Tracy Convalescent Hospital

National Labor Relations Board - Board Decisions

Nov 18, 1976

226 N.L.R.B. 1016 (N.L.R.B. 1976)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Joaquin Convalescent Hospital , Inc. d/b/a Tracy
Convalescent Hospital and Local 250 , Hospital &
Institutional Workers Union , Service Employees In-
ternational Union , AFL-CIO. Case 20-CA- 11279
November 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on April 6, 1976, by Local
250, Hospital & Institutional Workers Union, Service
Employees International Union, AFL-CIO, herein
called the Union, and duly served on San Joaquin
Convalescent Hospital, Inc., d/b/a Tracy Convales-
cent Hospital, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
20, issued a complaint and notice of hearing on May
27, 1976, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance as follows:
At all material times, the Union has represented a
majority of Respondent's employees in the appropri-
ate unit of all nursing, housekeeping, dietary, mainte-
nance, and laundry employees and, by virtue of Sec-
tion 9(a) of the Act, has been the exclusive
representative of all unit employees. Commencing on
or about December 2, 1975, the Union and Respon-
dent met on various occasions to negotiate, and on or
about January 21, 1976, the Respondent reached a
complete understanding on all terms of a collective-
bargaining agreement covering the wages, hours, and
working conditions of the employees in the aforesaid
appropriate unit. Commencing on or about February
5, 1976, the Union requested the Respondent to exe-
cute the above collective-bargaining agreement but
Respondent has refused, and continues to date to re-
fuse, to do so, although the Union has requested and
continues to date to request it to do so. Respondent
did not file an answer to the complaint.
On August 18, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 25,
1976, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent failed
to file a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing, duly served
on the Respondent and its designated representative
on May 27, 1976, specifically states that unless an
answer to the complaint is filed within 10 days from
service thereof "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true, and
may so be found by the Board." According to the
uncontroverted allegations of the Motion for Sum-
mary Judgment, when the Respondent failed to file
an answer to the complaint within the stated time,
the Respondent as a courtesy was advised on Au-
gust 5 and 6, 1976, by letter of the necessity of filing
an answer and further was advised that the General
Counsel would move for summary judgment if no
answer was received by August 11, 1976. As of Au-
gust 16, 1976, the date of the Motion for Summary
Judgment, no communication or answer had been
received from the Respondent. No good cause to the
contrary having been shown for the failure to file an
answer, in accordance with the rule set forth above,
the allegations of the complaint are deemed to be
admitted to be true and are so found to be true.
On the basis of the entire record, the Board mades
the following:
226 NLRB No. 156
TRACY CONVALESCENT HOSPITAL 1017
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation , has been
engaged in the business of operating Tracy Convales-
cent Hospital in Tracy, California . During the past
year, Respondent received gross revenues in excess
of $100 ,000 from the operation of its convalescent
hospital and purchased goods and supplies valued in
excess of $5,000 directly from suppliers located out-
side the State of California.
We find , on the basis of the foregoing , that Re-
spondent is , and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that
it will effectuate the policies of the Act to assertjuris-
diction herein.
C. The Request and Refusal To Bargain
Commencing on or about February 5, 1976, and at
all times thereafter, the Union has requested the Re-
spondent to execute the collective-bargaining agree-
ment, covering the wages, hours, and working condi-
tions of all the employees in the above-described unit
on which the Respondent and Union had reached
complete understanding on January 21, 1976. Com-
mencing on or about February 5, 1976, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to execute said col-
lective-bargaining agreement.
Accordingly, we find that, since February 5, 1976,
by its refusal to execute said collective-bargaining
agreement, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Local 250, Hospital & Institutional Workers
Union, Service Employees International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All nursing department, housekeeping, di-
etary, maintenance and laundry employees, in-
cluding maids, cooks, porters, kitchen helpers,
dishwashers, nurses aides and orderlies em-
ployed by the Respondent at its Tracy, Califor-
nia, facility; excluding registered nurses, li-
censed vocational nurses, dietary manager,
office clerical employees, watchmen, guards and
supervisors as defined in the Act.
B. The Union's Representative Status
At all times material the Union has represented a
majority of the employees of Respondent in said
unit, and, by virtue of Section 9(a) of the Act, the
Union has been and continues to be their representa-
tive for the purpose of collective bargaining with the
Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent unlawfully refused
on and after February 5, 1976, to execute the agree-
ment reached on January 21, 1976, in violation of
Section 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom, and, upon request, exe-
cute that collective-bargaining agreement as of Feb-
ruary 5, 1976, and to give retroactive effect to the
agreement from the February 5, 1976, effective date
and make the employees whole for any losses, if any,
they may have suffered as a result of the failure to
execute the agreement plus interest at 6 percent per
annum as prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
1 H J Heinz Company v N L R B, 311 U S 514 (1941), McCready and
Sons, Inc and Melco Construction, Inc, 195 NLRB 28 (1972), International
Alliance of Theatrical Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada (Walt Disney World Co), 215 NLRB
299 (1974)
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. San Joaquin Convalescent Hospital, Inc., d/b/a
Tracy Convalescent Hospital, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 250, Hospital & Institutional Workers
Union, Service Employees International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All nursing department, housekeeping, dietary,
maintenance and laundry employees, including
maids, cooks, porters, kitchen helpers, dishwashers,
nurses aides and orderlies employed by the Respon-
dent at its Tracy, California, facility; excluding regis-
tered nurses, licensed vocational nurses, dietary man-
ager, office clerical employees, watchmen, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of "Section 9(b) of the
Act.
4. At all times material herein the above-named
labor organization has been and now is the exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about February 5, 1976, and
at all times thereafter continuing to refuse to execute
the collective-bargaining agreement upon which the
Respondent reached complete understanding on Jan-
uary 21, 1976, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
6. By the aforesaid conduct described in para-
graph 5, above, Respondent has interfered with, re-
strained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise of
the rights guaranteed to them in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, San
Joaquin Convalescent Hospital, Inc., d/b/a Tracy
Convalescent Hospital, Tracy, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to execute the collective-bargaining
agreement, covering the wages, hours, and working
conditions of the unit employees, on which it reached
complete understanding on January 21, 1976, and re-
fused to execute on February 5, 1976, with Local 250,
Hospital & Institutional Workers Union, Service
Employees International Union, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All nursing department, housekeeping, di-
etary, maintenance and laundry employees, in-
cluding maids, cooks, porters, kitchen helpers,
dishwashers, nurses aides and orderlies em-
ployed by the Respondent at its Tracy, Califor-
nia, facility; excluding registered nurses, li-
censed vocational nurses, dietary manager,
office clerical employees, watchmen, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, execute the collective-bargain-
Ing agreement described in paragraph 1(a) above and
give retroactive effect to it from the February 5,
1976, effective date and make whole employees for
any losses suffered as a result of the failure to execute
it, in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Post at its convalescent hospital at Tracy, Cali-
fornia, copies of the attached notice marked "Appen-
dix." I Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent 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 by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
2In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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 "
TRACY CONVALESCENT HOSPITAL 1019
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to execute the collective-
bargaining agreement , covering the wages,
hours , and working conditions of our employ-
ees, on which we reached complete under-
standing with Local 250, Hospital & Institution-
al Workers Union, Service Employees
International Union , AFL-CIO, covering the
following appropriate unit:
All nursing department , housekeeping, di-
etary, maintenance and laundry employees,
including maids, cooks, porters, kitchen
helpers, dishwashers , nurses aides and or-
derlies employed by the Respondent at its
Tracy, California facility; excluding registered
nurses, licensed vocational nurses, dietary
manager , office clerical employees , watch-
men, guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL upon request , execute the collective-
bargaining agreement described above as of
February 5, 1976, and give retroactive effect to
the agreement from that effective date.
WE WILL make whole any losses our employ-
ees may have suffered from our refusal to sign
the agreement on February 5, 1976, plus 6 per-
cent interest per annum.
SAN JOAQUIN CONVALESCENT HOSPITAL, INC.,
d/b/a TRACY CONVALESCENT HOSPITAL