Chico Convalescent Hospital

National Labor Relations Board - Board Decisions

May 10, 1974

210 N.L.R.B. 547 (N.L.R.B. 1974)

CHICO CONVALESCENT HOSPITAL 547
Evison J . Dent and Doris L. Dent, Co-Partners, d/b/a
Chico Convalescent Hospital and Service Employ-
ees International Union, Local No. 22, AFL-CIO.
Case 20-CA-7800
May 10, 1974
DECISION, ORDER, AND DIRECTION
OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS KENNEDY'
AND PENELLO.
On October 24, 1973, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed a brief in answer to Respondent's
exceptions and in support of the Decision of the
Administrative Law Judge and, in addition, filed
cross-exceptions, to which Respondent filed an
answering 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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to :.-:opt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, e,,, amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Evison J. Dent and
Doris L. Dent, Co-Partners, d/b/a Chico Convales-
cent Hospital, Chico, California, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
[Direction of Election and Excelsior footnote
omitted from publication.]
i In his Decision , the Administrative Law Judge referred to the
Respondent as the "Dents." The Respondent has excepted to these findings
on the grounds that the Dents , as individuals , were not shown to have been
engaged in commerce . We agree . We therefore amend the Administrative
Law Judge 's Decision by deleting all references to the Dents , individually,
as the Respondents and substituting therefore "Evison J . Dent and Dons L.
Dent, Co-Partners, d/b/a Chico Convalescent Hospital."
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
July 24 and 25, 1973, I presided over a hearing at Chico,
California, to try issues raised by a complaint issued on
May 3, 1973, a first amendment to that complaint dated
May 23, 1973, and a second amendment to that complaint
dated July 13, 1973.1
The amended complaint alleges that the Dents,2 as
successor employers to the previous operators of CCH,
Robert and Shirley McChesney, violated Section 8(axl),
(3), and (5) of the Act by: (1) changing wage rates of some
of its employees without prior notice to or bargaining with
Service Employees International Union , Local No. 22,
AFL-CIO,3 their exclusive collective-bargaining represent-
ative , and (2) discharging those of its employees who
engaged in a strike because of those changes.
While conceding they made the wage changes in
question, the Dents deny they were successor employers;
contend they were legally entitled to make such changes;
deny they discharged the strikers ; allege that they
bargained in good faith with the Union concerning the
wages , hours , rates of pay, hours, and working conditions
of their employees; allege the strike was an economic and
not an unfair labor practice strike ; assert that the General
Counsel failed to prove that the Union represented a
majority of their employees in an appropriate unit prior to
the changes ; and, finally, urge that no remedial election
order should issue in view of extensive union and striker
misconduct during the course of the strike .4
The issues are:
1. Whether the Dents were successor employers;
2. Whether the Union represented a majority of the
Dents' employees within a unit appropriate for collective-
bargaining purposes prior to the time the Dents changed
the rates of pay of employees within the unit;
3. Whether the Dents violated Section 8(a)(5) of the
Act by reducing the unit employees' wage rates without
prior notice to or bargaining with the Union;
4. Whether the Company bargained in good faith with
the Union concerning the unit employees ' wages , rates of
pay, hours, and working conditions;
5. Whether the strike was an economic or unfair labor
practice strike;
i The charge which inspired the amended complaint was filed by Service
Employees International Union , Local No. 22, AFL-CIO, on September 22,
1972 In their brief , the Dents renewed their objection to my admission of
the second amendment to the complaint . The Dents based their oNectiou
on the ground that the Regional Director exceeded his authority by issuing
allegations of violation by the Dents of Sec 8(a)(3) of the National Labor
Relations Act, as amended (hereafter called the Act). The Dents argue that
since the Washington Office of the General Counsel authorized the issuance
of the original complaint and the first amendment to that complaint, which
were limited to allegations of violation of Sec 8 (aXI) and (5) of the Act, and
since unsuccessful attempts at settlement were based on those 8(a)(1) and
(5) allegations , Sec. 3(d) of the Act and Sec . 10262 of the manual prevented
the subsequent issuance by the Regional Director of the second amendment
to the complaint . I reaffirm my denial of the Dents ' objection to the
admission of the second amendment to the complaint. A complaint and
amendments thereto may be authorized either by the General Counsel
through his Washington Office and/or the Regional Director. The issuance
of the second amendment to the complaint, having been authorized by the
Regional Director , therefore complies with Sec. 3 (d) of the Act and Sec.
10262 of the manual.
R Evison J. Dent and Dons L. Dent , Co-Partners, d/b/a Chico
Convalescent Hospital, hereafter referred to as CCH.
3 Hereafter referred to as the Union.
4 The General Counsel stated in the amended complaint he is not
seeking a recognition and bargaining order in view of certain strike
misconduct, but requests a remedial election . The Union acquiesced to this
position.
210 NLRB No. 81
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6.'J Whether the Company discharged striking employ-
ees for participating in the strike; and
7. Whether strike misconduct by the Union and the
strikers warrants withholding a remedial election order.
The General Counsel and the Dents appeared by counsel
and the Union by its business manager, Thomas Coleman.
They were afforded full opportunity to adduce evidence,
examine and cross-examine witnesses, argue, and file
briefs. Briefs have been received from the General Counsel
and the Dents.
Based on my review of the entire record,5 observation of
the witnesses, perusal of the briefs, and research, I enter the
following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged , the answer admitted, and I find
that the Dents at all times material were employers
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since the 1960's Robert and Shirley McChesney have
owned and operated a chain of nursing homes or
convalescent hospitals . They utilized the name Statewide
Convalescent Hospitals for the overall operation. The
hospitals were generally engaged in the care of aged and
mentally deficient patients . The McChesneys followed the
practice of forming separate corporations to operate each
home or convalescent hospital.
They organized a corporation in 1966 to operate CCH.
They leased the land and buildings utilized in operating
CCH from a group of owners .6
B. The McChesney-Union Contracts
On July 1, 1967, Mrs. McChesney entered into a 3-year
contract with the Union and one of its sister locals, Local
250, wherein, inter alia, she recognized the Unions as the
exclusive bargaining representatives of employees at nine
convalescent hospitals operated by the McChesneys at the
time, including CCH. The recognition covered employees
in the following classifications : maid, housekeeping depart-
ment ; maintenance man; kitchen helper; relief cook; cook;
orderly; nurses aide ; medicine nurse ; senior nurses
aide-charge or team leader ; licensed vocational nurse;
nursing trainee ; and ward clerk.
On October 20, 1970, Mrs. McChesney entered into an
individual (one hospital) 3-year contract limited to CCH
wherein, inter alia, she recognized the Union as the
S The unopposed motion by the General Counsel to correct the
transcript is granted . The corrections are set out in full in Appendix A,
attached hereto [omitted from publication]
6 Russello and Rosenberg, a partnership ; Henry Albers; Leslie M. and
Albert H . Kessler; Michael and Joseph Augello ; and Statewide Security
Company, a corporation.
exclusive bargaining representative of essentially the same
classifications covered by the July 1, 1967, contract.?
C. The Changeover From McChesney to Dent
By the sprang of 19728 the McChesneys were in financial
difficulty at CCH and were in default on obligations under
the lease with Russello, et at, covering CCH.
In March, a member of the owner group, Henry Albers,
contacted the Dents to see if they were interested in taking
over operation of CCH. The Dents at the time were in the
same business as the McChesneys, operating three nursing
homes .9
By mid-April, Russello, et at, and the Dents reached a
tentative agreement for the changeover.
On April 25, the McChesneys and Russello, et at entered
into a contract wherein the parties agreed to cancel the
September 30, 1966, lease agreement between them
covering CCH and the McChesneys agreed to convey title
in all personal property on the premises of CCH, including
beds, mattresses , blankets, pillows, bedding, linens, cook-
ing utensils, flatware, food supplies, inventory, medical
supplies, etc. to Russello, et at in satisfaction of the
delinquency in rent and other obligations due to Russello,
et at, effective April 30.
On April 26, Russello, et at signed a contract wherein
the Dents leased all the real and personal property at the
CCH premises for a 20-year term commencing May 1,
1972.
The Dents arrived at CCH on May I to take possession
of the property and assume operation of CCH. They were
unable to do so, however, because the McChesneys refused
to authorize the Dents to operate CCH under the
McChesney license until they could secure their own.
The Dents secured their license sometime in May and
took over operation of CCH on June 1.
D. The Dent-Union Contacts
On April 28, Mrs. McChesney sent a letter to Coleman
stating the McChesneys would cease operating CCH on
May 1, 1972. On receiving the letter in early May, Coleman
instructed Union Business Representative William Flagg
to make contact with the new operators, advise them of the
contract between the Union and the McChesneys (which
still had some time to run) and ask them to assume that
contract for the balance of its term. Flagg contacted Mary
Ann Puch, CCH's administrator, and learned the identity
of the new operators-the Dents.
In early May, Flagg telephoned Mrs. Dent, informed her
he was a representative of the Union, advised her the
Union had represented the employees of CCH under
successive contracts for several years, stated he was sorry
he missed Mrs. Dent during her visit to CCH on May 1,
and asked for a meeting with the Dents to discuss the terms
of the current contract and see if there would be any
problems over continuation of the currently effective
r Maid, kitchen helper , relief cook, cook , orderly, aide, med. nurse,
licensed vocational nurse , maintenance , ward clerk , trainees for nurses aide,
housekeeping, laundry, orderly.
8 Read 1972 after all subsequent date references omitting the year.
9 Located at Waterview , Quincy, and Red Bluff, California.
CHICO CONVALESCENT HOSPITAL
contract. Mrs. Dent replied there probably would not be
any real problems but she wished to discuss ths matter with
her husband and would call him back in a week.10
By late May, not having received any call from Mrs.
Dent, Flagg again telephoned her and asked for a meeting.
Mrs. Dent advised Flagg that the Dents were going to have
a representative handle any dealings with the Union and
their representative would contact the Union to arrange a
meeting.
E. The Employee Complement Before and After the
Changeover
The final McChesney payroll for the CCH employees
(for the payroll period May 15-31) reflects a complement
of 36, including the administrator." Union dues were
checked off on the final McChesney payroll by 23 CCH
employees and remitted to the Union, pursuant to the
1970-73 McChesney-Union contract covering CCH.
The first Dent payroll for the CCH employees (for the
payroll period June 1-15) reflects a complement of 42,
including 35 of the 36 employees on the McChesney May
15-31 payroll.12
It is clear from the foregoing that the Dents continued
the entire McChesney work force at CCH in their employ,
including the administrator, and I so find.
F. The Business Operations Before and After the
Changeover
As noted heretofore, the McChesneys cared for elderly
and mentally deficient patients at CCH. On May 31, the
McChesneys were caring for 60 patients. The same 60
patients remained at CCH in the care of the Dents
commencing June 1.
The Dents employed the same work force to perform the
same duties the members thereof had performed while in
the employ of the McChesneys.
The Dents utilized the same premises, equipment,
supplies , and materials the McChesneys had utilized, to
care for the same patients.
The "employing industry" thus continued unchanged
both under the McChesney and Dent operation of CCH.
G. The Wage (and Other) Reductions
On June 5, the Dents held a meeting with the staff. Mrs.
Dent distributed forms headed "Applications for Employ-
ment" and asked the employees to fill them out, stating she
wanted the information on the forms to acquaint herself
with each employee's background. The forms contained
blanks directing the employees to show the length of their
10 Flagg's testimony, as recited above , is credited. Mrs. Dent's denial
that Flagg mentioned the Union 's representative status or contract during
their conversation seems incredible , and Flagg was a convincing witness.
11 Mary Ann Puch Puch ran the hospital on a day-to-day basis for the
McChesneys , and had worked up in their employ from a job within the unit
(she was a former member of the Union), then as secretary assistant to the
previous administrator and, finally, administrator She regularly participat-
ed in meetings to process grievances arising under the McChesney-Union
contracts covering CCH's unit employees, was familiar with the terms of
those contracts , and maintained a copy thereof. The administrator, RN's,
and the administrator 's office clerical assistant were not covered by the
549
employ by the McChesneys, job classification , and wage
rate.
On June 10, the McChesneys mailed the checks for the
last payroll period under their operation , ending May 31,
to CCH. The Dents distributed those checks to the
employees , enclosing with the checks a written notice that
wage scales were under review , might be revised, and all
employees ' date of hire was June 1.13
On or about June 15 , the Dents distributed to all their
employees except those classified as LVN (licensed
vocational nurse) and maintenance written notices of new
wage rates, effective June 15 . The new wage rates in each
instance were substantially lower than the previous rates
paid by the McChesneys and the Dents . The notice also
contained a request that each employee not wishing to
remain in the Dents ' employ at the new scale so notify
them.
The Dents made no effort to notify or bargain with the
Union concerning their proposed wage cuts prior to
effecting same.
On June 28 , the Dents notified the unit employees that
"vacations and sick leaves that were accrued through your
former employer cannot be honored" and that, while they
would consider requests for time off, any grant thereof
would be at their discretion and without pay.
In late June , the Dents held a second meeting with the
employees. In the course of the meeting , an employee
asked why the wage cuts were made . Mrs. Dent replied
that the McChesneys had gotten into trouble because
wages were too high. She also stated she heard talk of a
strike and advised the employees if a strike occurred, they
would be replaced.
H. The Union Reaction and Dent Arrangements for
Bargaining
The employees notified Flagg of the wage rate and
vacation policy changes, plus Mrs. Dent's remarks. Flagg
notified Coleman. Coleman instructed Flagg to advise the
employees the changes were illegal.
On June 20, the Dents joined the California Employers
Association and authorized its regional manager , A. Selby
Lewis, to represent them in dealing with the Union.
On June 29, Lewis notified Coleman he would be
representing the Dents in any dealings with the Union. He
and Coleman agreed to meet on July 13.
On June 30, Coleman sent a letter to Lewis confirming
their agreement to meet on July 13 and enclosed a copy of
a contract between the Union and Sacramento Convales-
McChesney-Union contracts
12 Came Myles was listed on the May 15-31 payroll and was not listed
on the June 1-15 payroll There were eight new hires on the latter payroll.
13 The Dent claim of unawareness of the wage rates of CCH employees
covered by the McChesney-Union contract until the July 13 Dent-Union
meeting is rejected. Not only was their administrator in possession of these
rates (Mrs Dent conferred with Mrs Puch prior to the changeover and had
to be concerned over labor costs), but they showed their awareness of such
rates by their comments that wage scales were under review and that
previous wage scales were too high.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cent Hospital (another McChesney operation represented
by the Union).14 In the letter, Coleman also told Lewis the
Union wanted a general wage increase of 15 cents over the
pre-June 15 rates` for the following 2 years, an increase in
the hospital program contribution to $15 a month, and
adoption of a pension program.
1. The July 13 Dent-Union Meeting
At the July 13 meeting, the Union was represented by
Coleman, Nina Tull (the Union's steward at CCH), and a
second CCH employee, Diane Lofgren. The Dents were
present for management, plus Lewis and his assistant,
Bruce Burgundy.
Lewis opened the meeting by stating he was representing
the Dents, that they were willing to recognize the Union,
and that they were there to negotiate a contract."from
scratch." Coleman responded with the statement he
believed they should start from the terms established under
the McChesney regime and wanted to bargain up from
there. Coleman also stated the wage cuts should be
restored. Lewis repeated his position that negotiations
should start from "scratch" Coleman advised Lewis the
Union felt the wage cuts were a violation of law; that the
Company was obligated to maintain preexisting wage rates
and conditions pending bargaining over changes therein
and the Union would file charges if they were not restored.
Lewis replied he was there to negotiate a contract and was
willing to pay the prevailing wages in the area, which the
Dents had ascertained as a result of a wage survey. After a
union caucus, during which Coleman suggested the
Committee see what the Dents were prepared to offer,
Coleman and Lewis agreed to see where they could agree,
using the CCH-Union 1970-73 contract as a guide.
The parties started from the beginning of the contract.
They agreed to changes in paragraph A, substituting the
Dents as the owners and operators of the facilities covered
by the contract. With respect to paragraph B, Lewis stated
he wanted a different management rights clause. Coleman
suggested that Lewis prepare one and the Union would
probably accept it. They agreed to section 1, the recogni-
tion provision, unchanged. With reference to section 2,
covering union security and check off, Lewis announced
the Dents were not willing to grant any union security.
Coleman replied if this was Lewis' position there was no
reason to go any further, there would never be agreement
on a contract without the union-security provision. Lewis
replied he agreed there was no point in talking further if
that was the Union's position. Coleman left the room with
the statement he was going to file unfair labor practice
charges.
J. The Strike
On July 29 the union leaders took a strike vote among
CCH's employees represented by them over the Dents'
unilateral wage and benefit cuts 15 and alleged failure to
bargain in good faith on July 19. The strike vote carried.
14 The terms of the Sacramento Convalescent Hospital contract were
identical with those of the CCH-Union contract.
15 Employee hospital-surgical coverage lapsed by virtue of the Dents'
failure to make any contributions to the health program established under
On August 19 the strike began. Handbills to the public
and the members stated that the strike was called because
of the Dents' unilateral wage and benefit reductions. The
picket signs also carried the legend that the strike was over
the Dents' unilateral wage reductions.
While picketing has ceased, it is the Union position that
it is still on strike.
K. Analysis and Conclusions
1. The successor issue
I find and conclude that the Dents were successor
employers to the McChesneys in the operation of CCH.
The Dents took over the same premises upon which the
McChesneys operated CCH; they served the same pa-
tients; they retained the same work force and manage-
ment; and they utilized the same equipment and supplies.
Thus the "employing industry" remained unchanged.
2. The unit and the Union's majority
representative status
By terms of the 1970-73 agreement between the
McChesneys and the Union, the Union was recognized as
the exclusive collective-bargaining representative of all
CCH employees classified as maid , maintenance , kitchen
helper, relief cook , cook, orderly, aide , med. nurse , L.V.N.,
nurse trainee , and ward clerk, thereby excluding the
administrator , any office clerical assistant (s) and registered
nurse(s).
The Dents continued the same classifications in their
employ.
I find and conclude that a unit consisting of CCH
employees classified as maid , maintenance , kitchen helper,
relief cook , cook, orderly, aide, med. nurse , L.V.N., nursing
trainee, and ward clerk , excluding administrators, RN's,
office clerical employees, guards and supervisors, consti-
tutes a unit appropriate for purposes of collective bargain-
ing under Section 9 of the Act.
Twenty-three of the former McChesney employees the
Dents continued in their employ on June 1 authorized the
McChesneys to check off union dues from their May 15-31
wages and remit same to the Union . On May 31, the
McChesneys, by a currently effective contract with some
time to run, were recognizing the Union as the exclusive
collective-bargaining representative of the CCH employees
within the unit described above . It may be presumed that
such majority representative status continued unchanged
on and after June 1 unless such presumption is rebutted.16
At no time on or after June I did the Dents question,
much less rebut, the Union's continued majority represent-
ative status among their employees in the CCH unit. On
the contrary, they recognized the Union as the exclusive
collective-bargaining representative of their employees
within the unit on July 13.
I therefore find and conclude that, at all times pertinent,
the McChesney-Union 1970-73 contract. As noted heretofore , paid sick
leave and vacation programs were also dropped.
1s Barrington Plaza and Tragniew, Inc., 185 NLRB 962.
CHICO CONVALESCENT HOSPITAL 551
the Union represented a majority of the Dents ' employees
at CCH within the unit specified heretofore.
3. The 8(a)(5) Issue
Prior to the Dents' assumption of the CCH operations,
Union Business Representative Flagg informed Mrs. Dent
of the existence of a current contract between the Union
and the Dents' predecessor (the McChesneys), and
requested a meeting to discuss its assumption . Mrs. Puch,
administrator under both McChesneys and Dents, had a
copy of that contract in her possession at the offices of
CCH setting forth the existing wage rates of the CCH
employees covered thereby.
The Dents continued to pay the existing wage rates from
June 1 through June 15 for all employees in the unit.
On the latter date, the Dents made substantial reductions
in the wage rates of all classifications within the unit except
L.V.N. and maintenance, without prior notice to or
bargaining with the Union.
In the case of N.L R.B. v. Burns International Security
Service, Inc., 406 U.S. 272 (1972), the Supreme Court ruled
that, where it was clear a new employer planned to and did
retain his predecessor's employees, he was obligated to
consult with the exclusive collective-bargaining representa-
tive of those employees before fixing the terms of their
employment.17 Since the issuance of that case, the Board
has ruled that, even in the absence of a preconceived plan
to retain all of a predecessor's employees, a successor
employer is nevertheless obligated to consult the Union
representing those employees prior to making any changes
from their initial wages , hours, and working conditions.is
The Dents obviously planned to, and did, continue the
unit employees in their employ following their takeover, in
the same "employing industry." Under the rule of the
decisions cited above, they were therefore obligated to
consult with the Union both prior to fixing the initial rates
of pay of the unit employees and prior to making any
changes therein . They did not do so.
I therefore find and conclude that the Dents violated
Section 8(a)(1) and (5) by their June 15 reductions in the
wage rates of their unit employees without prior notice to
or consultation with the Union.
4. The July 13 bargaining
At the July 13 negotiations, Lewis stated his willingness
to recognize the Union and to negotiate a contract
covering the wages, rates of pay, hours, and working
conditions of the unit employees.
The question, however, is whether his ignoring of the
Union's request that wage rates, etc., be restored to the
levels which existed at the time the Dents assumed
operation of CCH and continued at those levels pending
either agreement or impasse over changes therein proposed
by the parties constituted good-faith bargaining.
In the course of the July 13 meeting Lewis at no time
expressed a willingness to restore the wage cuts made on
17 Also see Bachrodr Chevrolet Co., 205 NLRB No 122 (on remand from
468 F .2d 963 (C A. 7, 1972)).
is Ranchway Inc., 203 NLRB No. 118; Howard Johnson Co., 198 NLRB
No. 98.
June 15 and to bargain over whether such wage rates
should be reduced.
I find and conclude that by Lewis' failure or refusal to
agree to restore the wage cuts and maintain such restored
wage rates pending agreement to changes therein or
impasse , the Dents failed or refused to bargain in good
faith and thereby violated Section 8(axl) and (5) of the
Act.
5. The strike
It is clear from the evidence that both the July 29 strike
vote authorization and the August 19 strike were caused by
the Company's unilateral June 15 wage reduction.
Findings have been entered above that this wage
reduction was an unfair labor practice.
I therefore find and conclude that the strike was an
unfair labor practice strike.
6. The alleged discharges
Immediately upon commencement of the strike, each
striker received from the Dents a notice containing his
name and the following message:
Your next scheduled day to work is August 20, 1972 at
7:00 a.m. If you elect not to come to work as scheduled
we must assume that you have quit your job and
therefore subject to being replaced.
Some of the notices were distributed personally by Mrs.
Dent at the picket line and others were mailed to striking
employees.
The Dents hired replacements as soon as the strike
commenced and CCH continued in full operation.
Two striking employees who unconditionally offered to
return to work after the commencement of the strike were
accepted in their former jobs without question.
On November 17, the Dents sent a written notice to each
employee stating it had come to their attention some
people believed their August 19 notice constituted a
discharge and further stating they wished to notify the
employees this was not correct , they were only subject to
being replaced , but were not discharged , if they did not
report for work on August 20.
I do not find that the August 19 notice was a discharge
notice.19
I therefore find and conclude that the Dents did not
discharge their striking employees on August 19 or
thereafter.
7. The remedial election issue
Originally I was scheduled to hear Case 20-CB-2835
following the hearing in this proceeding . Case 20-CB-2835
contained allegations of unlawful conduct by the Union in
violation of Section 8(bx1XA) of the Act. A settlement
agreement was reached in Case 20-CB-2835 immediately
prior to hearing.
19 The testimony of employee Elam that Mrs. Dent told her she was fired
at the time she handed her the notice is not credited . Elam appeared to be a
biased witness.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated in the instant case that, for the
limited purpose of deciding whether a remedial election
should or should not be ordered and without conceding the
truth of the matters asserted, I could consider the acts
alleged in Case 20-CB-2835 as having been committed by
the Union.
That complaint alleges that , on July 13, Coleman
assaulted Evison Dent at CCH; on August 19, Coleman
and striking employees assaulted employees who crossed
the Union's picket lines ; on August 20, Flagg and various
strikers threw rocks through a window of CCH; on August
23, strikers, in the presence of Flagg, threatened to break
CCH's windows; on August 23, Flagg, in the presence of
the Dents, broke the windows of an automobile driven by
Lewis; on August 24, Flagg threw paint onto employees
attempting to cross the Union's picket line; on unknown
dates in August, and on August 27, Flagg followed
nonstriking employees in his motor vehicle and thereby
intimidated them; on various dates in August, Flagg and a
striking employee assaulted employees of the Dents as they
crossed the Union's picket line; on September 2, strikers
broke the automobile windows of employees who crossed
the Union's picket line; on September 16, Union Business
Representative Lawrence, spit in the face of an employee
crossing the Union's picket line; on various dates in
September, Flagg spit in the faces of employees crossing
the Union's picket line; and on September 18, Flagg
assaulted a security guard in order to restrain him from
performing services for the Dents during the strike.
Ordinarily in a case of this type the Dents would be
ordered to recognize the Union and to bargain with the
Union at its request concerning the wages, rates of pay,
hours, and working conditions of the unit employees. That
remedy is not sought here. Instead, the General Counsel
and the Charging Party seek an order directing an election
in the unit to ascertain if the Union represents a majority
therein . In my judgment, the loss of the traditional remedy
and the substitution of an order directing an election is
sufficient penalty for the alleged misconduct recited
heretofore.20
I therefore reject the contention that no remedial election
should be ordered in this proceeding.
CONCLUSIONS OF LAW
1. At times material the Dents were employers engaged
in commerce in a business affecting commerce with respect
to their operation of CCH and the Union was a labor
organization, as those terms are defined in Section 2(2), (5),
(6), and (7) of the Act.
2. At times pertinent a unit consisting of all of the
Dents' employees at CCH classified as maid , maintenance,
kitchen helper, relief cook, cook, orderly, aide, med. nurse,
L.V.N., nursing trainee, and ward clerk, excluding all
administrators, RN's, office clerical employees, guards and
supervisors is appropriate for collective-bargaining purpos-
es under Section 9 of the Act.
3. At all times since June 1 the Union has represented a
majority of the Dents' employees at CCH within the above
unit.
4. The Dents are successor employers to the McChes-
neys as operators of CCH as the term successor has been
applied in cases of this type.
5. By their June 15 reductions in the wage rates of
employees within the unit set out above without prior
notice to or consultation with the Union, the Dents failed
or refused to bargain in good faith with the Union and
thereby violated Section 8(axl) and (5) of the Act.
6. By their July 13 failure or refusal to restore the wage
rates of the unit employees to their former levels pending
either impasse or agreement with regard to proposals for
changes therein, the Dents failed or refused to bargain in
good faith with the Union and thereby violated Section
8(a)(1) and (5) of the Act.
7. The strike called by the Union against the Dents at
CCH commencing August 19 was caused by the Dents'
failure or refusal to bargain with the Union in good faith as
set forth above and therefore was an unfair labor practice
strike.
8. The Dents did not discharge their CCH employees
who engaged in the strike for so engaging.
9. The allegations contained in Case 20-CB-2835, if
true, do not warrant denial of a remedial election order.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It having been found that the Dents engaged in unfair
labor practices in violation of Section 8(ax1) and (5) of the
Act, I shall recommend that they be directed to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the purposes of the Act . I shall also
recommend that an election be conducted among the unit
employees, at an appropriate time designated by the
Regional Director after the Dents have complied either
with the Board Order or the order of a circuit court
enforcing the Board Order in this case, to determine
whether the Union continues to enjoy majority representa-
tive status within the unit.
In order to make the unit employees whole for losses
they have suffered by reason of the Dents' unfair labor
practices, I shall recommend that the Dents be directed to
restore to the employee classifications affected by their
June 15 reduction in wage rates the wage rates in effect for
those classifications on June 14 , and to continue in effect
those restored wage rates until either the Board certifies
that the Union no longer represents a majority of the
Dents' employees within the unit or, after bargaining with
the Union, the Dents and the Union either have bargained
to an impasse over changes therein or reached agreement
thereon; that the Dents be directed to pay to all employees
within the unit, including unfair labor practice strikers and
their replacements, for all hours worked between June 15
and the date the Dents restore wage rates to their June 14
levels, a sum representing the difference between the rates
w 1 am not finding the acts alleged in the complaint actually occurred, in
line with the stipulation set out heretofore.
CHICO CONVALESCENT HOSPITAL 553
they received during such period and the June 14 rates,
with interest at 6 percent per annum; 21 and that the Dents
be directed to offer the unfair labor practice strikers
reinstatement to their former jobs or, if they no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, if necessary
terminating any replacements hired therein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 22
Evison and Dons Dent, their partners, agents , succes-
sors, or assigns, shall:
1. Cease and desist from changing the rates of pay,
wages , hours, or working conditions of their employees
classified as maid, maintenance , kitchen helper, relief cook,
cook, orderly, aide , med. nurse, L.V.N., nursing trainee,
and ward clerk until and unless the Board has certified that
Service Employees International Union, Local No. 22,
AFL-CIO, no longer represents a majority of said
employees or they have bargained with that Union and
either reached impasse or agreement over changes therein.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to each of the unfair labor practice strikers
immediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges , if necessary terminating any replacements
hired in his former job.
(b) Restore the wage rates in effect on June 14, 1972, for
each classification set out in this Order above.
(c) Make whole each employee whose wages were
reduced by the unilateral wage reduction of June 15, 1972,
in the manner set forth in the section of this Decision
entitled "The Remedy," with interest thereon at 6 percent
per annum.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of pay due under the
terms of this recommended Order.
(e) Post at their Chico, California, facilities copies of the
attached notice marked "Appendix B" 23 Copies of said
notice , on forms provided by the Regional Director for
Region 20, after being duly signed by Evison and Doris
Dent, shall be posted by them immediately upon receipt
thereof, and maintained 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 Dents to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps they have taken to comply herewith.
[Direction of Election omitted from publication.]
21 While the evidence discloses the Dents, in addition to unilaterally
reducing the wage rates of certain classifications , discontinued health and
welfare benefits provided by their predecessor and may have changed other
benefits as well (paid holidays , etc.), since the General Counsel relied solely
on the unilateral wage reduction in his complaint allegations and this was
the only unilateral change litigated at the hearing, I shall not recommend
that the Dents be directed to restore all rights , benefits, and privileges
enjoyed by the unit employees under the McChesneys which were
discontinued , reduced, or otherwise changed by the Dents without prior
notice to or bargaining with the Union.
22 In the event no exceptions are filed 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.
10248 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.
23 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 by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties appeared and had the
opportunity to offer evidence, findings have been entered
that we violated the National Labor Relations Act by
failing to consult with Service Employees International
Union, Local No. 22, AFL-CIO, prior to reducing wage
rates of our employees at the Chico Convalescent Hospital
represented by that Union and by failing to restore those
wage rates to their original levels at the Union 's subsequent
request, thereby causing our employees represented by the
Union to engage in a strike over our unfair labor practices.
As a result of those findings, we have been ordered to do
the following and notify you that:
WE WILL restore to our employees at the hospital the
wage rates which were paid to their classifications prior
to our June 15, 1972, reductions therein.
WE WILL continue in effect those restored wage rates
until either the National Labor Relations Board
certifies that the Union no longer represents a majority
of our employees at the hospital in the unit set out
below or, after bargaining with the Union, we have
reached either impasse or an agreement concerning
changes therein.
WE WILL pay to our employees at the hospital,
including unfair labor practice strikers and their
replacements, for all hours worked by them between
June 15, 1972, and the date we restore to our employees
the wage rates which were paid to their classifications
prior to our June 15, 1972, reduction therein, a sum
representing the difference between the rates of pay
they received during such period and the June 14, 1972,
rates for their classifications, with interest at 6-percent
per annum.
WE WILL offer to all of our employees at the hospital
who went on strike on August 19, 1972, or thereafter
because of our unfair labor practices reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges.
In the event a majority of our employees at the hospital
in a unit consisting of :
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all employees at Chico Convalescent Hospital classified
as maid, maintenance , kitchen helper, relief cook, cook,
orderly, aide, med. nurse , licensed vocational nurse,
nursing trainee, and ward clerk, excluding administra-
tors, registered nurses, office clerical employees , guards
and supervisors as defined in the Act
vote for representation by Service Employees International
Union, Local No. 22, AFL-CIO in a secret-ballot election
conducted by the Regional Director for Region 20 of the
National Labor Relations Board, we shall, at the request of
the Union, meet and bargain with it con . erning the rates of
pay, wages , hours, and conditions of employment of our
employees within that unit.
EvisoN J. DENT AND DORIS
L. DENT, CO-PARTNERS,
D/B/A CMCO
CONVALESCENT HOSPITAL
(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 compliance with
its provisions may be directed to the Board 's Office, 13018
Federal Building , Box 36047 , 450 Golden Gate Avenue,
San Francisco, California 94102 , Telephone 415-556-0335.