
know nothing about-that.
Then he said that if he finds out who is giving
information outside, they were going to be immedi-
ately terminated.
Thompson testified that, during the strike, there had
been threats against employees, some had been hit, and
cars had been damaged, as a result of which Respondent
.called police and obtained a court restraining order. He
testified concerning the meeting of 20 November:
Q. And let's do it this way; what was the purpose
of the meeting?
A. To let the employees know that they had
nothing to worry about once they got in the build-
ing and when they left the building going to work
that we had a legal restraining order and I read the
924 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
section to them and what they needed to do if they
were threatened anymore.
Q. Was there any discussion at all about employ-
ees going out and talking to the pickets or anything
like that?
A.• Yes, I made a statement that it 's important
until this blows over that you try to take your
lunch breaks in here. and your ten minute ' break in
the morning and afternoon in the facility ; and the
reply when I made that statement , well, don't
worry about that . That was about it.
Thompson did not specifically deny Rucker's testimo-
ny, but he, stated relative to the entire meeting, "That
was about it," referring to the testimony quoted above,
and he was not cross -examined relative to his testimony
on this subject. -
Thompson is credited , and it . is found that this allega-
tion was not proved.
F: The Successorship Issue32
As noted earlier, it is clear that Shoreline South and
Inland Pacific are point employers.33
It is equally clear that Shoreline South is the successor
(except as later limited so far as employees are con-
cerned) of Hillhaven, since it operates the same facility
in the same location with the same equipment and em-
ployee classifications for the same patients. Had a majori-
ty of the same employees been retained, all legal implica-
tions flowing from successorship would have applied.34
However, a successor employer is not obligated to
hire any of its predecessor's employees.35 Thus, Re-
spondent was free to hire an entirely new work force if
it so desired, in_ which case the obligations of successor-
ship would not apply.36
33 Respondent argues that the bargaining unit alleged by- the General
Counsel is not an appropriate unit. That argument ii found to be without
merit, but that finding is not necessary to determination of any issue
33 L & J Equipment , 274 NLRB 9 (1985) Sakrete of Northern Califor-
nia, 137 NLRB 1220 (1962)
34 NLRB v Burns Security Services, 406 U S 272 (1972).
35 Howard Johnson v Hotel & Restaurant Employees, 417 U S 249
(1974)
38 Counsel for Respondent argues that this right to hire a new employ-
ee complement and the fact that 16 former employees were hired militate
against a conclusion that Respondent hired new employees in order to
eliminate the Union , rather than for legitimate business purposes That ar-
gument is not without merit
However, the right to hire new employees does not
prevail if former employees are rejected solely because
of their union affiliation.37 The General Counsel argues
that "Given Respondent's practice of only operating
nonunion facilities, this circumstance alone supports a
finding that Respondent purposely did not retain em-
ployees because of their union affiliation." That conclu-
sion is not- warranted. There is no such per se rule of
law, and the facts of this case do not support that con-
clusion. the General Counsel adds to that argument the
conclusion that Respondent's union animus supports a
finding that former employees were rejected for union
reasons.38 That -conclusion equally is unwarranted, as
discussed supra. As earlier noted, union animus does not,
per se, create a violation of the Act. -
Finally, the General Counsel argues that the strike was
an unfair labor practice strike. That conclusion is not
consistent with the record, as discussed above.
It is found that Respondent did not violate Section
8(a)(5) and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. Shoreline South Intermediate Care, Inc.; Inland Pa-
cific, Inc., is, and at all times material herein has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hospital and Institutional Workers Union, SEIU,
Local 250, AFL-CIO is , and at all times material herein
has been, a labor organization within the meaning of the
Act.
- 3. Respondent did not, as' alleged, violate Section
8(a)(1), (3), or (5) of the Act.
ORDER
The complaint is dismissed in its entirety.
37 Burns, supra, Howard Johnson, supra
38 The General Counsel particularly points to the alleged "bogus
warnings " As discussed above, Artimisi acknowledged that she was not
told to manufacture warning excuses , and that in all her warnings pursu-
ant to Thompson's instructions , some discipline was warranted The Gen-
eral Counsel also concludes that the hiring by Respondent of "green
hands" fortifies the conclusion that Respondent was trying to oust the
Union However, other than the inconclusive testimony of Rucker, there
is no evidence that the "green hands" were incompetent or were phony
hires Seniority does not necessarily imply good performance as an em-
ployee