Ashville-Whitney Nursing Home

National Labor Relations Board - Board Decisions

Jan 11, 1974

208 N.L.R.B. 341 (N.L.R.B. 1974)

ASHVILLE-WHITNEY NURSING HOME
Ashville-Whitney Nursing Home and Jim H . Pierce,
Lessee and Retail , Wholesale & Department Store
Union, AFL-CIO. Case 10-CA-8200
January It, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On January 29, 1971, the National Labor Relations
Board issued its Decision and Order in the instant
case ' finding that Respondent violated Section
8(a)(3) and (1) of the Act by refusing to employ 17
individuals because of prior union activity on their
part. On October 4, 1972, the United States Court of
Appeals for the Fifth Circuit entered its decision2
denying enforcement of the Board's Order without
prejudice to a renewal of the Board's enforcement
petition, pending further consideration by the Board.
The court held that the record before it was too
ambiguous to support a finding of statutory jurisdic-
tion over Respondent's enterprise. Accordingly. the
court remanded the case to the Board for additional
findings on this point.
On January 22, 1973, the Board issued an order in
which it reopened the record, remanded the case for
further hearing consistent with the opinion of the
court, and directed the Administrative Law Judge,
upon conclusion of the hearing, to prepare and serve
on the parties a Supplemental Decision containing
findings of fact, conclusions of law, and recommen-
dations. Pursuant to notice, a supplementary hearing
was held on April II and May 14, 1973, before
Administrative Law Judge Joseph I. Nachman.
On June 29, 1973, the Administrative Law Judge
issued the attached Supplemental Decision. Thereaft-
er, Respondent E. L. Clark filed exceptions to the
said Supplemental 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommendations to
the extent consistent herewith.
In response to the court's remand, the testimony
adduced at the supplementary hearing clearly indi-
cates that Ipco is a corporation domiciled outside the
State of Alabama, that Ipco maintains no office,
warehouse, or supplier within the State of Alabama,
that goods shipped by Ipco to the home at Ashville,
341
Alabama, were shipped directly from the warehouse
of Ipco's Atlanta, Georgia, branch office, and that
amounts due were paid directly to that office. For
these reasons, we conclude that the record, as now
amplified by a supplementary hearing to show
$1.909.96 in direct out-of-state purchases during the
period of March 18, 1970, to September 1, 1970, fully
establishes the Board's statutory jurisdiction in this
proceeding.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the Recommendation of the
Administrative Law Judge and hereby orders that
Respondents E. L. Clark, owner, and Jim H. Pierce,
lessee , of the Ashville-Whitney Nursing Home,
Ashville, Alabama, their officers, agents , successors,
and assigns, shall take the action set forth in our
original Order dated January 29, 1971.
I 188 NLRB 235
2 468 F.2d 459
3 We do not adopt the Administrative Law Judge 's conclusion that the
credit allowed by Ipco on December 24, 1970 . more than a year after the
pro.icnbed activity occurred and in a period when the home was no longer
operated by Clark or Pierce , constituted a deduction for purposes of
determining the home's "affecting commerce."
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This
proceeding tried before me at Ashville, Alabama, on April
11 and May 14, 1973, with the General Counsel and
Respondent Clark represented by their respective counsel,
pursuant to remand by the United States Court of Appeals
for the Fifth Circuit, as set forth in its opinion dated
October 4, 1972 (468 F.2d 459), and an order of the
National Labor Relations Board (herein the Board), dated
January 22, 1973, reopening the record pursuant to the
remand . In its opinion of October 4, 1972 , the court of
appeals approved all of the Board 's procedural and unfair
labor practice rulings, but denied enforcement notwith-
standing its finding that "the record also discloses that the
home purchased $ 1700 in supplies during a year of
operation , from lpco , a firm whose 'main office' is located
in Atlanta, Georgia" [468 F.2d at 467], the court stating:
The present record is so ambiguous that it would
require an act of faith for us to conclude that the
home's purchases from Ipco "affect commerce" within
the meaning of the Act. For all we know, Ipco may
have an independent Alabama subsidiary. . . . It may
even be an Alabama corporation. Revenues derived
from Alabama sales of Ipco products may never leave
Alabama, and there is admittedly no evidence proving
interstate movement of Ipco products . If these possibil-
ities are true , the effect on interstate commerce of the
208 NLRB No. 40
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home's dealings with Ipco would be-at least on the
surface-quite remote.
... We therefore hold that the present record will
not support a finding of statutory jurisdiction over the
respondent's enterprise.
territory to be served by its various branch offices, St. Clair
County, Alabama, in which Ashville is located, is assigned
to the Atlanta branch. Additionally Rodgers identified 17
invoices showing shipments from Ipco's Atlanta warehouse
to the home here involved which disclose the following
transactions, all in 1970: 2
Because the present record will not support a finding
of statutory jurisdiction over the respondent's enter-
prise, enforcement of the Board's order is Denied and
the cause Remanded to the Board for additional
evidence, findings of fact, and conclusions of law
consistent with this opinion. [Citations omitted.] I
At the remand hearing all parties were afforded full
opportunity to examine and cross-examine witnesses, to
introduce evidence relevant and material to the issue on
remand, to argue orally on the record, and to submit beefs.
Oral argument was waived. Briefs submitted by the
General Counsel and Respondent, respectively, have been
duly considered. Upon the stipulations of counsel, the
evidence including my observation of the demeanor of the
witnesses while testifying, and the entire record in the case,
I make the following:
FINDINGS OF FACT
As set forth in the court's opinion, beginning in early
September 1969, and continuing to the end of that
calendar year, Clark operated the home here involved as a
sole proprietor, with Pierce as his administrator, and it was
during this period that the unfair labor practices found by
the Board and approved by the court occurred. On
January 1, 1970, Clark leased the building and all
equipment therein to Pierce, and as "lessee-operator"
Pierce thereafter operated the home until about December
1, 1970, when Clark canceled the lease for nonpayment of
rent. Notwithstanding this lease of the home to Pierce, the
court concluded, as had the Board, that, because the lease
was not filed with the proper state authorities, "Clark, by
his own actions, created the appearance that the home
remained his principal place of business, [and that] he is
not entitled to benefit from this confusion." 468 F.2d at
464.
At the reopened hearing, the General Counsel called as
his only witness Donald Rodgers, presently general
manager of Ipco, and for about 8 years branch manager of
Ipco's Atlanta office. From the copies of invoices in the
record, it is apparent that Ipco is a national operations,
with its main office apparently in New York City, with
approximately 12 branch offices at various locations in the
United 'States, including specifically, Atlanta, Georgia.
Rodgers testified without contradiction that Ipco does not
have in the State of Alabama any sales office, warehouse
facility, or supplier from whom it obtains merchandise
which it sells to its customers; that in establishing the
1 The court's remand does not involve the Board 's discretionary
standard for the assertion of jurisdiction over nursing homes. Rather the
court approved the Board's finding that the discretionary standard was
satisfied saying, "Annual gross revenue of the home exceeds the Board's
$100,000 jurisdictional yardstick for nursing homes." 468 F.2d at 466.
2 Although the first two invoices show the purchaser as "Whitney Conv.
Total
Date Qty. Item Invoice
Mar. 18 20 Fluff $208.00
Apr. 9 1
underpads
Commode 31.51
Apr. 17 15 Fluff 156.00
Apr. 20 1
underpads
Stethoscope 3.74
Apr. 20 Sundry Medical 30.47
supplies
May 2 12 Urinals 30.95
May 2 4 dz Coffee cups 31.24
May 6 2 Patient 16.22
May 12 1
restrainers
Catheter tray 22.88
May 13 1 Sterilizer 544.76
May 15 15 Fluff 156.00
underpads
May 15 Sundry Medical 31.68
Supplies
June 2 1 Wash Basin 22.57
June 10 15 Fluff 156.00
July 10 15
underpads
Fluff 156.00
Aug. 6 15
underpads
Fluff 156.00
Sept. 1 15
underpads
Fluff 156.00
underpads
Total purchases $1,909.963/
& Medicare Center, Inc. Ashville. Alabama," the remaining 15 show the
purchaser as "Ashville-Whitney Nursing Home, Ashville , Alabama, Attn-
Mr. Jim Pierce." The evidence makes it clear, however , that all the invoices
represent sales to the home here involved in the period indicated, and I so
find.
a Rodgers testified that the specific invoices above set forth , which are in
evidence as Resp . Exhs. 3(aHv), were pulled from Ipco's records, which are
in storage, to support the entries appearing on Resp . Exh. 2, entitled "Aged
Teal Balance " Rodgers was unable to state that the invoices in the record
present a complete picture of Ipco's 1970 transaction with the home,
because the search of his records was by no means thorough. According to
Rodgers, under Ipco's accounting system, if a payment is received in the
exact amount of a prior invoice , neither the amount of the prior invoice nor
the subsequent payment thereafter appears on the computer printout of the
status of the account, and that there could have been a number of
additional invoices, which were paid by a check in the exact amount, which
he would have difficulty locating and identifying among the stored records.
ASHVILLE-WHITNEY NURSING HOME
In addition to the aforementioned shipments from Ipco to
the home, there is a credit bill in evidence showing that on
December 24, 1970, the home returned to Ipco's Atlanta
establishment the sterilizer represented by the invoice of
May 13, and 45 fluff pads, apparently represented by the
invoices of July 10, August 6, and September 1, resulting in
a credit to the account of the home of $911.42, after
deducting a 10-percent return goods charge? Thus, it
appears that the net amount of goods sold by Ipco to the
home during the period between March 18 and September
1, was $998.54. If this 5-1/2 month period were projected
to an annual basis, the amount of such annual purchases
would be approximately $2,200.
Analysis and Conclusions
Respondent argues that the evidence in this record fails
to establish that Clark, during any period he operated the
home, made any purchases from Ipco, and there is thus no
evidence of the movement of goods to him in interstate
commerce . This argument, in my view fails to meet the
issue . I construe the court's opinion not as posing an issue
as to whether ,he operations of Clark, as distinguished
from those of Pierce, satisfied the jurisdictional require-
ments of the statute, but rather whether the operations of
home-the establishment here involved-be it owned by
4 Rodgers testified without contradiction that, although the return of this
merchandise was contrary to Ipco's return goods policy, he anticipated a
collection problem ,tad concluded that under the circumstances he would
rather have the merchandise than an account receivable.
s As my findings -ierein that there was a direct movement of goods in
interstate commerce from lpco to the home , and the amount thereof, is
based on the credited testimony (both oral and documentary ) of Rodgers,
and not on the testimony of Pierce given at the original trial, it becomes
unnecessary to consider whether, as Clark contends , it was error to reject
343
Clark, Pierce, or anyone else, were such as to require the
conclusion that its operations were in commerce to a
degree greater than de minimus. On that issue, I find and
conclude, upon consideration of the entire record, that an
affirmative answer is required.
The evidence shows beyond doubt-indeed Respondent
Clark does not seriously question-that at least goods of
the net value of about $1,000 moved in commerce direct-
ly from Ipco's Atlanta warehouse to the home in Ash-
ville, Alabama, between March 18 and September 1, 1970.
Whether this figure is regarded as the total movement
of goods in commerce for the year 1970, or whether it
is projected on an annual basis so as to reach a figure of
approximately $2,200 for the year, is immaterial . In either
event, this movement of goods in commerce had more than
a de minimus effect thereon. See Drexel Homes, Inc., 182
NLRB 1045, 1046, where only $860 annual direct inflow
from out of state was shown.5
Accordingly, for the reasons above stated, I find and
conclude that the evidence sustains the Board's statutory
jurisdiction over the home involved in this proceeding and
recommend that the Board adhere to and reaffirm its prior
Decision and Order, dated January 29, 1971, and pub-
lished at 188 NLRB 235.6
the testimony he offered , which tended to establish that Pierces reputation
for truth and veracity was bad.
6 In the event no exceptions are filed hereto as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Sec. 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.