NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal
errors so that corrections can be included in the bound volumes.
P.G.H.C.C., Inc. d/b/a Pacific
Grove Convalescent Hospital and
SEIU United Healthcare Workers West, Service Employees International Union. Cases 32–CA–22879
and 32–CA–22894
August 6, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and walsh
On May 9, 2007, Administrative Law Judge Gerald A. Wacknov
issued the attached decision. The
Charging Party filed exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated 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
briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the
recommended Order as modified.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, P.H.H.C.C., Inc., d/b/a Pacific Grove
Convalescent Hospital,
Pacific Grove, California, its officers, agents, successors
and assigns, shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Soliciting employees to sign a petition to decertify
SEIU United Healthcare Workers West, Service Employees International Union as
their collective-bargaining representative.”
2. Substitute the attached notice for that of the administrative
law judge.
Dated, Washington, D.C. August 6, 2007
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
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
Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We
will not solicit employees to
sign a petition to decertify SEIU, United Healthcare Workers West, Service
Employees International Union as your collective-bargaining representative.
We
will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Section 7 of the
Act.
P.G.H.C.C., Inc, d/b/a Pacific Grove
Convalescent Hospital
Michelle M. Smith, Esq., for the General Counsel.
Maria Anastas, Esq. and Aaron Roblan, Esq. (Davis Wright Tremaine, LLP), of San Francisco, California,
for the Respondent.
Bruce A. Harland, Esq. (Weinberg, Roger & Rosenfeld), of Alameda,
California, for the Union.
DECISION
Statement of the Case
Gerald A.
Wacknov, Administrative
Law Judge. Pursuant to notice a hearing in this matter was held before
me in Pacific Grove, California on February 27, 28, and March 1,
2007. The charge in Case 32–CA–22879 was filed by SEIU United Healthcare
Workers West, Service Employees International Union (the Union) on October 13,
2006, and an amended charge was filed by the Union
on January 30, 2007. The charge in 32–CA–22894 was filed by the Union on October 26, 2006. Thereafter, on January 30,
2007, the Regional Director for Region 32 of the National Labor Relations Board
(the Board) issued a consolidated complaint and notice of hearing alleging
violations by P.G.H.C.C., Inc., d/b/a Pacific Grove Convalescent Hospital (the Respondent)
of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The
complaint was orally amended at the hearing to add an additional Section
8(a)(1) allegation. The Respondent, in its written and verbal answer to the
complaint allegations, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to introduce relevant
evidence. Since the close of the hearing, briefs have been received from
Counsel for the General Counsel (the General Counsel) and counsel for the
Respondent. Upon the entire record, and based upon my observation of the
witnesses and consideration of the briefs submitted, I make the following
Findings of Fact
i. jurisdiction
The Respondent is a California
corporation with its office and principal place of business located in Pacific Grove, California
where it is engaged in the operation of a convalescent hospital. In the course
and conduct of its business operations the Respondent annually derives gross
revenues in excess of $100,000, and has received federal Medicare funds in
excess of $5,000. It is admitted and I find that the Respondent is, and at all
material times has been, an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
ii. the labor organization involved
It is admitted, and I find, that the Union
is and at all times material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
iii. alleged unfair labor practices
A. Issues
The principal issue in this proceeding is whether the Respondent
has violated Section 8(a)(1) and (5) of the Act by unlawfully causing the
circulation of a decertification petition and thereafter withdrawing
recognition from the Union.
B. Facts
John Lund has been the owner and president of the Respondent
since January, 2006.
He owns and operates seven nursing homes in California, with a total employee complement
of approximately 500 employees. He has been involved in collective-bargaining
negotiations, grievance matters, arbitration, informational picketing and
handbilling, and similar labor relations matters with the SEIU at various
facilities. He
has always retained labor counsel prior to acquiring the nursing homes he owns
and operates, including the Respondent, because, as Lund testified, “I knew, as a successor
employer, I had certain rights and I knew that it was delicate what I could and
couldn’t
say . . . I didn’t want to do anything improper.” He has been involved in
negotiating about a dozen contracts over a period of 15 years.
The Union and the
Respondent’s predecessor had maintained a collective-bargaining relationship
for many years. Upon acquiring the Respondent Lund hired the Respondent’s
then-current complement of employees after advising them that they would be
hired subject to the wages, hours, and conditions of employment established by
the Respondent. Thereafter he recognized the Union as the collective-bargaining
representative of the Respondent’s employees, and his attorney commenced to
bargain with the Union over an initial
collective-bargaining agreement. Since becoming the Respondent’s owner he has maintained
contact with its administrator, John Jones, and has visited the facility about
once a month to check in with Jones, make rounds, and oversee the operations.
Bargaining sessions were held on March 7, March 28, April
18, and June 26. At the June 26 bargaining session the parties entered into a
document entitled “Tentative Agreements” which contains recognition provisions
and several additional items, but nothing regarding wages and most economic
matters. By September the parties had not had a subsequent bargaining session,
but had exchanged letters proposing further bargaining dates.
In early September Lund
returned to the facility for a periodic routine visit. At a nurse station, one
of the Certified Nursing Assistants (CNA’s), Monica Tonga, approached him and
asked when the employees were going to get a raise. Several other CNA’s were
working nearby and gathered around when they overheard Tonga’s question. Lund
testified that he replied, “I can’t give you a raise because I’m in
negotiations with the Union currently.”
According to Lund,
nothing further was said about raises, and he made no mention of any employee
being entitled to $18 per hour either with or without a union, infra.
Then, according to Lund,
another CNA who was present, namely Phillip Lamar, began asking Lund about the Respondent’s
paid time off (PTO) policy. Lund
explained the policy as best he could. He then asked if someone could get an
employee handbook, which sets out the details of the policy. CNA Valerie
Domenighini volunteered to do so while Lamar, according to Lund, “ran to his car to get his check stubs,
because he didn’t think [PTO] was being . . . properly reflected on his checks.”
Then, after the two employees returned, the conversation continued. At some
point, Domenighini asked him, “how do we get rid of this Union?”
Lund believes
that only Lamar and Domenighini were present at the time.
Lund
told her that he would have to get back to her on that and would get her an
answer in a couple of weeks. Lund
testified that he “knew it was a question that could get me into trouble if I
answered it improperly, potentially an unfair labor practice.”
Following this visit Lund contacted his attorney about the
matter, and received an email dated September 7, setting forth two ways the employees
could remove the Union: by collecting signatures from a majority of bargaining
unit employees on a petition stating they no longer wished to be represented by
the Union, or by obtaining such signatures from at least 30 percent of the employees
in order to begin the election process through the Board. On his next visit to
the facility some 2 weeks later, apparently on September 28, both Lamar and
Domenighini approached him and Domenighini asked, “have you got something for
me?” Lund said
he did and gave her the email and walked away. There was no further
conversation. Lund
does not recall whether Domenighini and Lamar kept the email or, after reading
it, immediately gave it back to him.
Shirlita Castelo has worked for the Respondent for 17
years. She is currently making $13.83 per hour.
She was present during the foregoing conversation between
Lund and Tonga,
who began the conversation as Lund happened to
pass by the nurse station where Tonga
and several other employees were working. After Tonga
initiated the conversation by asking about a raise, other interested employees
gathered around to hear Lund’s
answer. Castelo’s version of the conversation is as follows:
And she [Tonga]
asking him when we can have the raise. And he said he cannot give us a raise
because we still in the Union. And he [Lund] turned around as he said to Beth [Elizabeth
Alcantara], Beth been there a long time and she should have $18.00 per hour but
we still on the Union so she cannot have the
$18.00. So Valerie [Valerie Domenighini] told us that, okay, we going to out of
the Union, that’s what she said.
CNA Elizabeth Alcantara has worked for the Respondent for
nearly 19 years. She is currently making $13.83 per hour. Alcantara testified
that when Tonga asked when
the employees could get a raise, Lund replied, “.
. . if you want the raise, you have to give up, you know, the Union.”
Then Tonga,
using Alcantara as an example, mentioned that Alcantara had been there almost
19 years and was “only getting thirteen something an hour.” To this Lund replied, “oh, so if
you are not Union I can give you like $18.00 an hour.”
Tonga
worked for the Respondent for about 4 years. She left the Respondent’s employ
on February 25, 2007, approximately 3 weeks prior to the hearing herein. Tonga began the colloquy with Lund by asking him “when we going to get a
raise.” Tonga testified as
follow regarding Lund’s response to her
question: “His response was telling me and everybody else who was there that, I
can’t do anything right now because I’m still under negotiating with Union.” According to Tonga,
Lund said nothing about a raise for anyone to
$18 per hour or about getting rid of the Union.
Regarding the possibility of a wage increase, Tonga
testified she understood from Lund’s
answer, “that when they finished negotiating they might or might not [receive a
wage increase], so I was satisfied with his answer.” Then, following this
colloquy, Phillip Lamar, who was also present, began talking to Lund about other matters
not concerning pay raises.
Lamar has worked for the Respondent for 3 years. Lamar
testified that Tonga asked Lund about the raise and Lund “said that we couldn’t get a raise because
we were in Union negotiations.” Elaborating, Lamar testified Lund said, “That we’re in Union negotiations
and he couldn’t give us raises, he has to go through them first.” Then Lamar
began talking to Lund
about a particular problem concerning his paycheck. Lamar does not recall any
other discussion whatsoever regarding wage increases.
Domenighini has worked for the Respondent since February
1. During her testimony Domenighini initially gave the following account of the
conversation:
Well, all of us were up at station two just doing out
(sic) chit chat, messing around up there and John Lund came up and Monica had said
to him, when are we going to get a raise? And at this time John said, well, I’m
in negotiations with the Union at this time
and all raises go through them.
Immediately following this exchange, according to
Domenighini, there was discussion of an unrelated matter raised by Lamar.
However, Domenighini then inconsistently testified that
after Tonga asked Lund about raises, the subject of merit raises was
discussed, and Lund
said, “he thought that he could give us merit raises for the job performance
that we did.” Then
Domenighini gave yet a third version of the conversation, namely, that after
Lund answered Tonga’s question, Domenighini explicitly told Lund that she
thought his answer was “bull shit.” She said this because she was very much opposed
to the Union and believed Lund’s answer “was
bull because why do we have to go through the Union
for a raise . . . I mean why can’t we just get the raise?”
Lund
testified that no employees at any of his nursing homes make anything “even
close” to $18 per hour. Tonga,
who has been employed at various facilities, testified that she knows of no CNA’s
who make as much as $18 per hour in a convalescent facility such as the
Respondent’s, as distinguished from an acute care facility such as a community
hospital which requires a totally different level of patient care. The record
contains no contrary evidence.
Lamar testified that he read the aforementioned email document
handed to him by Lund
and immediately returned it to him. He then prepared a decertification petition
for employees’ signatures and began circulating the petition on September 29.
On September 30 he gave the petition to Domenighini who continued the process.
On October 1, Domenighini submitted the petition, containing 25 signatures, to Respondent’s Administrator, John
Jones, and asked him if he would obtain two additional signatures, naming two
employees who had, according to Domenighini, indicated a willingness to sign.
Jones did so, infra. The
parties stipulated that “During the payroll period ending September 30, there
were 43 employees in the bargaining unit.” Thus, at the time Domenighini
submitted the petition to Jones it had already been signed by a majority of bargaining
unit employees.
As noted above, Jones solicited the signatures of two employees,
namely, Raul Datuin and Carmen Torre, on the petition. The Respondent admits
that Jones’s conduct in this regard was improper.
Datuin is no longer working for the Respondent and was apparently
dismissed for cause. According to Datuin, Jones approached him at work and directed
him to sign the petition. Jones told him that the Union
was just taking his money, that a majority of the employees had already signed,
that they needed numbers, and that this is what John Lund wanted.
Carmen Torre testified that Jones approached her with the
petition and said, “they trying to get rid of the Union
and everybody sign it.” Jones said the Union
is “good for nothing.” He also said, “And you can always change you mind if
anything happens, any troubles, you always can come to me and ask me if we can
fix any troubles.” Torre was not asked whether Jones made this latter statement
before or after she signed the petition.
Jones testified that he is responsible for the day to day
administration of the Respondent’s facility and has had no involvement with
union negotiations or union matters. He is primarily responsible for patient
care. Jones testified that Domenighini gave him the petition and told him there
were two additional employees who were interested in signing. Without obtaining
Lund’s
permission, he approached them individually and simply asked if they wanted to
sign. He did not know at the time that his conduct in this regard was improper.
Datuin volunteered that he was very much opposed to the Union
and signed the petition. Regarding his conversation with Torre, Jones does not
recall whether he told Torre that a majority of the workers had already signed;
however, after signing the petition Torre asked him a question about a payroll
issue. He told her to go to the payroll person if she had a problem, “and if
you can’t resolve it, contact me and I’ll help you.”
On October 2, the same date Jones solicited the two aforementioned
signatures, Respondent’s attorney sent the following letter to the Union:
My client has advised me that an overwhelming majority of
employees at the Pacific Grove facility have
signed a petition seeking to remove your Union
as their bargaining representative. Consequently, my client is hereby
withdrawing recognition from the Union. Should
you have any questions, please contact the undersigned.
C. Analysis and Conclusions
The General Counsel contends that Lund impliedly told the
employees that the Union was the impediment to their receiving substantial wage
increases, and that his comments were the catalyst for the decertification
petition; therefore, the petition was tainted and the Respondent’s subsequent
withdrawal of recognition was unlawful.
I credit the testimony of Lund,
Tonga, Lamar, and
Domenighini and find that Lund
did not make the remarks attributed to him by Castelo and Alcantara. In
particular I was impressed with Tonga’s
account of the conversation. Tonga,
who was no longer working for the Respondent at the time of her testimony, initiated
the conversation and, insofar as the record shows, was the most neutral witness
among the entire group. Thus, Domenighini and Lamar prepared and circulated the
decertification petition and were the first to sign it, while Castelo and
Alcantara refused to sign it. I also credit Tonga’s
testimony that Castelo, at some point shortly prior to the hearing, attempted
to cause her to change her account of the conversation and that Tonga
adamantly refused, replying that she intended to tell the truth.
Further, it is highly improbable that Lund would have made the statements
attributed to him by Castelo and Alcantara. The record establishes that Lund is well acquainted
with union-management labor relations matters and that he was not particularly
acquainted with the employees; thus, he would not have known their union
sentiments. Accordingly, he would not have made such overt antiunion remarks to
this spontaneous gathering of employees as there was no way for him to know
whether this alleged promise of approximately a 30 percent wage increase would
cause employees to initiate a decertification petition, or would have the
deleterious effect of causing the Union to increase its wage demands at the
bargaining table and thereby present a stumbling block to the ongoing contract
negotiations. Indeed, it would appear that the amount of the alleged wage
increase is in and of itself so inordinate as to render Lund’s alleged remark highly implausible.
The Respondent admits, and I agree, that Respondent’s Administrator,
John Jones, unlawfully solicited the signatures of two employees on the decertification
petition. I find that by such conduct the Respondent has violated Section
8(a)(1) of the Act.
However, in the absence of any specific contrary testimony
from Torre, I credit Jones’s testimony that Torre signed the petition prior to
his remarks that she could come to the Respondent to attempt to resolve any
problems. Therefore, I shall dismiss the allegation that Jones impliedly
promised benefits to Torre in exchange for signing the petition.
The parties stipulated that the petition contained 25 signatures
before Jones solicited the final two signatures, and that there were 43
employees in the bargaining unit. From the foregoing, I find that the petition
was not tainted by the Respondent’s conduct, that it was validly signed by a
majority of bargaining unit employees, and that the Respondent’s withdrawal of
recognition from the Union was not unlawful.
Conclusions of Law
1. The Respondent
is an employer engaged in commerce within the meaning of Section 2(2) (6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent
has violated Section 8(a) (1) of the Act as found herein.
The Remedy
Having found the Respondent has violated and is violating
Section 8(a)(1) of the Act, I recommend that it be required to cease and desist
therefrom and from in any other like or related manner interfering with,
restraining, or coercing its employees in the exercise of their rights under
Section 7 of the Act. I shall also recommend the posting of an appropriate
notice, attached hereto as “Appendix.”
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended
ORDER
The Respondent, P.G.H.C.C., Inc., d/b/a Pacific Grove Convalescent
Hospital, Pacific Grove, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist
from
(a) Soliciting
employees to sign a decertification petition.
(b) In any like or
related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action, which is necessary to effectuate the purposes of
the Act.
(a) Within 14 days
after service by the Region, post at its Pacific
Grove facility copies of the attached notice marked “Appendix.” Copies of the
notice, on forms provided by the Regional Director for Region 32, after being
duly signed by the Employer’s representative, shall be posted immediately upon
receipt thereof, and shall remain posted for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Employer to ensure that the
notices are not altered, defaced, or covered by any other material.
(b) Within 21 days
after service by the Regional Office, file with the Regional Director for
Region 32 a sworn certification of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has taken to comply.
Dated: Washington,
D.C. May 9, 2007
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 Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not solicit
employees to sign a petition to decertify the SEIU, United Healthcare Workers
West, Service Employees International Union as your collective bargaining
representative.
We will not in any
like or related manner interfere with, restrain, or coerce employees in the
exercise of the foregoing rights guaranteed them by Section 7 of the Act.
P.G.H.C.C., Inc, d/b/a Pacific Grove
Convalescent Hospital
