Wayne Convalescent Center, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 768 (N.L.R.B. 1971)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wayne Convalescent Center, Inc.,-successor to Clark's
Convalescent Home, Inc. andN g & Convales-
cent Home Employees, Division of Local 79 Service
Employees' International Union, AFL-CIO. Case
7-CA-8114
August 18, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On March 12, 1971, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, as modified below,
and hereby orders that Respondent, Wayne Conva-
lescent Center, Inc., 'successor I to Clark's Convales-
cent Home, Inc., Wayne, Michigan, its officers,
agents , successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order, as herein modified.
Substitute the attached notice for the Trial Exam-
iner's notice.
1 No exceptions having been taken to the Trial Examiner's conclusion
that the Respondent is the lawful successor to Clark's Convalescent
Home, Inc„ we adopt such conclusion and hereby find that Respondent
is a'successor employer within theimeani ng of the Act.
x We deem the last paragraph of the Trial Examiner's notice to be
unnecessary insofar as the protection of the employees' rights is concerned.
192 NLRB No. 128
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT,refuse to bargain collectively and
in good faith with Nursing & Convalescent Home
Employees, Division of Local 79, Service Employ-
ees' International Union, AFL-CIO, as the
exclusive collective-bargaining representative of
our employees in the following unit:
All nurses aides, orderlies , dietary , employ-
ees, kitchen employees , and laundry employ-
ees employed by the Employer at its nursing
home located at 34330 Van Born Road,
Wayne, Michigan, but excluding all licensed
practical nurses, office clerical employees,
professional and technical employees,
guards, and supervisors as defined by the
Act, and all other employees.
WE WILL upon request bargain collectively and
in good faith with the Union as the exclusive
collective-bargaining representative of our em-
ployees in the appropriate unit, and , if agreement
is reached, sign a contract with the Union.
WAYNE CONVALESCENT
CENTER, INC., SUCCESSOR
TO CLARK'S
CONVALESCENT HOME,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or -covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, 313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FuNKE, Trial Examiner: Upon a charge filed
August 3, 1970, by the above-named Union against Wayne
Convalescent Home, herein the Respondent, the General
Counsel issued complaint dated December 17, 1970,
alleging Respondent violated Section 8(axl) and (5) of the
Act.
WAYNE CONVALESCENT CENTER 769
The answer of the Respondent denied the commission of
any unfair labor practices.
This proceeding, with the General Counsel and Respon-
dent represented , was heard by me at Detroit, Michigan,
on February 23, 1971 . At the conclusion of the hearing
counsel for the General Counsel offered brief oral
argument and Respondent submitted a memorandum of
law on March 5.
Upon the entire record in this case and from my
observation - of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
1. TIM BUSINESS OF RESPONDENT
On ` or , about= May 8, 1970,1 Respondent , a Michigan
corporation, acquired a nursing home located at Wayne,
Michigan,, from Clark's. Convalescent Home , Inc. From
May 8 to the issuance of complaint , December 17,
Respondent derived a gross revenue from the operation of
the, home in excess of $70,000. Respondent purchased
materials from points outside the State of Michigan during
this period which were valued in excess of $70 ,000. The
parties stipulated that Respondent was, engaged in com-
merce within the meaning of the Act and I so find.
Born Road , Wayne, Michigan, but excluding all
licensed practical nurses, office clerical employees,
professional and technical employees , guards and
supervisors as defined by the Act, and all other
employees.
find the above unit appropriate for the purposes of
collective bargaining herein.
3. Bargaining with Clark's
Richard J . Fritz, attorney for Clark's in bargaining
negotiations with the Union , testified that he participated
in 9 or 10 meetings and that agreement on a contract was
reached on March 10. According - to Fritz the agreement
was not typed until about May 21 or 22 due to the "press
of business ." After the contract had been typed and
executed by the Union Fritz called Clark 's and talked to
Clio, the telephone operator. The date of the call was not
fixed but it was obviously later than May 22 . Fritz was
informed by Clio that the Clark's were not there . I find that
a binding contract was entered into between the Union
and Clark's on March I subject only to the ministerial act
of execution.
4. Bargaining with Respondent
IL LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III.' THE UNFAIR LABOR PRACTICES
1. The successorship
Until May 8 , Clark's Convalescent Home , Inc., herein
Clark's, operated a nursing home rendering convalescent
and nursing services, to the sick and elderly at Wayne. It
employed , about , 18.employees at the location engaged in
various, capacities . Patricia Harris, who was employed by
both Clark's and the, Respondent, testified that the type of
care was the same under both ownerships ,-and that the
patients were the, same ^ patients. Basically the same
employees were employed although some left and some
replacements were hired . Although the home was under
administration„of a "new administrator,,, Barbara Dempsey,
appointed by, Leon Kiff, Respondent''s owner, the same
"employing industry" wascontinued . For purposes of the
statute Respondent became a successor to Clark's.2
2. The appropriate unit
On July 10; 1969, ^ in- Case 7-RC-9430, the Union was
certified by the National Labor Relations Board as the
exclusive collective-bargaining representative for employ-
ees of Clark's in - a unit described as follows:
All nurses aides, orderlies , dietary employees, kitchen
employees, and laundry employees employed by the
Employer at its nursing home located at 34330 Van
1 Unless otherwise noted all dates refer to 1970.
2 Wiley v. Livingston, 376 U.S. 543, 551; N.LR.B. v. Hoppes Mfg. Co.,
170 F.2d 902,964 (CA. 6); Overnight Transportation Co. v. N.LRB., 372
Some time after the above conversation with Clio, Fritz
was informed by Frank Finned another home operator,
and by Clio that the home had been purchased -by a Mr..
Kiff. In his conversation with Cho, presumably on, the
telephone , Fritz told her that he was forwarding copies of
the collective-bargaining contract to her and she promised
they would be delivered to Kiff. The time was early June.
Later, in response to prompting from William Stodghill,
business manager of the Union, Fritz again called the
home and was told by Clio that the contracts were there
but that Kiff, who was 'a builder, was on the roof . Fritz told
her he wanted to talk about the contracts and that it was
important and was told Kiff would call back . Kiff did not
call back and that was Fritz's last contact with the case.
William Stodghill testified that agreement was reached
between the Union and Clark's' on March 5 and shortly
thereafter it was ratified by the employees . He notified
Fritz - of the ratification and received copies of the contract
on May 21 or 22. (Stodghill testified that he protested the
delay in receiving the copies several times .) After Stodghill
learned that the home had been sold to Kiff , which was,
some time in June , he' called the home and was told Kiff
was not in, was not transferred to anyone else, and
received no return call from Kiff. On July 15 the Union
sent the following letter to the' Respondent (G.C. Fxh. 3):
Gentlemen:
This letter constitutes notice and demand by the
Nursing and Convalescent Home Employees ' Division
of Local 79, Service Employees' International Union,
AFL-CIO that `you recognize said Union as for the
F.2d 765, 767-768 (CA. 4), cert. denied , No. 215, Oct. term 1967; NLRB.
v. Auto Ventshade, Inc., 276 F.2d 303 , 306-308 (CA. 5); N.LR.B Y.
McFarland ' 306 F.2d 219 (CA. 10); Maintenance, Inc., 148 NLRB 1299.
770, DECISIONS OF NATIONAL% LABOR RELATIONS BOARD
exclusive bargaining agent for bargaining unit employ-
ees -for which said Union is the certified - representative.
Further, that you execute , as the successor . Employer
thereto the collective bargaining agreement which has
been negotiated, ratified and agreed to by the Clark
Convalescent,Home, the predecessor Employer of said
employees and the afore -mentioned Union , March 15,
1970.
The letter was signed by Richard Corditz , president of the
Union, and the return receipt shows it was received by
someone -named Wanda 'Branham at Clark Convalescent
Home. (The letter was, directed to Wayne Convalescent
Home.) No reply was ever received and the Union filed the
unfair labor practice charge on August 3.
Stodghill ' testified that between the ratification meeting
and July 15 he, had several telephone conversations with
union ' members who ' inquired concerning the, contract.
Patricia Harris, called by counsel for the - General
Counsel, testified that she was employed by Clark's from
September 1969 - until April 1970 . At, the time she was
employed by Clark's ` she was told by the other employees
that they were represented by a union. In late Mayor early
June she was employed by Respondent as director of
nursing. Harris testified that she directed some 20 nurses in
their work , participated in hiring interviews with Sue Clark,
assistant administrator for Respondent ,3 had discharged
an employee on one occasion, and gave written evaluations
of other employees, including recommendations for wage
increases which were granted. I find ' Harris was - a
supervisor within the meaning of the Act .4
Her 'first " conversation with anyone concerning the
Union after her employment by Respondent occurred in
June or July`' and ` was with Barbara Dempsey, the
administrator,' Sue Clark, 'and Kiff . Kiff hid a document in
his hand which he asked her to read . He,then told her that
unions were for big corporations and not for convalescent
homes which handled people and stated , "I no have it, no
want it." At that meeting or a later one ' Kiff said he would
not have ,a union and ' would change , the operation to a
room-and-board ,Jacility.5 Dempsey said she , would-see her
lawyer and suggested there . might be a "revote ." There, ` is
no testimony from any witness that Kiff ever acknowl-
edged receipt of the contract or of the Union's letter of
July 15.
I find that . on A and after receipt ,of , the -contracts
Respondent refused to bargain in good faith, with the
Union.e ,A later witness, Barbara Dempsey, - fixes this date
as prior to June 19, before the expiration of the certifiea
3 Sue Clark had not been associated with the previous owners.
4 Joan Zamensky, a weekend supervisor, infra, testified that' Harris
assisted Sue Clark in hiring employees.
5 According to Harris, if the home became a room -and-board facility the
Respondent would not need nurses or nurses aid . Medical facilities would
not be provided , simply room and board . Harris would be out of a job if
such a change were made.
6 Donald ,. G. Schiff,, attorney for Respondent , testified; that he , represent-
ed Respondent in the , foreclosure proceedings in which title to the property
owned by Clark's was acquired by Respondent and that during the
proceedings he asked Nelson Shephard , attorney for Clark's, if there was
any union at Clark 's. He was told there was not. I do not think Respondent
can beheld responsible for a failure to bargain until ,knowledge of union
representation was obtained. Receipt ofvthe proposed ` contract would-put
any reasonable person on notice that the Union was claiming recognition
tion year. The refusal to reply to the Union's letter of July
15 underscores Respondent's attitude,
5. Respondent's doubt of the Union's majority
status and unilateral actions
Harris testified that at a time estimated as late June or
early July Respondent held a staff meeting of its employ-
ees.-Dempsey introduced herself, Sue Clark ,'and Harris to
the employees. The employees were told they, would
receive 2 days' sick leave with pay, 1 week's vacation after
1 year's employment,, and time and one-half for work on
holidays and after 48 hours. Under Clark's, according to
Harris, the employees , received time and one-half for
holidays and after 40 hours but no other benefits.?
With respect to ,this meeting , Joan Zamensky,,employed
as a diversional therapist and,, on weekends as a ` charge
aid,8 testified that prior to the meeting she had told, Sue'
Clark that the employees had voted in the,Union 1 year
earlier. , Respecting changes- in working conditions, she
testified that changes in job classificationshadbeen made
in July which conferred wage increases on certain
employees . She did corroborate Harris''testimony -as to the
other benefits and fixed the time as July.
As ' to the Union, Zamensky, stated that sometime in
May the employees lost interest in the Union because they
had no contract with it and that although she had called
Stodghill to notify him of the change in ownership she
never heard from him again.`
Both Harris and Zamensky testified that sometime
during this period „a petition was - drawn up by the
employees and that an employee named Turner (later fired
by Harris) drafted it. It ; was described by Harris as a
petition to get rid of the Union and by Zamensky as a
"revote petition . It-was mailed tothe regional office-of the
Board on August 14 by Zamensky-and there it apparently
disappeared. It was never acknowledged by the -Regional
Director , according to the testimony 'received in, this
proceeding. There is no testimony which would establish
how many employees' signed the petition.
Barbara Dempsey, administrator of`the home , was called
by Respondent-and testified that she first learned of the
Union aC the staff , (general) "meeting , 'in late June (she
thought June 19) when one of the employees asked what
had happened, to,the„imion contract and she said she did
not know.9,Althou ' all' calls" were routed to her she
received no calls from Stodghill but received a message
that Fritz had called.1e'On or after July 1511 she learned of
and demanding negotiations.
r Benefits under the unsigned union contract were not disclosed,
although Harris told the employees the benefits were -the same and they
would not have to pay union dues.
8 Zamensky had been the union steward.
9 This clearly contradicts - Harris' testimony that she was shown the
contract by Kiff in Dempsey', presence before the staff meeting. Although
Harris was called ° by the JGeneral Counsel and was later., fired by
Respondent - she displayed no hostility toward Respondent on the stand. I
credit tier against Dempsey.
10 on cross-examination she not only denied that Clara ' Clark (of
Clark's) had told her at the time of transfer that there was a union
representing the employees but told her she (Clark) did not , have a union
contract with anyone, ' a " statement that ' was technically correct.
11 The return receipt on the letter shows 7uly 20 as the date'df delivery.
WAYNE CONVALESCENT CENTER 771
the letter from the Union and later of the August 14
petition.
Respecting the possible change to a board-and-room
type, of home Dempsey stated that'the State of Michigan
had upgraded the criteria for residential care homes and
their, patients might be so classified. This reevaluation
study was not made until -after July 15, although it was the
subject of discussion before that date.
Lillian Sledd, a nurses aide who had been employed by
both Clark's and -the, Respondent, testified that after the
transfer of the home most of the employees did not see the
need for a union (she fixed the time for August). She signed
the petition dated August 14 because they (the employees)
had- not heard from the Union and decided they did not
want the Union. The generality of such testimony
precludes the making of any specific findings.
Conclusions
The chief and perhaps only difficulty with the case is the
inability of the witnesses to fix dates, thereby^precluding
establishing a chronology of, events so helpful in Section
8(a)(5) cases.12 The sequence found is based on reasonable
inference; there are no substantial contradictions in the
testimony as to what took place.
I credit the testimony of Shi,ff and Dempsey that they
were told there was no union contract outstanding at the
time of transfer and their inference from this that there was
no union representation was a reasonable one. Since Fritz
did not type the contracts until May, 22 and thenhad them
signed by Stodghill his testimony that he'did not send them
until early June is plausible. They were addressed not to
Respondent but to Clark's but they were not returned to
Fritz. While all that Clio told him when he first called to
inquire was that the Clarks were not there I think it a
reasonable assumption that the contracts were received
and their contents became known to Respondent . Reliance
need not, however, be placed on that assumption for after
Fritz learned that the ownership was changed he forward-
ed copies of the contract to Respondent and was informed
by Clio that they had been received. While this date is
another which unfortunately is not fixed it is reasonable to
suppose that it was between the middle and end of June.
At that time Respondent had to know not only that a
Union represented its employees but that there had been
bargaining negotiations culminating in a proposed and
possibly an agreed-upon contract. At this time an obliga-
tion was imposed upon the Respondent to, at the least,
inquire and investigate as to the Union's status and its
bargaining rights. Instead, however, Kiff told his supervi-
sors that he did not want a contract and would not have
one. (While Harris fixes the date of this meeting as either
June or July, she also fixed it as before the staff meeting,
which Dempsey thought was June 19.) At this time Kiff
could no longer claim ignorance of the Union's claim to
12 On cross-examination Dempsey offered to get certain dates from her
records but the offer was not accepted by the General Counsel.
18 The majority status of a union is not subject to attack, absent unusual
circumstances, during the certification year.
14 N.LB.B. v. Katz, 369 U.S. 736.
15 The situation with respect to this letter of August 14 is inexplicable
and no explanation was offered by the General Counsel . Shiff stated that he
was informed by a Board attorney that it had been received at the regional
representation . I find Respondent's failure to respond
coupled- with Kiff's statement , that he would not have a
union was a . ,breach of its obligation to bargain as a
successor to Clark's. Respondent's conduct in changing the
terms and working conditions , of its employees after the
bargaining obligation was incurred constituted a further
violation of Section 8(a)(5), as did its failure to reply to the
Union's letter of July 15.
Respondent's defense, to the extent that it rests upon
expressions of dissatisfaction with the Union, is insufficient
as a matter of law 13 Such exr pressions cannot be used to
establish loss of the Union's majority status i4
Since I have found that Respondent 's refusal ,to bargain,
occurred before , July 10 (the end of the certification year) it
follows that the Respondent violated Section 8(a)(5))6f the
Act. Since it had not complied with its ' staiutory'`obligation,
that obligation continued after the expiration period and
will continue until it has complied by bargaining in good
faith for a reasonable length of time.
Upon the foregoing ' findings, I- make the following:
CONCLUSIONS OF LAW
1. By making changes in the terms and conditions of its
employees in the bargaining unit without notice- to or
negotiation with the Union and by refusing to meet and
bargain in good faith with the Union as required, by the,
Act, Respondent-violated Section 8(ax5) and (1) of the'
Act. The appropriate bargaining unit is:
All nurses aides, orderlies, dietary employees, kitchen
employees, and laundry employees, employed by the,
Employer at its nursing home located at 34330 Van
Born Road, Wayne, Michigan, but 'excluding, all
licensed practical nurses, official clerical employees,
professional and technical employees, guards, and
supervisors as defined in the Act, and all other
employees.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found Respondent engaged in and is engaging in
certain unfair labor practices it will be recommended that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Because the record herein reflects not only that the
employees in the bargaining unit applied to the regional
office for a revote (another election?) but that no reply was
received from the regional office I believe the notice herein
should contain language advising the employees of their
right to a decertification election.15 See N.L R.B. v. Price-
Less Discount Foods, Inc., 405 F.2d 67, 407 F.2d 1125 (C.A.
1969).
office . Assuming it failed to meet the formal requirements of an election
petition it would seem that the employees would have been advised of their
rights under Section 9 and of the requirements for complying with the
section . Failure of communication in the private sector is considered routine
but the government is held to standards of perfection. In the absence of
other explanation, I can only conclude that occasional lapses are inevitable.
This is not intended as a criticism of the regional office but only as an
expression of the Trial Examiner's bewilderment.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, I recommend pursuant to
Section 10(c) of the Act issuance of the -following: 16
ORDER
Respondent Wayne Convalescent Center, Inc., its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Making any changes in the terms and working
conditions of its employees without notice to and negotia-
tion with Nursing, and Convalescent Home Employees'
-Employees International Union, LocalDivision, Service,.
No. 79, AFL-CIO.
(b) Refusing to bargain collectively and in 'good faith
with the above-named Union as the exclusive collective-
bargaining agent of its employees in the unit found
appropriate herein.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon the request of the Union rescind any of the
unilateral changes in terms and conditions of its employees
in the appropriate unit and make its employees whole for
16 In,the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the` National Labor Relations Board, the
findings, conclusions,'and recommended Order-herein shall , as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
17 This paragraph conforms to the relief requested by the General
Counsel in his complaint.
1s In the event that the Board 's order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "POSTED
any ^ losses they may have suffered as a result of such
unilateral changes.l7
(b) Upon request bargain collectively and in good, faith
with the, above-named Union as the exclusive - bargaining
representative of all the employees in the appropriate unit
with respect to rates of pay, wages, ' hours of employment,
and other terms and conditions - of employment, -and
embody in a written agreement any- .understanding
reached.
(c) Post at its nursing home at 34300 Van Bom-Road,
Wayne, Michigan, copies of the notice` attached hereto and
marked "Appendix.""' Copies 'of` said notice on forms
provided by the Regional Director for . Region `7, after
being duly signed by Respondent's representative, shall be
posted by Respondent- immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or, covered by any other -, material:
(d) Notify the Regional Director for Region 7, in'' wtiting,
within 20 days from- receipt of this recommended Order
what steps Respondent has taken to comply' herewith.1e
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall
bechanged to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING6 AN ORDER
OF THE NATIONAL LABOR RELATIONS-BOARD."
is in the event that this recommended Order is, adopted by the Board
after exceptions have been'filed „ this provision shall beemodified to read:
"Notify the Regional .Director for Region ,7, in writing , within 20 days from
the date of this ' Order, what steps the Respondent ' has taken to comply
herewith."