Walton Caring Center

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 60 (N.L.R.B. 1986)

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dasal Caring Centers , Inc., d/b/a Lemay Caring
Center, and Dasal Caring Centers, Inc., d/b/a
Walton Caring Center and Service Employees
International Union , Local 50, AFL-CIO. Case
14-CA-17421
30 May 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 21 February 1985 Administrative Law Judge
Phil W. Saunders issued the attached decision. The
Respondent 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, 2
and conclusions and to adopt the recommended
Order as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
i The Respondent has excepted to the judge's adoption, with only
minor modifications , of many portions of the General Counsel's posthear-
ing brief as part of his decision . We do not encourage this practice but
because both the record and case law cited fully support the judge's find-
ings, we do not find that the judge has acted prejudicially See Washing-
ton Beef Producers, 264 NLRB 1163 fit. 2 (1982), enfd. mew. 735 F 2d
1371 (9th Cir. 1984).
The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cit. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 We agree with the judge's general statement of the law concerning
the adverse inference rule, but do not adopt his use of the rule in one
instance . We do not agree with his drawing an inference from the Re-
spondent's refusal to produce the subpoenaed employment applications
that the employees it hired were less qualified than those of its predeces-
sor or that they failed to meet the Respondent 's purported standards for
hiring While it is proper to infer that the employment applications are
unfavorable to the Respondent 's position, it is not proper to draw such
specific conclusions from applications which might give rise to more than
one inference regarding their substantive content. Cf. Auto Workers Y.
NLRB, 459 F 2d 1329 (D C Cir. 1972), where the failure to produce sub-
poenaed hiring records was found to warrant the striking of a cost-cut-
ting defense to allegations that employees were discharged in violation of
Sec. 8(aX3) and (1). Our refusal to adopt the judge's inference concerning
the employment applications does not, however, affect our adoption of
his finding that the Respondent violated Sec . 8(aX3) and (1) inasmuch as
other evidence , particularly the credited testimony concerning Acting
Administrator Sczpanski 's comments to employees , amply demonstrates
that the Respondent refused to hire its predecessor's employees because
of their union affiliation
8 We shall modify the judge 's recommended Order to provide for the
reinstatement of employees who were discriminatorily denied employ-
ment . We also shall provide a new notice which reflects this modifica-
tion, modifies the language to conform the standard language used for
cease-and-desist provisions and to conform with other provisions of the
recommended Order, and sets forth the names of the discriminatees.
judge as modified below and orders that the Re-
spondent , Dasal Caring Centers, Inc., d/b/a Lemay
Caring Center, and Dasal Caring Centers, Inc.,
d/b/a Walton Caring Center, St. Louis, Missouri,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
"(b) Offer to each of the employees named in the
appendix, within the previously described units, im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any rights or privileges previously en-
joyed."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to employ former employ-
ees of Walton Homes, Inc., because of their mem-
bership in or representation in the Union, or be-
cause of their coverage by a contract between
Walton Homes and Service Employees Internation-
al Union, Local 50, AFL-CIO.
WE WILL NOT refuse to bargain with Service
Employees International Union, Local 50, AFL-
CIO concerning the rates of pay, wages, hours, and
other working conditions of our employees at our
Walton and Lemay Centers.
WE WILL NOT tell employees that they must
withdraw from the Union in order to be hired.
WE WILL NOT tell employees that continued em-
ployment depends on their withdrawal from the
Union.
WE WILL NOT interrogate employees about their
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, recognize and bargain in
good faith with Service Employees International
Union, Local 50, AFL-CIO concerning the rates
of pay, wages, hours of work, and other working
conditions of our employees at our Walton and
Lemay Centers in these bargaining units:
280 NLRB No. 7
LEMAY CARING CENTER
All employees at our Walton facility at 4527
Forest Park Blvd., St. Louis, Missouri, exclud-
ing office clerical and professional employees,
guards and supervisors as defined in the Act,
and
All employees at our Lemay facility at 1204
Telegraph Road, St. Louis, Missouri, including
certified medicine technicians, nursing assist-
ants, activity employees, laundry, dietary and
housekeeping employees, excluding office cler-
ical and professional employees, registered
nurses, licensed practical nurses, guards and
supervisors as defined in the Act.
WE WILL offer all the employees listed below
within the units who were represented by Local 50
and covered by contracts between Service Em-
ployees International Union, Local 50, and prede-
cessor Walton Homes, Inc. as of 30 April 1984, im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any rights or privileges previously en-
joyed.
Adams, Brenda Sue
Cockrell, Wanda
Darby, Cheryl
Duffen, Rozella
Duroso, Deborah
Furgerson,
Jacquelyn
Robinson, Annette
Rothiff, Beulah
Smith, Bobbie Jean
Smith, Elizabeth
Wilson, Virginia
Donaldson, Alberta
Martin, Carol A.
Rogers, Sarah
Irby, Magnolia
Thompson, Edna
Cluck, Paula
Bishop, Edna
Hall, Lucinda
Hatcher, Ruth
Mitchell, Diane
Gries, Anita
Kiser, Dorothy
Lambert, Mary Ann
Malady, Corlotta
Martin, Elizabeth
Newton, Linda L.
Rozgowski, Debbie
Glass, Evelyn
Drennan, Marie
WE WILL reimburse the above employees for
any losses they may have suffered by reason of our
refusal to employ them upon our commencement
of operation of the Walton and Lemay facilities
less any interim earnings, plus interest.
DASAL CARING CENTERS, INC.
Sandra J. Holman, Esq., for the General Counsel.
Gerald Tockman, Esq., for the Respondent.
Linda Krueger MacLachlan, Esq. and Boneva Brown for
the Charging Party.
DECISION
61
STATEMENT OF THE CASE
PHIL W. SAUNDERS , Administrative Law Judge. Based
on an original charge filed on May 9 , 1984,1 by Service
Employees International Union , Local 50, AFL-CIO
(the Charging Party , the Union , or Local 50) a com-
plaint and amendment to the complaint was issued on
June 13 and 18 against Dasal Caring Centers, Inc. (Re-
spondent or Dasal) alleging a violation of Section 8(a)(1),
(3), and (5) of the Act. Respondent filed an answer to
the complaint denying it had engaged in the alleged
matter, and subsequent to the hearing, both the General
Counsel and Respondent filed briefs in this matter.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Walton Home Inc. is a corporation duly organized
under and existing by virtue of the laws of the State of
Missouri and , at all times material herein , has maintained
an office and place of business at 1204 Telegraph Road
in St. Louis, Missouri (the Lemay Home or Center).
Walton Home, Inc. also maintained another place of
business at 4527 Forest Park in St. Louis, Missouri (the
Walton Home or Center). Walton Home, Inc. was at all
times material herein engaged in the business of operat-
ing proprietary nursing homes, and their former places of
business located at 1204 Telegraph Road and 4527 Forest
Park are both involved in this proceeding.
During the 12-month period ending April 30, 1984,
which period is representative of its operations during all
times material hereto, Walton Home, Inc., in the course
and conduct of its business operations, derived gross rev-
enues in excess of $100,000 and delivered at its Lemay
Home and Walton Home places of business supplies,
goods, and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to its places of business
at 1204 Telegraph Road and 4527 Forest Park, directly
from points located outside the State of Missouri.
Walton Home, Inc. was, at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Respondent Dasal Caring Centers, Inc. is a corpora-
tion duly organized and existing by virtue of the laws of
the State of Missouri and, at all times material herein,
Respondent has maintained an office and place of busi-
ness in St . Charles, Missouri . Respondent maintains an-
other place of business at 4527 Forest Park, St. Louis,
Missouri (the Walton Home or Center), and also main-
tains a place of business at 1204 Telegraph Road in St.
Louis, Missouri (the Lemay Home or Center). Respond-
ent is, and has been at all times material herein , engaged
in the business of operating proprietary intermediate care
facilities, and Respondent's places of business located at
1 All dates are 1984 unless stated otherwise
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1204 Telegraph Road and 4527 Forest Park are both in-
volved in this proceeding.
Based on a projection of its operations about April 30,
at which time Respondent commenced its operations,
Respondent , in the course and conduct of its business op-
erations, will derive gross revenues in excess of $100,000
and will annually purchase and receive at its 1204 Tele-
graph Road and 4527 Forest Park , St. Louis, Missouri
places of business supplies, goods, and materials valued
in excess of $50,000 directly from points located outside
the State of Missouri.
Respondent is now , and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is, and has been at all times mate-
rial herein, a labor organization within the meaning of
Section 2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Sec-
tion 8(aXl) in the following respect:
On or about April 30, Lemay Home Administra-
tor Sczpanski told employees they would be hired
by the Respondent if they withdrew from the
Union.
On or about April 30, Lemay Home Administra-
tor Sczpanski conditioned an employee's continued
employment on the employee's withdrawal from the
Union.
Sometime in May 1984, Lemay Home Adminis-
trator Sczpanski conditioned an employee's contin-
ued employment on the employee's withdrawal
from the Union.
Sometime in May 1984, Lemay Home Adminis-
trator Sczpanski interrogated an employee about the
employee's intent to engage in Union activities.
It further alleges, as amended , that since April 30,
1984, and continuing to date, Respondent has failed and
refused to hire the following employees previously em-
ployeed at the Lemay Nursing Center and Walton Nurs-
ing Center by Walton Home, Inc.-herein the predeces-
sor, Walton Homes or Daake:
Adams, Brenda Sue Thompson, Edna
Cockrell, Wanda Cluck, Paula
2 Respondent denies that the Charging Party was a labor organization
within the meaning of Sec . 2(5) of the Act, arguing that it was not enti-
tled to labor organization status because it did not meet the minimum
standards of a labor organization such as notifying employees of the sale
of the facilities , losing job descriptions , and also because it engaged in
violence and made certain threats. The Board has long held that a union
meets the requirement of Sec. 2(5) of the Act if it exists for purposes, in
whole or in part, of dealing with employers regarding wages , hours, and
other terms and conditions of employment , and it is an organization in
which employees participate . The record in this case clearly establishes
that this is the situation here. Moreover, there have been no charges filed
against the Union by Respondent in relationship to any alleged threats of
illegal conduct on behalf of the Union , and such matters and circum-
stances, even if present , are not factors in determination of whether a
labor organization meets the requirements of Sec . 2(5) of the Act
Darby, Cheryl
Duffen, Rozella
Duroso, Deborah
Furgerson, Jacquelyn
Robinson, Annette
Rothiff, Beulah
Smith, Bobbie Jean
Smith, Elizabeth
Wilson , Virginia
Donaldson, Alberta
Martin, Carol A.
Rogers, Sarah
Irby, Magnolia
Bishop, Edna
Hall, Lucinda
Hatcher, Ruth
Mitchell, Diane
Gries, Anita
Kiser, Dorothy
Lambert, Mary Ann
Malady, Corlotta
Martin, Elizabeth
Newton, Linda L.
Rozgowski, Debbie
Glass, Evelyn
Drennan, Marie"
The complaint further alleges that Respondent was a
successor to Walton Homes and violated Section 8(a)(1)
and (5) of the Act by failing and refusing to recognize
and bargain with Local 50.
Basically , the matters and issues in this case arose in
late April when Respondent purchased the Lemay and
Walton intermediate care facilities from John Daake-
president of Walton Homes, Inc.
A. Procedural Matters
Counsel for the General Counsel issued a subpoena
duces tecum on Respondent Vice President Mathias
Dasal, and Respondent filed a petition to revoke that
subpoena, and which petition was referred to me for
ruling. However, during the course of the hearing, the
parties were able to reach agreement regarding the pro-
duction of all items of the subpoena with the exception
of items 4, 6, 9, and 10. Item 4 is for all job applications
received by Respondent during the period April 1
through May 31; item 6 is for job descriptions and duties
for all employees employed by Respondent at its Walton
and Lemay Caring Centers; item 9 is copies of all per-
sonnel policies and work rules currently in effect at Re-
spondent's Walton and Lemay facilities; and item 10 is
personnel files and employment records for all employ-
ees employed by Respondent at its Walton and Lemay
facilities including, but not limited to, wage rates and
benefits. After considerable discussions on relevancy and
other factors, I then directed counsel for Respondent to
produce items 4, 6, 9, and 10, which Respondent refused
to do, and based on Respondent's refusal to furnish the
information, counsel for the General Counsel then re-
quested the admission of secondary evidence on the
issues raised by the subpoena, the exclusion of certain
testimony relating to the items in the subpoena and pre-
cluding cross-examination of the General Counsel's wit-
nesses concerning such matters, and the drawing of an
unfavorable inference on the issues in dispute against Re-
spondent.4
8 The record shows and/or it was stipulated between the parties that
the individuals specifically named above were former employees of
Daake at either the Walton or Lemay Centers, and in late April filed ap-
plications for employment with Respondent and that Respondent did not
offer employment to any of them
4 Items 4, 6, 9, and 10 of the subpoena duces tecum go mainly to alle-
gations in pars 2F, 2G, 6, and 7 of the complaint regarding Respondent's
successorship status and which employees of Daake (Walton Homes)
Continued
LEMAY CARING CENTER
Counsel for the General Counsel requests that the fol-
lowing adverse inferences be drawn against Respondent
as it relates to Respondent's failure to comply with pro-
duction of items 4, 6, 9, and 10 of the subpoena:
1. That there were no interfacility transfers between
Walton and Lemay after April 30.
2. That after April 30 all employees at the Lemay fa-
cility enjoyed the same wages, hours, and terms and con-
ditions of employment.
3. That after April 30 all employees at the Walton fa-
cility enjoyed the same wages, hours, and terms and con-
ditions of employment.
4. That since April 30, Respondent's employees at
Walton and Lemay facilities had the same hours, terms,
and conditions of employment as enjoyed by Daake's
employees performing the same job duties as employees
of the predecessor.
5. That the personnel files and employment records of
employees hired by Respondent would reflect that em-
ployees hired are less qualified than Daake's employees
not hired, and that employees hired did not meet the
standards allegedly set by Respondent for the hiring of
employees.
6. That the personnel files and employment records
would demonstrate that Sczpanski participated in the
hiring decisions.
7. That all Daake's employees, unless otherwise agreed
to by counsel for the General Counsel, filed job applica-
tions with Respondent.
8. That employees were hired for the Walton facilities
before Daake's employees at Walton were interviewed
and/or completed employment applications.
Counsel for the General Counsel would further move
to strike the testimony of Terry Ervin on cross-examina-
tion regarding any changes in wages, benefits, vacation,
etc., after April 30 and Ervin's cross-examination regard-
ing the personnel and/or employee manual for the Dasal
Corporation. Moreover, counsel for the General Counsel
would further move to strike the testimony of Mathias
Dasal on behalf of Respondent where such testimony is
in conflict with the General Counsel's witnesses; and re-
quests that an adverse inference be drawn regarding op-
erations of the facilities after April 30 along with
Sczpanski's role in the hiring process, changes in person-
nel policy, wages, and benefits; the hiring of outside em-
ployees before even interviewing and/or taking applica-
tions from Daake's employees at the Walton facility; the
(inferior) qualification of outside employees hired to per-
form work previously performed by Daake's employees
not hired; and job duties performed by employees after
April 30.
Counsel for Dasal argues that the General Counsel's
motion to strike evidence adduced by Respondent must
be denied; that the Board has no statutory authority to
made applications, Respondent 's failure and refusal to hire Daake's em•
ployees to avoid unionization, the agency and/or supervisory status of
Charlotte Sczpanski during the period April 26 through 30, and the ap-
propriateness of the bargaining unit, as well as rebutting Respondent's
testimony regarding the procedures used to consider Daake 's employees
for hire . Secondary evidence through witnesses was presented concern-
ing some of the allegations affected by items 4, 6, 9, and 10 of the sub-
poena
63
impose sanctions on a party for noncompliance with a
subpoena, but, to the contrary, the sole authority to
order this sanction rests exclusively in the Federal dis-
trict courts-citing for authority 29 U.S .C. § 161 (2);
NLRB v. International Medication Systems , 640 F .2d 1110
(9th Cir . 1981).
Moreover , argues Respondent , no adverse inference
may be drawn from Dasal 's refusal to produce subpoe-
naed documents; that adverse inferences are based on
logic and experience , and because an inference is not evi-
dence, the General Counsel cannot use such inferences
to supply missing elements of the prima facie case. Fur-
ther, maintains Respondent, the Administrative Proce-
dure Act and National Labor Relations Act require that
Board decisions be supported by substantial evidence-
agency proceedings may not be trials by inferences; that
in the instant case Respondent refused to produce the
documents because the subpoena was nothing more than
a fishing expedition by the General Counsel in an at-
tempt to conduct a belated investigation and to establish
the General Counsel 's prima facie case, and that Re-
spondent is justified in resisting these efforts until a Fed-
eral district court has determined that the Board was en-
titled to them . Moreover , it is contended by Respondent
that the General Counsel elicited secondary evidence on
the very issues it is demanding that Dasal be precluded
from presenting evidence , and to permit the General
Counsel to adduce such evidence and deny the same
right to Respondent is a fundamental violation of due
process ; that the General Counsel should not be allowed
to benefit from its refusal to seek enforcement of the sub-
poena nor should Dasal be penalized for asserting its
constitutional and statutory rights , and therefore no ad-
verse inferences should be drawn from Respondent's re-
fusal to produce subpoenaed documents without a court
order. s
I am in agreement that Board authority for the re-
quested action by counsel for the General Counsel is
clear and well established . Regarding admission of sec-
ondary evidence on the issues here involved, see Bannon
Mills, 146 NLRB 611, 633-634 (1964); American Art In-
dustries, 166 NLRB 943, 951-953 (1967). With respect to
exclusion of evidence or testimony offered by Respond-
ent on the issues, see Bannon Mills and America Art,
supra; Auto Workers v. NLRB, 459 F .2d 1329, 1388 (D.C.
Cir. 1972), sometimes cited below as "Gyrodyne Co." Re-
garding precluding cross-examination of the General
Counsel 's witnesses concerning the matter , see Midland
National Life Insurance Co., 244 NLRB 3 (1979); and
drawing unfavorable inferences on the issue against Re-
spondent, Gyrodyne Co., supra, and also see Federal
Rules of Civil Procedure 37(b).e
5 In its defense Respondent did not call any witnesses to testify, but
relied on several motions made during the trial and at the end of the
General Counsel 's case The General Counsel called Vice President Ma-
thias Dasal as her witness under Sec. 611(c) of the Federal Rules and, on
the completion of her questions on direct examination , counsel for Re-
spondent then made his inquiries.
The adverse inference rule is based on the belief that a party will
introduce all relevant evidence which is favorable to him , and even on
his own initiation Gyrodyne Co., supra
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent further contends that the General Coun-
sel's failure to seek Federal court enforcement of the sub-
poena duces tecum demanding Respondent to produce
certain documentary evidence is an invasion of its statu-
tory rights and violates due process. I also find this argu-
ment to be without merit. The General Counsel may not
be forced to seek court enforcement of a validly issued
subpoena at the whim of the party that refuses to comply
with it. Hedison Mfg. Co. v. NLRB, 643 F.2d 32, 34 (1st
Cir. 1981); Auto Workers v. NLRB, supra.?
B. Statement of the Case
Respondent contends that it did not unlawfully refuse
to hire a majority of Daake's employees when it took
over the Lemay and Walton Caring Centers; that Char-
lotte Sczpanski, the individual involved in the 8(a)(1)
statements, was not an agent and/or supervisor of Re-
spondent at the times the statements were made; and, fi-
nally, that it is not a successor employer within the
meaning of NLRB v. Burns Security Services, 406 U.S.
272 (1972).
Counsel for the General Counsel argues that the facts
presented in this case establish that Charlotte Sczpanski,
at all times material herein, was a supervisor and/or an
agent of Respondent, and who made undenied statements
in violation of Section 8(a)(1) of the Act; that Respond-
ent's failure to hire a majority of the predecessor's em-
ployees (Daake) at the two facilities involved in these
proceedings was motivated by antiunion animus and to
avoid unionization and having to bargain with the
Charging Party; and that Respondent is a successor em-
ployer under Burns and its progeny of cases, violating
Section 8(a)(5) by its admitted failure and refusal to rec-
ognize and bargain with the Charging Party as the exclu-
sive collective-bargaining representative in two "all em-
ployee" bargaining units.
It should also be initially noted that several aspects of
this case are not in actual controversy-Respondent
admits it is an employer within the meaning of Section
2(2), (6), and (7) of the Act; that after May 1, Sczpanski
was a supervisor within the meaning of Section 2(11) of
the Act; that it did not offer employment, nor has it of-
fered employment, to Daake's former employees named
in paragraph 6A of the complaint, as amended; and that
the Union, on April 26, requested recognition and bar-
gaining and which request was denied by Respondent.
On April 20 Mathias and Nelda Dasal, owners of
Dasal Caring Centers , Inc., signed an agreement with
John W. Daake, president of Walton Homes, Inc., re-
ferred to sometimes as Daake, to purchase certain assets
of the Walton Homes, Inc. These assets included the real
property, buildings, fixtures, equipment, and certain spec-
ified personalty of three intermediate care facilities in St.
Louis-the Walton Home located at 4527 Forest Park,
Rockhill Rest Home located at 9803 Manchester Road
r Several of the items which may fall within the adverse inferences re-
quested and the precluding of cross-examination were matters solicited
through witnesses for the General Counsel (largely undisputed events)
and in such instances no adverse inferences are necessary nor are any
drawn Generally, whether to draw an adverse inference from failure of a
party to produce relevant evidence within his control, is a matter of dis-
cretion for the factfinder . Auto Workers v. NLRB, supra.
(not directly involved herein), and the Lemay Nursing
Home located at 1204 Telegraph Road. Dasal did not,
however, acquire the accounts receivable of Walton
Homes. The sales agreement provided, inter alia, that
Respondent was to commence operations effective 11:30
p.m., April 30, and Daake furnished to Dasal, prior to
the sale , copies of the collective -bargaining agreements
effective at the Lemay and Walton facilities. The sales
agreement also provided that the purchaser (Respondent)
did not have any responsibilities relating to Daake's col-
lective-bargaining relationship with the Union, and Re-
spondent assumed no liability to retain any of Daake's
present employees."
By letter dated April 23, James Daake notified Local
50 Business Representatives Boneva Brown and Joyce
Scaife that the Lemay and Walton Nursing Homes had
been sold to Respondent.9 Daake and Local 50 repre-
sentatives then met on April 26 and on this occasion dis-
cussed the sale here in question. Also, on April 26, the
Union sent a mailgram to Respondent advising it of the
current bargaining agreement at each Home and with
hopes that the employees of Daake would be retained
(G.C. Exh. 10). On April 27, Respondent responded to
the Union 's communication denying it was a successor,
refusing to recognize and bargain with the Charging
Party as representative of its employees, and noting the
possibility of legal action if there was any violence or
threats by the Charging Party (R. Exh. 4).
Beginning about April 24, Respondent accepted em-
ployment applications from the three division of employ-
ment security offices located near the Dasal Care Cen-
ters, and employees of the Daake Company were inter-
viewed on April 27 at the three facilities here in ques-
tion-it appears that John Daake would not permit Re-
spondent to interview his employees before this time as
he first wanted to notify the employees of the sale. Ma-
thias Dasal testified that a total of approximately 560 ap-
plicants applied for jobs at the three facilities, and that
there were 29 positions available at both the Walton and
Lemay facilities and 24 positions at the Rockhill facility.
It appears from this record that all applicants were
questioned in general about the following: Transporta-
tion, uniforms, salary, the number of patients they could
care for, their job expectations, and philosophy of nurs-
ing. None of the applicants were questioned at this time
about their union membership or union activities, and
that all applicants-both Daake employees and outside
applicants-were considered for employment at each fa-
cility. It appears that Mathias Dasal interviewed the em-
ployees at the Lemay facility and made the hiring deci-
8 Walton Homes, Inc. owned three other intermediate care facilities,
which were not involved in the sale Under the sale agreement, Dasal
was not permitted to use the name "The Walton Home" and, after April
30, the names of the three facilities were changed to Walton Caring
Center , Rockhill Caring Center , and Lemay Caring Center
8 Local 50 represented separate units of employees at Walton and
Lemay Nursing Homes. Rockhill was a third facility purchased by Re-
spondent from Daake, but Rockhill was nonunion under Make and
therefore its hiring practices at Rockhill were not the subject of the in-
stant complaint Respondent operates one other caring center, Jennings
Caring Center, purchased earlier and which had at all times been non-
union. See G.C Exhs . 9a, b, and c
LEMAY CARING CENTER
sions for this facility; that Bobby Frank Reed Jr., admin-
istrator at Respondent's Jennings Caring Center, inter-
viewed the employees at the Walton Center and made
hiring decisions for this facility; and that Wanita Hoeck-
elman interviewed the employees at the Rockhill Center
and made hiring decisions for this facility; and that
Judith Thorpe, director of nurses at Fairways Caring
Center, advised Dasal, Reed, and Hoeckelman about the
hiring of the nursing staff.
Dasal testified that on April 26 he offered employment
to Bobby Reed and Charlotte Sczpanski to be effective
at 11 p.m. on April 30, but the other people elected for
employment were not notified of these decisions until
after 11 p.m. on April 30, and that after completing the
hiring decisions for the three facilities on Monday, April
30, he then requested his secretary, along with Judith
Thorpe, Bobby Reed, Wanita Hoeckelman, and Char-
lotte Sczpanski to contact the job applicants and convey
his offer of employment at a specified salary.
It appears that Reed then conveyed the offer of em-
ployment to employees of the Daake Company at the
Walton facility; that Sczpanski conveyed offers of em-
ployment to employees of the Daake Company at the
Lemay facility; that Wanita Hoeckelman conveyed offers
of employment to the Daake Company employees at the
Rockhill facility; and that his secretary and Judith
Thorpe conveyed offers of employment to the "outside"
job applicants, and Dasal stated that none of these indi-
viduals, including Sczpanski, had any authority to
change the terms of the job offer.
It further appears that at the Walton Center Respond-
ent offered employment to four Daake Company em-
ployees-Jeanne Marshall (CMT), Margaret Irwin
(CMT), Freddie Garvin (LPN), and Lucy Gordon (for-
merly the Walton administrator but hired as a liaison be-
tween Respondent and the Department of Mental
Health)-and that at the Lemay Center Respondent of-
fered employment to nine Daake Company employees-
Terry Ervin (CMT), Ron Lindsey (CNA), Pam Winkle
(CNA), Estelle Meyers (CNA), Judith Poe (CMT), Shir-
ley Menendez (to become food service supervisor), Mary
Huebner (activity director/social service designee), Dana
Williams (LPN), and Charlotte Sczpanski (formerly as-
sistant administrator but hired by Dasal as the facility ad-
ministrator). At the (nonunion) Rockhill Center seven or
eight of the Daake Company employees were offered
employment by Respondent. All employees, including
administrators, assumed their jobs with Respondent at 11
p.m. on April 30-that Bobby Reed, formerly administra-
tor at Jennings Caring Center, a facility of Respondent,
became administrator at the Walton Caring Center;
Sczpanski became administrator of the Lemay Caring
Center; and Wanita Hoeckelman, a charge nurse at Fair-
ways Caring Center, became administrator at Rockhill
Caring Center." o
10 Respondent, as aforestated , owns and operates Jennings Caring
Center in addition to Walton , Lemay , and Rockhill and Dasal provides
data processing and other personnel functions and consulting services
(registered nurse , pharmaceutical , dietary, rehabilitation , and environmen-
tal salutation consultation ) to the four facilities and also provides the four
facilities with a liaison to the Department of Mental Health
65
There is testimony by Dasal to the effect that follow-
ing the takeover on April 30, he instituted substantial
changes at Walton, Lemay, and Rockhill to conform the
operations of these caring centers to Respondent 's orga-
nizational structure , and that the changes made after
April 30 include improvements to the physical structure,
remodeling the interior to some extent, purchasing equip-
ment and furniture , establishing patient care procedures,
creating job positions, adding job functions, and chang-
ing employee wages and benefits-specifically, Respond-
ent built kitchen facilities, business offices, and nurses sta-
tions at each of the three caring centers, laid new floor-
ing, erected some new walls , consolidated dining facili-
ties, equipped the kitchens with automatic gas shutoffs
and fire suppression systems, furnished dining room fa-
cilities, remodeled laundry facilities, and instituted a
medication distribution system and patient feeding system
different from that of the Daake Company. The positions
of food service supervisor, food service worker, and
cook were added at Walton, Lemay, and Rockhill.
Dasal also testified that after April 30 the administra-
tors of the Centers were given responsibility for negotiat-
ing contracts, preparing budgets, making purchases, and
handling personnel matters and any problems which
arose at their facility, and that the director of nurses
became responsible for dispensing medication and the
charge CMT was given additional supervisory and ad-
ministrative authority. He further stated that the identity
and type of patient cared for at the three facilities
changed after April 30; that some of the patients cared
for by the Daake Company left, and unlike Walton
Homes, Inc. Respondent accepted private patients as
well as mental health patients.I I
C. The Status of Sczpanski
One of the crucial issues for determination in this case
is whether Charlotte Sczpanski was a supervisor and/or
agent of Respondent on April 30.
Prior to the sale of the two nursing centers here in
question, Sczpanski was the assistant administrator at the
Lemay facility, but about April 26 after interviewing
Sczpanski, Dasal hired her as his acting administrator
(Sczpanski was hired as an acting administrator rather
than as an administrator because she had not passed the
test to be licensed as an administrator). After Sczpanski
had been advised that she would be hired by Respond-
I I The Walton facility is a 3-story building with no elevators and a 40-
bed capacity Prior to the sale in April , the Walton facility had between
19 and 25 employees , of which 16 to 19 were in the bargaining unit,
which included certified medical technicians (CMTs), certified nurses
aides (CNAs), and housekeepers . Lucy Gardener was the administrator
and Freddie Garvin was the assistant administrator at the Walton facility.
The Walton facility operated on three 8-hour shifts with a CMT on each
shift. In 1982, Daake eliminated its in-house kitchen at the Walton facili-
ty, and provided meals to patients through a "meals on wheels " program
The Lemay facility is also an intermediate care facility with a 38-bed ca-
pacity. The building is two stones, and at the time of sale, there were
about 30 or more patients In April, there were approximately 24 employ-
ees at this facility working three 8-hour shifts Prior to the sale, Barbara
Rickert was the administrator , Sczpanski was the assistant administrator,
and Dana Williams was the director of nursing Sczpanski , as assistant ad-
ministrator, had the authority and power to discipline and hire and fire
employees at Lemay.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, she then commenced distributing to (Daake) employ-
ees at the Lemay facility job applications, which applica-
tions were to be completed and returned to Dasal, and
which she told the employees to do. On April 26 Re-
spondent also sent letters to the families of patients at the
Lemay facility advising those interested individuals that
Sczpanski would be the administrator. 12
This record also shows that Sczpanski then had group
meetings with employees , pursuant to Dasal 's direction,
telling the employees that some of them had been hired
and others had not, that there would be changes in
wages and other conditions of employment, and answer-
ing employees ' questions regarding operations under Re-
spondent . Sczpanski proceeded to have individual meet-
ings with employees Poe and Furgerson and a telephone
conversation with Rozgowski.
Counsel for Dasal contends that prior to 11 p.m. on
April 30, Sczpanski performed no functions for Respond-
ent-that she did not become an employee or supervisor
for Dasal until 11 p.m. on April 30.
The General Counsel argues that notwithstanding the
fact that Sczpanski may have been in the employ of
Daake until the time in question , she also had, during
this period, responsibilities and duties on behalf of Re-
spondent. The reply in part to this argument by counsel
for Dasal is as follows:
MR. TocKMAN: Now on the question of her
status as an agent , the Board has in a number of
cases and so have you, Your Honor, in a case dealt
with the question of the status of a person who's a
hold over from the prior owner to the successor.
And I think as carefully looked at the pre-acquisi-
tion of persons who are held over to see whether
they are an agent and, if so, what their authorities
are and whether or not they have exceeded them.
So the fact that a person may stay over from the
prior owner and go to work for the new owner
does not give that person the full gamut of the posi-
tions they get when they actually take them. In the
pre-acquisition period, the law of agency as applied
by the Board has been to see whether or not a
person who did some acts was authorized to do the
acts that are complained of.
Counsel for Respondent further argues that the factor
of apparent authority is missing since the employees
could not have reasonably believed that Sczpanski was
speaking on behalf of Dasal-that at the time the 8(a)(1)
statements were allegedly made, employees did not know
that Dasal had hired Sczpanski to be the administrator
and, furthermore , Sczpanski was a supervisor (and agent)
of Walton Homes or Daake at the time she allegedly
made the statements in question . Moreover, if Sczpanski
told employees that after she became administrator she
would hire them on the condition that they obtained a
union withdrawal card, she was then obviously referring
to conditions of employment she alone was imposing and
reflecting her views and those of her present employer,
Walton Homes, and that the more likely reason for the
11 G.C Exh. 13
alleged statements is evidenced by Sczpanski' s explana-
tion to a Daake employee that Daake sold the facilities
because of "the union." Thus, according to Respondent's
counsel , employees would reasonably have believed that
Sczpanski was expressing her own opinions and those of
her present employer-Walton Homes-and not the
views of Dasal . It is also contended that even if it is con-
cluded that Sczpanski acted as an agent for Dasal, the
issue becomes the type of agency created, and the facts
show that Sczpanski was merely a special agent , and the
distinction between a general agent and a special agent
such as Sczpanski is that a special agent cannot bind its
principal for unauthorized acts.
As indicated previously herein, Sczpanski was hired
by Respondent on April 26 to continue working in an
analogous position to the one that she held before at the
Lemay Center. Respondent then notified the families of
residents on April 26 that Sczpanski would be serving as
administrator , and some of the Daake employees were
also aware that Sczpanski would be working for Re-
spondent.' 3 She assisted Respondent in the distribution
of employment applications to Daake's employees at
Lemay, and Dasal even admits authorizing Sczpanski to
contact the Daake employees on his behalf regarding
which ones had been hired and under what terms and
conditions they were hired. Moreover, on April 30,
Sczpanski conducted meetings with employees of Daake
in groups, as well as individually, indicating Respond-
ent's plans for the future regarding wages, hours, and
terms and conditions of employment.
The standard for establishing agency for the purpose
of Section 2(13) of the Act is whether the individual had
been placed in such a position by management that em-
ployees could reasonably believe that the individual
spoke for management, 14 and, of course, it is irrelevant
whether Respondent's management directed the supervi-
sors and/or agents to make statements violative of Sec-
tion 8(a)(1) because such unlawful conduct would be at-
tributable to Respondent in any event without regard to
whether it was pursuant to a specific direction. More-
over, it is also well established that in finding agency it is
not necessary to find direct evidence that the activities
were actually authorized or subsequently ratified. An
agency status may be inferred from the circumstances.
Nor is it dispositive of the agency issue that Sczpanski
had been officially placed on the payroll of Respondent
as of April 30, because nonemployees can be agents
within the meaning of Section 2(13). Cagle's Inc., 234
NLRB 1148 (1978).
As pointed out, when an employer, like Respondent
here, chooses a worker or supervisor as its agent to com-
municate its antiunion position to the employees and
places such person in a position identifying him with
management so that the employees would reasonably un-
derstand that he or she speaks for management, Re-
18 Jacquelyn Furgerson credibly testified that several days prior to
April 30, she had seen a letter from Dasal to a relative of a resident of
Lemay stating that Respondent was taking over the facility and that
Sczpanski would be the new administrator . See G.C. Exh. 13.
1' See Limestone Apparel Corp., 255 NLRB 722, 733 (1981 ), enfd. 705
F.2d 799 (6th Cir 1982)
LEMAY CARING CENTER
spondent cannot then escape responsibility for his con-
duct in carrying out its antiunion campaign.
In the final analysis, Dasal admitted authorizing
Sczpanski to contact employees regarding the hiring de-
cisions at Lemay, and as noted , Sczpanski had meetings
with employees indicating Respondent's plans for the
future, and under these circumstances the employees had
reasonably cause to believe that Sczpanski was speaking
for Respondent. Clearly, Sczpanski on April 30 during
her conversations with Poe, Furgerson, and Rozgowski
and other employees was acting as an agent within the
meaning of Section 2(13) of the Act. Finally, a fording
that Sczpanski was an agent of Respondent becomes im-
perative in view of Respondent's failure to repudiate
Sczpanski's activities and actions, or to inform the em-
ployees that Sczpanski at that time was not acting on Re-
spondent's behalf. 15
D. The 8(a)(1) Allegations
Jacquelyn Furgerson was a certified medication tech-
nician working at the Lemay facility for Daake on the 3
to 11 p.m. shift. Furgerson was also a member of the
Union and at one time shop steward and also on the bar-
gaining committee. She had filled out an employment ap-
plication for Respondent and was interviewed by Dasal
on April 27.
It appears that in the late afternoon of April 30-
around 4:15 p.m.-Furgerson had an individual conversa-
tion with Sczpanski in the kitchen of the Lemay facility.
Furgerson testified that on this occasion she first noticed
and observed that Sczpanski was crying, but she told
Sczpanski that if she was crying for Furgerson because
she was going to tell her she did not have a job, not to
waste the tears on her. Furgerson stated that Sczpanski
then went on to tell her that she was not one of the em-
ployees who was retained by Dasal. Furgerson then
asked, "Was it something I did, was it something about
my job, one of my duties I didn't do?" Sczpanski then
said, "No, Mr. Dasal told her that he had a gut feeling
about you." Sczpanski said, "I told him that you were
very qualified, that you were a good CMT, that you
were a very responsible person, but he still did not want
to keep you. I will tell you though, that if I'm still ad-
ministrator here next week, if you'll bring an application
in and you get a Union withdrawal card, that I'll prom-
ise you your job back." During Furgerson's conversation
with Sczpanski, it was obvious that Sczpanski was speak-
ing on behalf of Dasal, not on behalf of Daake. Furger-
son then informed Sczpanski that she would not "belit-
tle" herself by filing another application-one should
have been sufficient.
Judith Poe worked at the Lemay facility for Daake as
a CMT and was on the 7 to 3 p.m. shift. She was also a
member of the Union, and was interviewed for employ-
ment by Dasal on April 27 after filing her application.
Poe testified that during the afternoon of April 30-
around 2:30-she had a conversation with Sczpanski, and
in which Sczpanski stated that Dasal wanted to hire her,
but she would have to take a cut in pay to $3.35 per
hour even though she would probably get a wage raise
15 See Wolverine World Wtde, Inc., 243 NLRB 425, 432 (1979).
67
in about 2 months . Sczpanski also told Poe that she
would not be working the 7 to 3 shift because ti e direc-
tor of nursing would be working this shift , but Poe
would work either the 3 to 11 or the 11 to 7 shift.
Sczpanski then went on to say, "I have to tell you this,
but I'm going to swear before God, the-President, and
the-Pope, that I didn't tell you this, but you have. If
you're going to take this job, you have to get a with-
drawal card from the Union." Sczpanski also told Poe
that she had told Dasal about her, that Poe was a good
worker and had been at the facility a long time, and that
Poe could "practically run the home" by herself. Poe
also testified that Sczpanski further told her that she did
not think the Nursing Centers here in question would
have ever been sold by Daake had it not been for the
Union, and that when she inquired about why she had
been given a job offer by Dasal, Sczpanski replied, "gut
feeling." Poe stated that she did not accept the job offer
by Respondent because of the reduction in wages.
Deborah Rozgowski worked for Daake at the Lemay
facility for several years, and in April was a CMT on the
11 p.m . to 7 a.m. shift . She was also a member of the
Union, on the negotiating committee , and shop steward.
Rozgowski received her application for employment
with Dasal from Sczpanski and was interviewed by
Dasal on April 27.
Rozgowski testified that she had a telephone conversa-
tion with Sczpanski at approximately 7 p.m. on April 30,
and stated that Sczpanski told her that the wages at the
Center would be changed-that CMT's would drop
down to $3.65 an hour and CNA's would drop down to
$3.45 rather than making $4.12 an hour plus 7 cents dif-
ferentiation. Sczpanski then proceeded by telling Roz-
gowski, "But at this time, I have to tell you you was not
one that was chosen to be kept, but if you come back
next week and have your withdrawal card from the
Union, I'll guarantee you a job if I have a position."
Rozgowski then asked Sczpanski how Dasal could not
use her today but could use her next week, and
Sczpanski repeated again, "All I can say is if you come
back next week, if you have your withdrawal card, I'll
guarantee you a job if I have a position." Rozgowski
then informed Sczpanski that she would not obtain a
withdrawal card and has not worked since April 30.
Terry Ervin , a union member for a month or so, was
one of the employees of Daake at the Lemay facility
who was retained by Respondent, and after April 30
continued to perform the same duties of a CMT that he
performed prior to April 30 on the 11 p.m. to 7 a.m.
shift. During the course of his work, Ervin was also able
to observe the performance of other employees at the
Lemay facility and in so doing observe that CNA's and
other employees were performing the same duties that
they had performed prior to the sale of the facility.
Ervin testified that on May 3, after completing his
shift, he had a conversation with Sczpanski near the ad-
ministrator's office. Sczpanski said, "You know we're no
longer union. . . . You know you're going to have to
cooperate with us. You're going to have to cooperate so
we can have some cooperation. . . . You know the
Union is a thing of the past." Ervin responded, "It is?"
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then Sczpanski said, "If we don't have cooperation, you
also will be a thing of the past." Sczpanski continued the
conversation by stating she understood that the Union
was going to picket on Mother's Day then questioned
Ervin whether he was going to cross the picket line and
report to work. Ervin replied that he would do what he
had to do depending on the situation and circumstances,
and that he was still in the Union and had not obtained a
withdrawal card.
Respondent argues that the statements and testimony
of Furgerson, Rozgowski, Poe, and Ervin attributed to
Sczpanski should be stricken because they were gratu-
itously made and not linked to the hiring process and
Sczpanski was not an agent of Respondent. At this time
it should be noted that Sczpanski did not testify at the
hearing, and as a result all the testimony regarding
Sczpanski's conversations with the employees in question
is uncontroverted.16
Moreover, Respondent, in its motion to strike, present-
ed no evidence nor any testimony from witnesses on
these matters which would require me to discredit the
testimony as related above. The testimony of the wit-
nesses for the General Counsel clearly indicates that the
statements by Sczpanski were linked to the overall hiring
decision of Dasal, that the statements also indicated to
employees the criteria used by Respondent in making its
hiring decisions, i.e., Dasal's "gut feeling" about employ-
ees in relation to their union activities. In the final analy-
sis, Sczpanski was telling employees that she participated
in the hiring decision, that she put in a "good word" for
various employees, and that she would have the power
in the next few days to hire employees if they would
come back with withdrawal cards. I am in agreement
that the only logical inference to be drawn from these
facts is that when Sczpanski received acknowledgment
that these employees and other employees of Daake
were no longer members of the Union or supporters of
the Union, she could then recommend to Dasal or, on
her own, effectuate their hire. Furthermore, these uncon-
troverted statements credibly attributed to Sczpanski
clearly indicate antiunion bias and/or hostility by Re-
spondent in selecting employees for hire. For these rea-
sons, Respondent's motion to strike is denied.
As pointed out, it is undisputed that after May 1,
Sczpanski was a supervisor within the meaning of Sec-
tion 8(a)(1) of the Act and that on May 2 or 3 she had a
conversation with employee Terry Ervin wherein she
told Ervin that "The Union was a thing of the past";
"Don't talk about the Union"; "If you talk about the
Union, you will be a thing of the past"; and then ques-
tioned Ervin several times regarding whether he would
cross the Charging Party's picket line.
Sczpanski's conversations with Ervin violated Section
8(a)(1) of the Act by interfering with employees' rights
to discuss unions and/or engage in concerted protected
activity, as well as interrogating an employee regarding
an employee's union activity. Moreover, it is axiomatic
that threatening an employee, either explicitly or implic-
itly, with discharge or other job action if that employee
1e I have earlier detailed herein the status of Sczpanski and in late
April have found her to be an agent of Dasal , as aforestated
engages in union and/or concerted activity , violative of
Section 8(a)(1) of the Act, and conjoining all the above
with the specific threat that his employment could be "a
thing of the past" if he continued his union support,
would reasonably have led Ervin to the belief that his
best interests demanded strict neutrality about unionism.
See Rossmore House, 269 NLRB 1176 (1984).
This record also establishes , as aforestated , that on
April 30 Sczpanski told Furgerson and Rozgowski that
although they were not hired by Respondent, "if they
got a withdrawal card from the Union," Sczpanski
would guarantee them a job if a position was available.
Sczpanski also emphasized the importance of nonunion
membership and/or nonunion sympathies and support as
a condition of employment by telling Judith Poe that al-
though she had been hired, Poe would have "to get a
withdrawal card from the Union" as a condition of con-
tinued employment.
Each of these statements violated Section 8(a)(1) by
conditioning continued employment on the withdrawal
from the Union, or abstaining from membership in
and/or activities on behalf of a union, and I so find.
E. Whether Respondent Unlawfully Refused to Hire
Predecessor Employees in Violation of Section 8(a)(3)
of the Act
The issue presented here is whether Respondent re-
fused to hire a majority of Daake's employees to avoid
union obligations and duties.
The General Counsel duly acknowledges that there
were some employees of Daake belonging to the Union
who were hired by Respondent as noted previously
herein, but points out that if an employer is making
hiring decisions motivated by antiunion considerations
not to hire a majority of the precedessor's employees in
its effort to avoid the bargaining obligations, then it is a
violation of the Act.
Counsel for Respondent argues that there is no evi-
dence to support the General Counsel's assertion that
Respondent refused to hire Daake employees to avoid in-
curring a bargaining obligation, and points to the testi-
mony of Mathias Dasal who stated that the fact Walton
and Lemay were unionized had no affect on his decision.
Furthermore , maintains Respondent , the General Coun-
sel did not establish a prima facie case that the selection
of employees was motivated by union animus.
Counsel for Respondent further points out that even
though Dasal knew that Local 50 represented employees
at the Walton and Lemay facilities, there is no evidence
that Respondent was aware of any applicant's union
membership or activity, and the uncontroverted facts
show that none of the applicants were questioned about
their union membership or activities during the inter-
viewing process. Rather, applicants were asked about
their salary requirements, means of transportation, uni-
forms , and their reasons for working in a nursing home,
and more significantly Terry Ervin, the only applicant
who mentioned that he was a union member during the
interview, was hired by Dasal. Thus, the General Coun-
sel failed to prove knowledge of union membership or
LEMAY CARING CENTER
activity, one of the essential elements of a prima facie
case.
Counsel for Respondent also maintains that the inter-
viewing procedure used at Walton and Lemay was iden-
tical to that used at Rockhill and Jennings, the nonunion
care facilities, and the criteria used to select all appli-
cants for hire were identical at all facilities-possession
of the requisite skills, licenses, and a philosophy of caring
compatible with that of Respondent, and points to the
testimony of Mathias Dasal to the effect that it is his phi-
losophy that patients should be treated with respect to
preserve their sense of self-respect and dignity and that
this philosophy is reflected in every aspect of caring-
from handling a patient's belongings to the treatment and
therapy of the patient himself. As a result, Dasal re-
quired that the successful applicant possess more than
just technical skills . Moreover, that Dasal 's decisions
about hiring Daake employees were also influenced by
the conditions he had seen when he walked through the
facilities during the sale negotiations-and in so doing
Dasal observed that the sanitary conditions at Walton,
Lemay, and Rockhill did not meet his standards, ob-
served some of the employees "sitting around," and sev-
eral of the patients being neglected. Furthermore, when
Dasal interviewed employees at the Lemay facility, he
also considered the sincerity of their responses and as it
related to his philosophy and the applicant's union mem-
bership or activity was not a factor.
In addition, maintains Respondent, there is nothing to
suggest that antiunion considerations were used to screen
out union members or activists, but on the contrary, this
record shows that Dasal offered employment to two em-
ployees (Judith Poe and Shirley Menendez) who were
characterized as "100 percent union" by Local 50 Busi-
ness Representative Boneva Brown, and this record also
shows that Dasal hired two Local 50 shop stewards
(Mary Huebner and Margaret Irvin).17
Counsel for Respondent also argues that the undis-
puted evidence in this record shows that Sczpanski did
not interview any of the applicants and had no input in
deciding who would be hired, and the record demon-
strates that Dasal never discussed unions or withdrawal
cards with Sczpanski. Moreover, that the General Coun-
sel has failed to explain-the probative value of any
statements made by Sczpanski about the motivation for
17 There is testimony in this record that Mary Huebner had obtained a
withdrawal card from the Union in late April because she was promoted
to a supervisory position for Daake as an activity director in social serv-
ice, and that this job is a nonunion position per the contract (see R. Exh
2) Huebner was later hired by Respondent in a supervisory capacity as
activity director at the Lemay Center, as aforestated Shirley Menendez
did not testify, but according to Union Representative Boneva Brown,
Menendez contacted her prior to April 30 and stated that she had to get
a withdrawal card from the Union or she would be without a job (Men-
endez was offered and accepted a job with Respondent ), and Brown tes-
tified that after this request was repeated several times a withdrawal card
was then issued to Menendez (see U Exh. 1) Counsel for Respondent
moved to strike the testimony of Brown and U Exh I as being hearsay,
arguing that Menendez would be the only proper witness to present such
evidence as the testimony of Brown was being offered to show "the fact
of the matter," and that the photocopies of U. Exh . 1 contain a different
signature and numbers as compared to the original, and counsel surmised
them to be forged. At the hearing I took Respondent's motion to strike
under advisement , and after careful consideration of all aspects in relation
thereto, I now grant Respondent's motion to strike
69
hiring decisions at the Walton facility because Sczpanski
never had any relationship, authority, or responsibility at
Walton, and the fact that similar statements were not
made to Daake employees or other applicants at Walton
and Rockhill strongly suggests that there is no relation-
ship between Sczpanski's alleged statements and the
hiring decisions. In sum, maintains Respondent, the Gen-
eral Counsel has failed to prove any link between
Sczpanski's alleged statements and the hiring decisions.
Accordingly, these statements cannot be used to show
the motive of those who actually made the hiring deci-
sions on behalf of Dasal.
The Board and courts have held that a successor em-
ployer is not obligated to hire any or all of the predeces-
sor's employees, and to establish a violation of the Act
under such circumstances, discriminatory motivation for
failure to hire must be proven. Blu-Fountain Manor, 270
NLRB 199 (1984).18
As also noted, a related principle is that if the General
Counsel establishes discriminatory motivation and a
prima facie case, Respondent then has an affirmative
duty to rebut that prima facie case and establish that not-
withstanding Respondent's antiunion motivation, the
predecessor's employees would not have been hired. t 9
Moreover, when all or most of the predecessor's em-
ployees are union members , as in this case , it is not nec-
essary to demonstrate that Respondent had knowledge of
each employee discriminatee's particular union activities
before Respondent took adverse action against him/her,
especially when Respondent's actions were part of a pat-
tern of reducing support for the Union. Houston Distribu-
tion Service, 227 NLRB 960 (1977).
In the final analysis, to determine whether Respond-
ent's conduct in refusing to hire the predecessor's em-
ployees violated Section 8(a)(3), it must be established
that there is substantial evidence of union animus; lack of
a convincing rationale for refusal to hire the predeces-
sor's employees; inconsistent hiring practices or overt
acts or conduct evidencing a discriminatory motive; as
well as a reasonable inference from the evidence that Re-
spondent conducted its staffing in a manner precluding
the predecessor's employees from being hired as a major-
ity of Respondent's overall work force to avoid the
Board's successorship doctrine. Houston Distribution Serv-
ice, supra.
As aforestated, Sczpanski's statements to several appli-
cants clearly indicate antiunion animus toward the prede-
cessor employees' membership in the Union and Re-
spondent's goals, and efforts in getting the Daake em-
to In Howard Johnson Co. v Hotel & Restaurant Employees, 417 U.S
249 (1974), the U S. Supreme Court in discussing a successor employer's
freedom of action in the hiring of employees, held that a successor em-
ployer was not obligated to hire any of the predecessor's employees, but
specifically cautioned that the successor "could not refuse to hire solely
because they were Union members or to avoid having to recognize the
Union." The Board has consistently interpreted both Howard Johnson and
Burns to this effect. See Kimbell Foods, 201 NLRB 933 (1973), enfd. 496
F.2d 117 (5th Cir. 1974); Macomb Block & Supply, 223 NLRB 1285
(1976), Mason City Dressed Beef, 231 NLRB 735 (1977), Love's Barbeque
Restaurant No. 62, 245 NLRB 78 (1979).
19 See Wright Line, 251 NLRB 1083 (1980)
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees to abandon the union and/or their prounion sen-
timents as a condition of employment.
On April 26 Respondent was aware that the Charging
Party wanted to continue representing employees at the
Walton and Lemay facilities. On April 27 Respondent
stated that it was not its intention to recognize and bar-
gain with the Union, and during the period April 27
through 30, it is quite apparent that Respondent went
through a process of evaluating which of the predeces-
sor's employees it would consider retaining.
As also indicated, Respondent attempts to divorce
itself from any evidence of unlawful antiunion animus, as
reflected by Sczpanski' s statements , by arguing that the
selection processes at the Walton and Lemay facilities
were separate , with Dasal making decisions for Lemay,
and Bobby Reed making decisions at Walton. However,
I am in agreement that Dasal 's testimony vacillated on
the issue of whether he participated with Reed in making
a determination regarding hiring at the Walton and
Lemay facilities. I am in further agreement that it is un-
realistic to believe that an individual , such as Sczpanski,
who was scheduled to take over as an admitted supervi-
sor on May 1, would not be allowed to participate in any
way in the decision regarding which individuals would be
working with her, and especially individuals she had the
opportunity to work with over a considerable period of
time.
The clear implication of Sczpanski's remarks that an-
tiunion sympathies were a condition of employment
early translates into the employees ' belief that Dasal ex-
pected antiunion conduct or attitudes, and further carries
an equally unsubtle implication that prounion employees
would find their employment in jeopardy. Moreover, as
further pointed out, Sczpanski' s statements to Furgerson
and Rozgowski that if they withdrew from the Union
and put in second applications, they would then have
employment if positions were available, certainly indi-
cates that the hiring process was not completed and was
ongoing. While admittedly neither Reed nor Dasal asked
questions about the Union during their interviews with
the predecessor's employees, Sczpanski's statements,
along with the knowledge by Dasal that Daake's em-
ployees were represented by a union, clearly indicate
that quite a number of employees of the predecessor,
who were union members, were not hired because of
their union affiliation.
Finally, as more detailed in the argument by the Gen-
eral Counsel, the evidence of antiunion motivation is
quite obvious in that Respondent has continued to refuse
to hire certain employees of the predecessor , and has re-
fused to furnish records pursuant to a valid subpoena.zo
20 Due to the failure of Respondent to comply with certain paragraphs
of the subpoena , as aforestated, I have drawn the adverse inference that
the files , applications , and/or the employment records of outside employ-
ees hired by Respondent would reflect that such employees are less quali-
fied than the applicant employees of Daake who were not hired , and also
such people did not meet the standards supposedly set by Dasal for the
hiring of employees . There is also an adverse inference that the records
and files here in question would have demonstrated that Sczpanski direct-
ly participated in the hiring decisions . Moreover , Sczpanski's antiunion
statements attributed to her on April 30 at the Lemay facility amply indi-
cate and demonstrate the overall and collective antiunion feelings of Re-
spondent and which were carried over by Reed in his hiring at Walton
As further pointed out, Respondent's failure to articu-
late any definite standard by which employees were
evaluated for selection also raises the suspicion that Re-
spondent 's true motivation was discriminatory . Sczpanski
told at least two employees they were not hired because
of Dasal 's "gut feelings" about them . Dasal testified he
did not hire Corlotta Malady because she was on medi-
cal leave. However, Malady testified that she filed an ap-
plication, attended the interview, had been working at
Lemay prior to the interview, and did not indicate to
Dasal that she would be taking any immediate medical
leave, but would have her hernia taken care of later on-
that it was not "a pressing thing." Regarding Furgerson,
Dasal testified that one of the reasons she was not hired
was because of discrepancies in her applications. Howev-
er, at no time during the interview did Dasal confront
Furgerson with those discrepancies.
Dasal further testified that the basic reason certain
Daake employees were not hired at the Lemay facility
was because they were not "compatible to his way of
carrying on his operation," and that this was his standard
for hiring. Dasal , however, did not specify in any par-
ticular about how each predecessor employee not hired
was incompatible, and although Bobby Reed did not tes-
tify, Dasa] stated that Reed was familiar with Respond-
ent's "criteria" for hiring, so, therefore, it can only be in-
ferred that Reed applied the same criteria to the prede-
cessor's employees who had worked at the Walton facili-
ty during Reed's participation in the hiring process.
Finally, Respondent makes the argument that based on
Dasal's visits to the facilities, he was dissatisfied with the
quality of the activities and work being displayed by the
predecessor's employees and the conditions of the facili-
ties under those employees. However, at no time did he
confront any employees regarding such matters and he
retained several of the predecessor's supervisors who
would have the ultimate responsibility of ensuring that
employees performed their work and that the facility
was cleaned. It is, of course, very difficult to evaluate
thoroughly Respondent's inconsistent hiring practices be-
cause of Respondent's refusal to fully comply with the
subpoena . However, I am in agreement that it is reasona-
ble to infer there were inconsistencies in hiring, when,
for example, Respondent chose to keep, especially at the
Lemay facility, individuals who had worked for the
predecessor for short periods of time and would not
have strong union sentiments, rather than employees
with 2 or more years ' experience.
The evidence in this case clearly established that Re-
spondent was aware that the predecessor's employees
were members of the Union as a condition of employ-
ment; that the Union was going to protect its employees'
interests; and that Respondent through the undenied
statements attributed to Sczpanski was unlawfully moti-
vated in not selecting the predecessor's employees. A
prima facie case of an 8(a)(3) refusal to hire the predeces-
sor's employees has been established and Respondent
presented no evidence effectively rebutting the General
Counsel's prima facie case.
LEMAY CARING CENTER
F. Whether Respondent is a Successor Employer and
has Bargaining Obligations
The General Counsel contends that Dasal is a succes-
sor to Walton Homes and therefore, under the successor-
ship doctrine, is obligated to recognize and bargain with
Local 50.
Counsel for Respondent points out that in NLRB v.
Burns Security Services, 406 U.S. 272, 280 (1972), the Su-
preme Court observed that a necessary predicate for im-
posing a duty to recognize and bargain with the bargain-
ing representative of the seller's employees is the contin-
ued appropriateness of the unit and retention of the em-
ployees of the predecessor; that subsequent Court and
Board decisions have relied on this language in finding
that a new employer is not a successor because the conti-
nuity of the bargaining unit was not maintained, and that
the General Counsel has the burden of showing that the
two separate bargaining units here involved are still ap-
propriate.
Counsel for Respondent also maintains that an analysis
of the record shows that these units are no longer appro-
priate due to the changes in operational structure and
procedures instituted by Respondent-that Dasal's cen-
tral business office is in St. Charles, Missouri, and the
four caring facilities or centers, which constitute Re-
spondent, are located in St. Louis and are centrally con-
trolled; that all employees have similar skills, work clas-
sifications, and working conditions; that the formulated
labor relations policies and methods of operations apply
to all four facilities; that all wages and benefits are set by
Dasal and the wages of employees at all facilities are
similar; and that the staffing levels of the facilities are
similar . Moreover, Respondent performs all data process-
ing functions and also provides personnel functions and
consulting services to each of the facilities (e.g., regis-
tered nurse, dietician, pharmaceutical); that this record
also shows there have been temporary and permanent
transfers of employees between facilities and since April
30 there have been five or six such transfers; and that
based on the above factors, it is clear that the separate
bargaining units at the Walton and Lemay facilities are
no longer appropriate and the only appropriate unit is
one consisting of all four facilities-that Dasal has added
new job classifications (e.g., food service worker, cook)
and has given supervisory authority to former bargaining
unit classifications (e.g., charge CMT and activity
director/social service designee); and that the additional
classifications and change duties militate against a finding
of the continued appropriateness of the bargaining unit.
It is further argued by Respondent that the General
Counsel has also failed to prove that there has been con-
tinuity in the employing industry, and whether such con-
tinuity exists depends on the following factors-the con-
tinuity of the same business operations, the continuity of
the work force, similarity of supervisory personnel, simi-
larity of service, use of the same facility, similarity of
working conditions, and similarity of the methods of pro-
duction-and that in the instant case Dasal integrated the
facilities into its centralized health care facility operation;
that Dasal altered the wages, benefits, and other employ-
ment conditions to conform to those of the corporation;
that Respondent added new job classifications, changed
71
the number of employees, and added new responsibilities
to previously existing classifications; that Dasal also reor-
ganized the managerial hierarchy of the facilities by ex-
panding the number of midlevel management and super-
visory positions; and that none of the facility administra-
tors of the predecessor were retained by Respondent as
facility administrators.
Furthermore, maintains Respondent, substantial capital
improvements were made to the physical structure of the
three facilities, as aforestated. It is also maintained by
Respondent that Dasal altered patient care from the es-
sentially maintenance care provided by the predecessor
to that of a "caring center," and that Dasal also institut-
ed new procedures for feeding patients and dispensing
medication. Moreover, the number and identity of pa-
tients at the three facilities changed after April 30, and
Respondent also accepted private patients, whereas only
Department of Mental Health patients were cared for
prior to May 1.
Counsel for Respondent further points out that the
third criterion in determining the successorship issue is
the continuity of the work force-that is whether a ma-
jority of the new employer's work force were employed
by the former employer, and that since Burns the Board
has never found successor status absent a finding of this
majority. Counsel for Dasal maintains that the uncontro-
verted record evidence shows that a majority of Re-
spondent's work force at the Walton, Lemay, and Rock-
hill facilities were not employed by Daake-at Walton,
only 3 Daake employees (Margaret Irvin, Jeanne Mar-
shall, and Freddie Garvin) were employed in a work
force of approximately 29 employees. At Lemay, 8 em-
ployees (Charlotte Sczpanski, Dana Williams, Estelle
Meyers, Ron Lindsey, Pam Winkle, Terry Ervin, Shirley
Menendez, and Judith Poe) were employed (or offered
employment) in a work force of approximately 29 em-
ployees. At Rockhill, only 8 or 9 employees were em-
ployed in a work force of 24.
Moreover, argues Respondent, even if a successor em-
ployer, Respondent had no obligation to recognize and
bargain with Local 50 concerning the employees in the
Walton and Lemay bargaining units because of a good-
faith doubt based on objective considerations, and that
one such objective consideration supporting an employ-
er's withdrawal of recognition is statements made by
union representatives implying the Union's lack of major-
ity support, and in the instant case Local 50 President
William Stodghill acknowledged that Local 50 did not
represent a majority of employees.
Finally, it is the contention of Respondent that Dasal's
refusal to recognize Local 50 is also justified by Local
50's conduct toward employees of Dasal-that Local 50
has never expressed any interest in or willingness to rep-
resent the employees of Dasal at Walton, Lemay, and
Rockhill facilities, but rather it has repeatedly demanded
that Dasal "rehire" the Daake employees at the Walton
and Lemay facilities. Furthermore, the natural effect of
this demand would be for Dasal employees to lose their
jobs, and such a demand substantially conflicts with
Local 50's obligations to employees of Respondent and is
inimical to any bargaining relationship between Local 50
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Dasal . In addition , the Board has refused to require
an employer to recognize and bargain with a union when
the union has made threats of violence as did Local 50
and, at the very least , Local 50 should be required to
demonstrate that it represents a majority of Dasal em-
ployees (in an appropriate unit) in a Board election con-
ducted in an atmosphere free of Local 50's coercive tac-
tics and threats. 2 t
It is well settled that when one employer becomes the
successor to another, that employer is required by Sec-
tion 8(a)(5) of the Act to assume the duty to bargain
with the exclusive representative of the predecessor's
employees in an appropriate bargaining unit.
As the Board recently said , "In determining successor-
ship, the keynote is whether there is substantial continui-
ty of the employing industry ." Saks Fifth Avenue, 247
NLRB 1047 ( 1980). Analysis of this in turn requires con-
sideration both of the work done and the work force
doing it, and under Burns, supra , factors to be considered
include: (1) whether there is continuity in work force; (2)
whether there is continuity in the employing industry;
(3) whether there is a continuity in appropriateness of
unit; and (4) the impact of hiatus in operation. Respond-
ent, in the instant matter, appears to argue , as aforestat-
ed, that it is not a successor under Burns because (a) Re-
spondent did not hire , as a majority of its employees, the
predecessor 's employees ; (b) bargaining units alleged in
the complaints are inappropriate as they relate to Re-
spondent; 22 and (c) there have been material changes in
the operations at the Walton and Lemay facilities under
Respondent . Respondent admits there was no hiatus in
the operations of the facilities.
The complaint alleges two separate bargaining units of
employees.23
81 By mailgrams dated May 1, the president of Local 50, William
Stodghill, notified counsel for Respondent that Dasal had faded and re-
fused to rehire the predecessor employees to avoid bargaining, and de-
manded immediate recognition on the basis that the Union would have
represented a majority but for Respondent's unlawful conduct Stodghill
then went on to state that if the employees of the predecessor were not
rehired, he would assert their rights by all lawful means including picket-
ing, and which might entail a strike beginning on May 13. Under the cir-
cumstances here, I do not deem such mailgrams to imply the Union's
lack of majority, nor do these notifications contain any unlawful threats
or the instigation of any violence. The possible measures mentioned by
Stodghill are well recognized and established protected activity in situa-
tions of this kind, and the Union also notified Respondent that they re-
mained ready and willing to meet in an attempt to resolve these matters
peacefully. See G C. Exhs. 11 and 12.
'$ Respondent points out that the Board did not determine appropn-
ateness of either bargaining unit-the complaint states only that Local 50
was "designated" as the bargaining representative of the Walton unit, and
the Lemay unit was the result of a stipulation of the parties. Thus, there
has never been any conclusive determination that these units are appro-
priate.
ae The unit at Respondent's Walton facility is set forth as follows:
All employees of the Employer at 4527 Forest Park Blvd., St
Louis Missouri, EXCLUDING office clerical and professional em-
ployees, guards and supervisors as defined in the Act, as amended
The unit at Respondent's Lemay facility is set forth as follows.
All employees employed by the Employer at its 1204 Telegraph
Road, St Lows, Missouri facility, including certified medicine tech-
nicians , nursing assistants , activity employees, laundry, dietary and
housekeeping employees, EXCLUDING office clerical and profes-
sional employees , registered nurses, licensed practical nurses, guards
and supervisors as defined in the Act
At the hearing before me no credible evidence or testi-
mony was solicited by Respondent establishing that any
other unit or units were appropriate or that these sepa-
rate units were inappropriate , and no reliable evidence
was presented that there had been any substantial dimi-
nution in scope of unit , or organizational changes of Re-
spondent reflecting smaller units , materially different, or
showing a change in the employing industry.
Moreover , as indicted , the presumptions of majority
status applicable to the Walton and Lemay units under
the predecessor are equally applicable to Respondent,
unless overcome by the requisite evidence and degrees of
proof.
Concerning the Lemay unit , the presumption of con-
tinued majority status on April 30 was irrebuttable, be-
cause the certification year did not expire until May 2.
Concerning the Walton unit, Respondent again did not
rebut the presumption of continued majority status by
any clear, convincing, or cogent evidence . 24 In fact, no
evidence was presented to rebut the presumption of con-
tinued majority status , and this is especially so where Re-
spondent did not hire a number of Daake employees for
discriminatory reasons to avoid having a majority of the
predecessor's employees at the facilities , as I have found
previously . 25 Under these circumstances , there has been
a continuity in the appropriateness of the units, and I so
find.
Respondent argues that the employing entity has
changed as a result of its reopening of the kitchen and
dining areas , and by changing certain operational proce-
dures, as detailed earlier herein . I am in agreement that
notwithstanding those changes , the record is clear that
Respondent has continued to operate both the Walton
and Lemay facilities as intermediate care facilities, pro-
viding such care to the same patients, at the same facili-
ties, in basically the same manner as was performed by
the predecessor 's employees and with no interruption of
24 Since 1973 , the Union has been the designated collective -bargaining
representative of the Walton unit, and such recognition has been em-
bodied in successive collective-bargaining agreements , the most recent of
which is effective by its term for the period May 1, 1983, through April
30, 1985.
as A normal condition precedent underlining an obligation to bargain
is, of course, a finding that the union in question represented a majority
of the employees within the unit Clearly the Charging Party in the in-
stant case did not represent a majority of Respondent 's new hires when it
requested recognition-may such a majority then be presumed as a
matter of law? Several cases so hold on the theory that but for the suc-
cessor Employer 's discriminatory refusal to offer employment to the
predecessor's unit employees, the Union would have continued to enjoy
majority representative status within the unit , or that a bargaining order
is necessary to provide an adequate remedy for the 8(a)(3) violation
Certainly it was Respondent's discriminatory refusal to employ many
of the unit employees which renders it impossible at this time to deter-
mine whether , but for such discrimination, the Union would have repre-
sented a majority of Respondent's employees within the unit on the take-
over on April 30. However, a wrongdoer should not be permitted to rely
on its own wrongdoing to avoid the consequences therefor ; i e., Dasal
should not be permitted to avoid a bargaining order by preventing the
Union from securing majority representative status among its unit em-
ployees by refusing to hire applicants for employment within the unit be-
cause of their membership in or representation by the Union and cover-
age by the bargaining contract . Foodway of El Paso, supra. Moreover,
there is a presumption of majority for life of the contract , and in the in-
stant case bargaining contracts were in effect at both centers at the time
of the purchase by Dasal
LEMAY CARING CENTER
service or operation . Under these circumstances, the
mere fact that there has been a name change , some re-
modeling , a few administrative changes and designation,
and resumption of previous operations in the kitchen and
dining areas does not destroy the continuity of employer
industry that exists at the Walton and Lemay facilities.
Foodway of El Paso, supra at 936-937.
In the final analysis, Respondent did not change
patients/residents when it began operation after the sale,
nor did the type of operations , i.e., providing intermedi-
ate care , change after the sale ; Respondent also em-
ployed basically the same classifications of employees as
did Daake; Respondent is operating out of the same
physical facilities with much of the same equipment as
Daake , and, as aforestated , there was no interruption of
services to patients/residents at either the Walton or
Lemay facilities as a result of the sale.
For the reasons set forth above, the record establishes
that Respondent is a successor to Daake with a duty and
obligation to bargain with the Charging Party as the rep-
resentative of employees at the Walton facility unit and
the Lemay facility unit . Respondent admits that it re-
fused to recognize and bargain , on request, with the
Charging Party . Under these circumstances, I have
found that a violation of Section 8(a)(5) of the Act has
been established.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In view of Respondent's adoption of the discriminato-
ry policy of refusing to hire a majority of Daake's em-
ployees within the units, I recommend that Dasal be di-
rected to offer immediate employment to each of the em-
ployees named on the attached Appendix A and to posi-
tions they held on April 30, without prejudice to their
seniority and other rights and privileges, dismissing, if
necessary, all employees in the units hired by Dasal since
it commenced operations, and make them whole for any
losses they may have suffered as a result of the discrimi-
nation against them by paying to each a sum of money
equal to that which they would have earned in Dasal's
employ from the date Dasal commenced to operate the
Walton and Lemay Caring Centers less their net earn-
ings, if any, during the backpay period, computed in ac-
cordance with the formula set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), together with interest at the
rate of 6 percent per annum on the resultant backpay, in
accordance with the principle set forth in Isis Plumbing
Co., 138 NLRB 716 (1962).
In view of Dasal's refusal to bargain with the Union at
its request in violation of Section 8(a)(5) and (1) of the
Act, I recommend that Dasal be directed to bargain in
good faith with the Union at its request concerning the
wages, rates of pay, and hours and conditions of employ-
ment of the employees in the units.
CONCLUSIONS OF LAW
73
1. At all times material , Dasal Caring Center, Inc. and
Walton Homes, Inc. were employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The units set forth herein are appropriate ones for
the purposes of collective bargaining, and at all times
pertinent the Union has been the duly designated collec-
tive-bargaining representative of a majority of the em-
ployees within those units.
4. For the purposes of the Act, Dasal is a successor
employer to Walton Homes with respect to the caring
centers of Lemay and Walton.
5. By telling employees they would be hired if they
withdrew from the Union, by conditioning employment
on withdrawal from the Union, and by interrogating em-
ployees about their union activities, Respondent engaged
in unfair labor practices in violation of Section 8(a)(1) of
the Act.
6. By adopting the policy of refusing employment to
unit employees employed by Walton Homes because of
their membership in or representation by the Union and
their coverage by a contract between Daake and the
Union, Dasal engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
7. By failing and refusing to accede to the Union's re-
quests for recognition and bargaining as the exclusive
bargaining representative of a majority of the employees
in the units, Dasal engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act.
8. The above-described unfair labor practice is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed26
ORDER
The Respondent, Dasal Caring Centers, Inc., d/b/a
Lemay Caring Center, and Dasal Caring Centers, Inc.,
d/b/a Walton Caring Center, St. Louis, Missouri, its offi-
cers, agents , successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union
as the exclusive representative of the employees in the
previously described appropriate units with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment of the unit employ-
ees.
(b) Refusing to employ employees of its predecessor
within the units previously described because of their
membership in or representation by the Union and their
coverage by conracts between Daake and the Union.
26 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Telling employees they would be hired on their
withdrawal from the Union.
(d) Telling employees that their continued employment
depended on their withdrawal from the Union.
(e) Interrogating employees about their union activi-
ties.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain in good faith
with the Union as the exclusive representative of the em-
ployees in the previously described units with respect to
the rates of pay, wages , hours, and other working condi-
tions of the employees therein and, if understandings are
reached, embody such understandings in signed agree-
ments.
(b) Offer immediate employment to each of the em-
ployees within the previously described units as listed in
Appendix A.
(c) Make whole each of the employees described
above in the manner set forth in the remedy section of
the decision.
(d) Preserve and, on request, make available to author-
ized agents of the Board for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other
records necessary or useful in computing the amount of
backpay due or determining compliance with any provi-
sions hereof.
(e) Post at its Walton and Lemay Caring facilities,
copies of the attached notice marked "Appendix."27
27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Copies of the notice, on forms provided by the Regional
Director for Region 14, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al 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 A
Adams, Brenda Sue
Cockrell, Wanda
Darby, Cheryl
Duffen, Rozella
Duroso, Deborah
Furgerson, Jacquelyn
Robinson, Annette
Rothiff, Beulah
Smith, Bobbie Jean
Smith, Elizabeth
Wilson, Virginia
Donaldson, Alberta
Martin , Carol A.
Rogers, Sarah
Irby, Magnolia
Thompson, Edna
Cluck, Paula
Bishop, Edna
Hall, Lucinda
Hatcher, Ruth
Mitchell, Diane
Gries, Anita
Kiser, Dorothy
Lambert, Mary Ann
Malady, Corlotta
Martin, Elizabeth
Newton, Linda L.
Rozgowski, Debbie
Glass, Evelyn
Drennan, Marie