Golden Cross Health Care of Fresno

National Labor Relations Board - Board Decisions

Sep 19, 1994

314 N.L.R.B. 1201 (N.L.R.B. 1994)

1201
314 NLRB No. 197
GOLDEN CROSS HEALTH CARE OF FRESNO
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge found, and we agree, that the Respondent became a
successor employer on February 1, 1992. In finding that the Re-
spondent successor’s president, Marlene Robertson, played an active
role at the nursing home during the month of February 1992, the
judge cited, inter alia, the letter written by Leo Barfuss, one of the
two partners in the predecessor Kearney Heights Care Center, Inc.,
to California’s Department of Health Services on February 1, 1992,
designating Robertson as acting director of nursing at the nursing
home. The Respondent excepts, asserting that the letter constitutes
hearsay, not within the exception of Fed.R.Evid. Rule 803(3), as
found by the judge.
We find it unnecessary to rely on Barfuss’ February 1, 1992 letter.
The judge supported his finding that the Respondent controlled the
nursing home during February 1992 with substantial evidence: (1)
the Respondent’s contract with Kearney Heights Care Center, Inc.
afforded the Respondent veto power over changes in operations dur-
ing the month of February; (2) notices posted at the facility on Feb-
ruary 1, 1992, listed Robertson as acting director of nursing and
these notices remained posted for the rest of the month; (3) the Re-
spondent’s counsel, Wilson Clark, informed the Board’s investigator
in his August 1, 1992 letter that Robertson was able to assess em-
ployees’ abilities during the month of February while serving as act-
ing director of nursing in order to determine who would be dis-
charged and who would be retained; (4) the only two employees
hired during February were referred by Robertson from one of her
other nursing homes; and (5) Robertson, herself, told Union Field
Representative Michael Guidry at the end of February that ‘‘she was
just running the place’’ or ‘‘managing [it] temporarily.’’
We also agree with the judge’s finding, for the reasons he states,
that Clark’s August 1, 1992 letter to the Board’s investigator did not
rely on Barfuss’ February 1, 1992 letter.
Accordingly, we find it unnecessary to rely on Barfuss’ February
1, 1992 letter in any way and we see no need to discuss Fed.R.Evid.
Rule 803(3).
Golden Cross Care II, Inc., d/b/a Golden Cross
Health Care of Fresno and Hospital & Health
Care Workers’ Union, Local 250, Service Em-
ployees International Union, AFL–CIO. Case
32–CA–12588
September 19, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On September 23, 1993, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gold-
en Cross Care II, Inc., d/b/a Golden Cross Health Care
of Fresno, Fresno, California, its officers, agents, suc-
cessors, and assigns, shall, take the action set forth in
the Order as modified.
1. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain with
Hospital & Health Care Workers’ Union, Local 250,
Service Employees International Union, AFL–CIO as
the exclusive representative of our employees in the
following appropriate unit:
All full time and regular part-time nursing attend-
ants, certified nursing attendants, dietary aides,
housekeeping aides, laundry aides, janitors and
cooks employed at the nursing and convalescent
health care facility located at 1233 A Street, Fres-
no, California; excluding registered nurses, li-
censed vocational nurses, guards and supervisors
as defined by the Act.
WE WILL NOT effect mass terminations of employees
regarded as less than satisfactory nor otherwise change
any terms and conditions of employment of employees
in the above-described appropriate bargaining unit
without first giving notice to the above-named labor
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless stated otherwise, all dates occurred in 1992.
organization and affording it an opportunity to bargain
about that change.
WE WILL NOT discharge or otherwise discriminate
against any employee to avoid having to deal with the
above-named labor organization as the representative
of employees in the above-described appropriate bar-
gaining unit, nor because of activity or support for that
labor organization or any other labor organization.
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.
WE WILL recognize and, on request, bargain in good
faith with the above-named labor organization, as the
bargaining agent for our employees in the above-de-
scribed appropriate bargaining unit, and embody any
agreement reached in a written contract.
WE WILL, on request by that labor organization, re-
scind all changes in employment terms for employees
in the above-described appropriate bargaining unit that
were made on and after March 1, 1992, and make
whole all employees and benefits funds, with interest,
for any losses incurred as a result of those rescinded
changes.
WE WILL offer immediate and full reinstatement to
all employees in the job classifications of nursing at-
tendants, certified nursing attendants, dietary aides,
housekeeping aides, laundry aides, janitors, and cooks
who were terminated on February 29 and March 1,
1992, dismissing, if necessary, anyone who may have
been hired or assigned to the positions from which
they were discharged or, if any of their positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and WE WILL make them whole for any loss
of pay and benefits they may have suffered as a result
of their discriminatory discharges, with interest on the
amounts owing.
WE WILL notify them that we have removed from
our files any reference to their discharges and that the
discharges will not be used against them in any way.
GOLDEN CROSS CARE II, INC., D/B/A
GOLDEN CROSS HEALTH CARE OF FRES-
NO
David J. Dolloff, for the General Counsel.
James A. Bowles (Hill, Farrer & Burrill), of Los Angeles,
California, and Wilson Clark, of San Dimas, California,
for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Fresno, California, on various dates be-
tween January 12 and 26, 1993. On August 20, 1992,1 the
Regional Director for Region 32 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing, based on an unfair labor practice charge filed on
June 15, alleging violations of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act). Although that
complaint and its underlying charge were subsequently con-
solidated for hearing and decision with the charge and com-
plaint in another case, by order consolidating cases, consoli-
dated amended complaint, and notice of hearing issued on
October 16 that other charge and the complaint arising from
it settled before the hearing’s commencement. Accordingly,
I granted the General Counsel’s motion to sever that charge
and the allegations arising therefrom, leaving for hearing and
decision the allegations arising from the charge in Case 32–
CA–12588.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record, on the
briefs that were filed, and on my observation of the de-
meanor of the witnesses, I enter the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted that since, at least, March 1 Golden Cross
Care II, Inc., d/b/a Golden Cross Health Care of Fresno (Re-
spondent) has engaged in operation of a nursing and con-
valescent health care enterprise at 1233 A Street, Fresno,
California (the facility). In the course and conduct of the fa-
cility’s operation during the first year of operating it, Re-
spondent derived gross revenues in excess of $100,000 and,
moreover, received revenues in excess of $5000 from the
Medi-Care and Medi-Cal programs. Therefore, I conclude,
consistent with paragraph 28 of Respondent’s answer to con-
solidated amended complaint and with its representations at
the hearing’s commencement, that at all times material Re-
spondent 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
At all times material, Hospital & Health Care Workers’
Union, Local 250, Service Employees International Union,
AFL–CIO (the Union) has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case presents issues under the successorship doctrine:
see NLRB v. Burns Security Services, 406 U.S. 272 (1972),
and Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),
arising from Respondent’s acquisition of the facility and of
a license to operate it from the State of California’s Depart-
ment of Health Services (DHS) during the first calendar
quarter of 1992.
As a result of a Board-conducted representation election,
in 1978 the Union became the bargaining agent of certain
employees working at the facility. An ongoing bargaining re-
lationship followed which, most recently, led to conclusion
of a collective-bargaining contract for an effective term of
September 1, 1989, through August 31, 1991, and, thereafter,
to negotiations for a contract to succeed that one. In fact,
agreement was reached on the terms for one during January.
1203GOLDEN CROSS HEALTH CARE OF FRESNO
However, before it could be executed, the events giving rise
to the facility’s most recent change in ownership intervened.
Nevertheless, the record shows that immediately prior to
February 1 there had been a viable and ongoing collective-
bargaining relationship with the Union as the collective-bar-
gaining agent of certain facility employees.
There was some confusion regarding precise composition
of the collective-bargaining unit. No one disputes that as of
1992 it had included nursing attendants, certified nursing at-
tendants, dietary aides, housekeeping aides, laundry aides,
janitors, and cooks. Nor is it disputed that registered nurses
and licensed vocational nurses had been excluded from the
unit. But, while it is not disputed that regular part-time em-
ployees have been historically included in the unit, there was
some discrepancy about the number of hours needed to qual-
ify for regular part-time status.
William Clark, one of Respondent’s attorneys, testified
that he had learned on February 29 that employees working
‘‘less than 16 or 30 hours in a pay period’’ were not in-
cluded in the unit. However, both the 1989–1991 contract
and the draft of a contract to succeed it contain an identical
provision, section 8, subsection B, defining a regular part-
time employee ‘‘as one who works a regular predetermined
work schedule of less than thirty-two (32) hours per week
but not less than twenty (20) hours per week,’’ and continues
on to provide for proration of their contractual benefits
‘‘based on average hours worked.’’
Operations at the facility had been troubled during, at
least, the latter 1980s and early 1990s. Indeed, in a position
statement submitted to the Board’s Regional Office on Au-
gust 1, Attorney Clark pointed out ‘‘that the subject facility
has in the past six years undergone six changes in either cor-
porate ownership, management, licensee or combinations
thereof.’’ His letter continues:
Prior to March 1, 1992 the aforesaid changes were
characterized by fiscal failure, decertification and
threatened decertification and serious citations and
heavy fines by DHS, primarily because of inferior pa-
tient care and deficiencies in dietary and overall facility
maintenance.
As described in section IV, infra, Clark testified that certain
other statements in that letter had been incorrect. However,
he did not similarly retract or correct his above-quoted por-
trayal of the facility’s difficulties during the over half decade
prior to early 1992. To the contrary, the various changes
mentioned in Clark’s letter are detailed in the ‘‘RECITALS’’
section of an agreement to terminate lease, received as Re-
spondent’s Exhibit 2.
The crucial point of those transactions is that by January
a limited partnership, MG Associates, owned the facility’s
premises, as well as its fixtures and equipment. Kearney
Heights Care Center, Inc., a partnership of James E. Majerus
and Leo J. Barfuss, was the facility’s lessee, pursuant to an
agreement dated April 12, 1990, with a written guarantee of
performance by Majerus and Barfuss, dated May 21, 1990.
Management of the facility was being performed by Leo C.
Loevner, president of American Nursing Centers, Inc. Appar-
ently, Loevner also had an interest in a corporation called
Fresno 1233, Inc., to which Kearney Heights had tried to
transfer lease rights on June 1, 1991, and, further, which
Kearney Heights had retained to manage the facility by
agreement of that same date. However, MG Associates had
‘‘not consented to nor approved either agreement’’ between
Kearney Heights and Fresno 1233, Inc. Apparently in con-
sequence, that is why Loevner still managed the facility at
the beginning of 1992 through American Nursing Centers,
Inc.
By then, interest in acquiring the facility had been dis-
played by Marlene Robertson. She had come to work in this
country, apparently from the Philippines, and had worked as
a registered nurse. In 1991 she acquired ownership of a Pasa-
dena, California convalescent center called Golden Cross
Health Care. Six years later she became part-owner of Good
Shepherd Convalescent Center in Lake View Terrace, Cali-
fornia, also in the Los Angeles area. She testified that she
was not particularly conversant with labor-management rela-
tions. She had been a union member while working as a reg-
istered nurse, but there is no evidence of any specific union
activity by her, beyond holding union membership, during
that period. Moreover, she testified that employees at neither
the Pasadena nor the Lake View Terrace facilities had been
unionized when she had acquired her ownership interest in
those centers. Nor had employees at either one become
unionized by the time of the hearing in this proceeding.
During the late winter or early spring of 1991 Robertson
came to Fresno ‘‘to see the facility.’’ While there she con-
ducted a meeting with the facility’s staff, alerting them to her
interest in acquiring the facility. She acknowledged that, dur-
ing that meeting, someone asked me a question about the
Union.’’ In fact, there is no dispute about Robertson’s
prepurchase knowledge regarding the unionized status of cer-
tain facility employees. She freely admitted that, when she
purchased the facility in 1992, she had known that nursing
attendants, certified nursing attendants, housekeeping, main-
tenance, laundry, cooks, and dietary aides were represented
by the Union.
As it turned out, the deal fell through in early 1991; Rob-
ertson did not then acquire the facility. However, she did not
abandon her efforts to do so. Articles of incorporation for
Respondent were issued to Robertson, as incorporator, by the
State of California on June 14, 1991. As far as the record
discloses, at no point did she contemplate that, once incor-
porated, Respondent would operate any business enterprise
other than the facility. On January 31, she executed a lease
with MG Associates for ‘‘the premises and personal prop-
erty’’ of the facility. On that same date she executed an
agreement with Kearney Heights Care Center, Inc. to ‘‘take
over operation of the facility.’’ Effectiveness of both docu-
ments was contingent on Respondent acquiring a license
from DHS to operate the facility. Robertson completed her
filing of application for one on February 10. That license ul-
timately issued on March 1, although Robertson had known
earlier during February that it would issue on that date. In
fact, she advanced internally contradictory testimony regard-
ing that particular subject.
Called as an adverse witness by the General Counsel, she
first testified ‘‘I cannot recall’’ if she had requested, of the
DHS official with whom she had dealt, that the license issue
on that date: ‘‘ don’t recall. So talk to her about telling her
to issue the license on that date.’’ Subsequently, she testified
that she had spoken with a different DHS official and denied
having told him that she wanted the license to issue on
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
March 1. But when called as a witness by Respondent and
asked when she had first known that a license would issue
on March 1, she responded, ‘‘That’s what I requested is
March 1,’’ adding, ‘‘In my application for license, I had
written it March 1—’’ and, further, ‘‘That’s a standard appli
[sic]—when you apply for a license you have to put the
change of ownership.’’
The evidence shows that during February, receipts from
and payments for the facility’s operations continued to be re-
ceived and paid by Kearney Heights. But, during that month
several sequences of events unfolded. First, as discussed at
greater length in section IV, infra, there were communica-
tions between Robertson and supervisors at the facility. At
her direction some of those supervisors selected employees
who would and who would not be employed by Respondent
on and after March 1. By fax, in late February Robertson
was provided with a list of employees to be retained.
Second, on February 4, during a meeting with Robertson,
Attorney Clark prepared terms for an offer of employment.
When finalized, it was presented, on and after February 29,
to each of the employees whom Respondent was willing to
continue employing after that date. Although existing wage
rates would continue to be paid, the offer enumerated terms
that constituted changes in pre-March 1 employment terms,
such as for holidays, vacations, and sick leave. Importantly,
that offer specifically recited that those benefits would not be
available until employees ‘‘completed their [90-working day]
probationary period.’’ Respondent does not deny that it never
communicated with the Union about these changes before
they were presented to employees on February 29 and were
implemented on March 1.
Third, Respondent did not attempt to communicate with
the Union during February. But, the latter made efforts to do
so with Respondent. Prior to February Union Field Rep-
resentative Michael Paul Guidry had been attempting to ne-
gotiate a contract to succeed the 1989–1991 one. As a result
of telephone conversations and written communications with
his opposite representative, Attorney Daniel T. Berkley,
Guidry was told that Loevner was no longer managing the
facility—Co-owner Majerus testified that, during January,
Loevner had said that he was leaving and never coming
back—and that there was a new owner. By letter dated Feb-
ruary 4, to Guidry, confirming an earlier telephone conversa-
tion, Berkley stated, ‘‘that on or about [January 30], Amer-
ican Nursing Centers, Inc., ceased to be managers of
Kearney Heights Care Center. It is our information that some
other entity is currently managing the facility.’’ On that same
date, responding to the conversation that Berkley’s letter con-
firmed, Guidry sent a letter to Berkley, Loevner, and Facility
Administrator John Ralff. In it, Guidry stated that it had
‘‘come to the attention of Local 250, that a change of
ownership/management has taken or is about to take place.’’
The letter continues by stating that the Union ‘‘hereby de-
mands that you enter into negotiations with us over the im-
pact of the change on bargaining unit members and to settle
outstanding grievances.’’
Receiving no response to that letter, Guidry journeyed to
DHS’ office where he reviewed available documents per-
taining to the facility, including those naming Robertson and
Respondent. He then prepared another letter, dated February
25, which he addressed to Barfuss, Ralff, Majerus, and Rob-
ertson. In addition to mailing copies to those addressees, on
that same date he took a copy to the facility where he hand-
delivered it to Administrator Ralff. While he was still at the
facility, after having given the copy to Ralff, Guidry testified
that ‘‘Ralff indicated to me that he’d given [Robertson] one
[of the letters].’’ At another point Guidry testified, ‘‘John
Ralff told me that he would give a copy to Marlene.’’ There
is no discrepancy, however, about the facts that Robertson
had been at the facility that day, that she spoke with Guidry
near the end of the workday, that she acknowledged having
seen a copy of his letter, and that she declined to discuss the
subject at that time because she was hurrying to leave Fresno
to return to the Los Angeles area. Robertson testified that she
had ‘‘told [The office] to fax [Guidry’s letter] to Bill Clark’’
and that ‘‘I told Mr. Clark that whatever is the law, and
proper to handle, you handle it for me.’’
Clark testified, however, that ‘‘it was sometime in March
that I saw a copy of’’ Guidry’s February 25 letter and, more-
over, that he chose not to respond to it. No one from ‘‘The
office’’ testified to having faxed Guidry’s letter to Clark on
February 25, nor, for that matter, on any other date during
the remainder of February.
On Saturday, February 29, Robertson and Clark, accom-
panied by several Pasadena employees, drove from Good
Shepherd Convalescent Center to Fresno. Following their ar-
rival at the facility, employees who were not to be retained
on and after March 1 were notified of that fact, some in per-
son and others by telephone. Personnel who were to be re-
tained each received an offer of employment to be signed,
signifying acceptance of its terms, or not signed as each re-
cipient saw fit. So far as the evidence shows, none of the
employees presented with an offer declined to execute it.
Equally significant was Clark’s testimony describing his
own activities at the facility that day. He testified that, on
arriving at the facility, he had ascertained more precisely the
scope and composition of the bargaining unit, which had not
been completely clear to him before then. He made two lists,
one of unit employees to be retained and the other of those
who would not be retained. ‘‘And I came up with a 24–26
number. 24 to be, and 26 not to be’’ retained, according to
Clark, ‘‘And both lists had some questionables as to part
timers and how much, how many hours they worked, that
sort of thing. But 24–26 is what I came up with.’’
He further testified that ‘‘I then, I sought out Marlene,’’
and after ascertaining from her that she intended to hire re-
placements for the 26 employees not to be retained and that
she intended to hire 2 extra maintenance employees, ‘‘I ex-
plained to her the numbers situation that it appeared that . . .
we might be in a situation where we couldn’t and did not
have to bargain with the [U]nion.’’ However, Clark also tes-
tified that he had not made a firm determination concerning
Respondent’s bargaining obligation until ‘‘late March, pos-
sibly early April’’ when ‘‘I saw the hiring patterns . . . and
I saw that there was somewhere in probably early April a
[sic] establishment of a reasonable work compliment of peo-
ple that indicated the numbers were such that the [U]nion
was in a minority status.’’ Yet, despite his uncertainty about
the Union’s majority status for, at least, most of March,
Clark made no effort to communicate with the Union regard-
ing recognition and bargaining for employees of the facility.
In the context of the foregoing sequence of events, the
General Counsel alleges that Respondent has been a succes-
sor employer of Kearney Heights Care Center, Inc. and ad-
1205GOLDEN CROSS HEALTH CARE OF FRESNO
vances alternative theories to show, argues the General
Counsel, that Respondent violated Section 8(a)(1), (3), and
(5) of the Act. The more narrow one is the somewhat con-
ventional theory that, in an effort to avoid having to recog-
nize and bargain with the Union, Respondent jockeyed the
unit employee selection process so that less than a majority
of Kearney Heights Care Center, Inc.’s former employees
would be employed in unit classifications on and after March
1. In fact, aside from the number of unit employees retained
on and after that date, there is no dispute that throughout the
first 3 months of 1992 the same operations for the same pa-
tients and classes of patients had been conducted at the same
location, with essentially the same equipment and immediate
supervision.
Less frequently encountered is the General Counsel’s
broader alternative theory that, in fact, Respondent had con-
trolled operation of the facility since February 1 and, as the
effective employer from that earlier date, had actually be-
come the successor employer on February 1, retaining that
status thereafter as the Union made demands for continued
recognition and bargaining, post-March 1 employment terms
were formulated, and unit employees were selected for what
had been in reality termination.
For the reasons discussed above, there is no inconsistency
between those two theories in the context of the facts of the
instant case. I conclude that a preponderance of the credible
evidence supports both of them. That is, it shows that Re-
spondent actually began managing the facility on February 1,
as it awaited issuance of its license to do so, but that it failed
to continue recognizing and bargaining with the Union, de-
spite requests that it do so. Also, after February 1 it formu-
lated new employment terms and then implemented them
without prior notice to the Union and without affording it an
opportunity to bargain about those changes. Finally, as the
effective date for the license loomed, Respondent reduced the
number of incumbents in unit job classifications as a shield
to subsequent application of the successorship doctrine that
would oblige it to recognize and bargain with the Union,
using the date of license issuance to disguise its actual prior
management and operation of the facility.
IV. DISCUSSION
Although not arising frequently, the General Counsel’s
second, broader, alternative theory is not without precedent.
That is, there is authority for the proposition that
successorship can occur during a transition period after final-
ization of an enterprise’s purchase, but before ownership or
entrepreneurial control actually changes hands. Any ‘‘asser-
tion that ‘there cannot be successorship without ownership’
is contrary to the law,’’ inasmuch as an acquiring ‘‘employer
may be subject to successorship obligations despite the fact
that there has been no transfer of title to the assets.’’ East
Belden Corp., 239 NLRB 776, 791 (1978), enfd. mem. 634
F.2d 635 (9th Cir. 1980), and cases cited there.
That is so because the successorship doctrine exists not as
a mere consequence or incident of ownership interest. Rath-
er, that doctrine promotes the statutory policy of avoiding, or
at least minimizing, industrial strife to facilitate the flow of
commerce. NLRB v. Burns Security Services, supra. That pol-
icy could be frustrated, or even negated completely, if ac-
quiring employers could avoid successorhip obligations and
create a new status quo in employment terms by simply tak-
ing control of enterprises before prospective ownership
changes occur, making changes under the guise of prede-
cessors’ action, and, then, once the ownership changes occur,
confronting bargaining agents with purportedly preexisting
employment terms and conditions. ‘‘The Board’s traditional
test for successorship status . . . is whether there is con-
tinuity in the employing enterprise.’’ Petoskey Geriatric Vil-
lage, 295 NLRB 800, 802 (1989). If such continuity is being
maintained by an acquiring employer during an interim or
transition period before ownership actually changes hands,
then that acquiring employer is obliged during that interim
or transition period to observe statutory bargaining obliga-
tions imposed under the successorship doctrine.
Having said that, it must also be said that caution should
be exercised in evaluating acquiring employers’ pre-
ownership conduct and activities whenever there is an in-
terim or transition period between agreement to acquire and
actual acquisition, as there likely will be whenever ownership
changes of enterprises of any size. Obviously, acquiring em-
ployers will need to take some actions to, at least, ensure a
smooth transition and, certainly, to ensure that the value of
the enterprise is not diminished during any interim or transi-
tion period. For example, there is nothing so unusual in an
acquiring employer’s preownership review of an entity’s per-
sonnel files or in tally of equipment and inventory that it can
be concluded, of themselves, such conduct demonstrates that
preownership successorship has arisen. Nor can it be said
that one arises merely because an acquiring employer in-
spects the premises and lays plans for subsequent improve-
ments to them.
Explaining its decisions in East Belden Corp., supra, and,
later, in Sorrento Hotel, 266 NLRB 350 (1983), where a new
lessee executed an interim management agreement to operate
an entity while awaiting commencement of a long-term lease
to operate it, the Board has pointed out that, ‘‘The salient
facts . . . triggering successorship status . . . were written
agreements to purchase [in East Belden] or lease [in Sor-
rento] and an escrow or interim management period offi-
cially established for the prospective buyer or lessee to take
control.’’ Fremont Ford, 289 NLRB 1290, 1294 (1988). As
described in section III, supra, on January 31 Respondent did
execute an agreement with Kearney Heights Care Center,
Inc. to take over the facility’s operation and, on that same
date, an agreement with MG Associates to lease the facility’s
premises and personal property. Consequently, as in East
Belden and Sorrento, prior to February 1 written agreements
existed for permanent occupation and operation of the facility
by Respondent.
To be sure, neither the agreement nor lease became effec-
tive on execution. Each was conditioned on Respondent’s ac-
quiring a license from DHS to operate the facility. Yet, in
the circumstances, it appears to have been a mere formality
relatively certain to occur. As pointed out in section III,
supra, Robertson is experienced in nursing. By January 31,
she had operated a similar enterprise in Pasadena for a dec-
ade and a like one in Lake View Terrace for almost half a
decade. For at least half a year she had laid careful plans for
the facility’s acquisition by Respondent, as shown by its in-
corporation during June 1991 in apparent anticipation that it
would acquire and operate the facility. Given Robertson’s ex-
perience in the profession and in the industry and, further,
given her seemingly meticulous preparation for the facility’s
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 There is limited evidence that, in the past, Robertson had been
denied a license to operate a convalescent home in Bakersfield, Cali-
fornia. However, there appears to be significant differences between
denial of that license and her application for a license to allow Re-
spondent to operate the facility. For, at the time of her Bakersfield
license application, that home had been subject to bankruptcy pro-
ceedings. Further, in contrast to the situation here, Robertson ac-
knowledged, ‘‘We did not have the agreements to buy [the Bakers-
field home] at that time.’’ Consequently, the two situations, that of
the Bakersfield home and of the facility, are not comparable. In fact,
Respondent has presented no evidence that any factor pertaining to
Robertson, as an operator, had led to denial of the Bakersfield home
license. Nor has it presented evidence that any problem relating to
the Bakersfield situation had existed with respect to the license ap-
plication for the facility.
acquisition, there seems ample basis for concluding that, as
of January 31, securing a license to operate the facility had
been, and should have been, viewed as a relative certainty.2
Inasmuch as Respondent possessed written agreements to
lease the facility and to become its operator, and since it can
be said that there was at least a respectable certainty that
Robertson would surely secure a license from DHS for Re-
spondent to operate it, attention must shift to whether a pre-
ponderance of the evidence shows, as contended by the Gen-
eral Counsel, that Respondent actually controlled and was
managing or operating the facility during February. Unlike
the situation in Sorrento, there is no evidence of any written
agreement for Respondent to manage or operate the facility
prior to March 1. However, the General Counsel does point
to portions of four documents which, he argues, evidence ac-
tual control and managerial authority of the facility on and
after February 1. First, article 1.3 of Respondent’s agreement
with Kearney Heights Care Center, Inc. provides expressly
that the latter ‘‘will not issue any instructions which would
change the orderly operations of the facility without prior ap-
proval of [Respondent’s] personnel.’’ Standing alone, that
provision might be said to accomplish no more than preser-
vation and protection of an acquiring employer’s interests
from acts by a seller that reduce or diminish an entity’s
worth and viability before the actual change of ownership.
Nevertheless, the provision did afford a measure of control
to Respondent over the facility during February. More impor-
tantly, it does not stand alone in the instant case.
By letter dated February 1, the day after Robertson had
executed the agreement and lease, Kearney Heights Care
Center, Inc.’s copartner, Barfuss, notified DHS, ‘‘Effective
February 1, 1992 (Saturday), the following administrative
changes have been made’’ at the facility. The letter then
states that ‘‘Mr. John Ralff has been appointed Administrator
at the [F]acility’’ and that ‘‘Mrs. Marlene Robertson, RN has
been appointed Acting Director of Nursing.’’ Under Cal.
Admin. Code Tit. 22, § 72327, ‘‘The director of nursing
service shall have, in writing, administrative authority, re-
sponsibility and accountability for the nursing services within
the facility.’’ Respondent acknowledged that § 72327 applies
to the facility’s director or acting director of nursing. How-
ever, Robertson denied that she had ever been appointed to
that position and further denied that she had occupied it at
the facility during February. Yet, a series of problems con-
front the reliability of her denials.
In the first place, neither Majerus nor Barfuss, the copart-
ners of Kearney Heights Care Center, Inc., could testify con-
cerning the circumstances that had led the latter to prepare
and transmit to DHS the February 1 letter. For over a year
Majerus had been no more than a silent partner who was not
consulted about decisions pertaining to the facility. Barfuss
had passed away before the hearing had commenced. Never-
theless, the latter’s letter does notify DHS that Robertson
would be, in effect, exercising ‘‘administrative authority, re-
sponsibility and accountability for the [facility’s] nursing
services,’’ by far the largest number of employees working
there, and, as such, does constitute substantive evidence of
that fact, as a statement of ‘‘then-existing state of mind’’
within the meaning of Federal Rule Evidence 803(3). In fact,
as that letter also recites, Ralff did become the facility’s ad-
ministrator on February 1.
Second, the accuracy of Barfuss’ letter, and the
unreliability of Robertson’s denial of service as acting direc-
tor of nursing at the facility during February, are reinforced
by a third document: a notice posted on the bulletin board
and, as it turned out, left at each nursing station on February
1. It recites:
Effective 2–1–92
Administrator John Ralff 226–7533
Nursing 1) Beeper 488–9424
Marlene Robertson RN 2) Hand Phone 818–404–6853
3) Talk or message #213–
353–2012
4) Beeper #818–410–4322
Claudia Bell—275-2485
Barbera [sic] Cleason—432–8941
All Dept. Head # Are As Posted
As one after another of Respondent’s witnesses testified,
each denied having prepared, or even having seen, that no-
tice. Furthermore, while acknowledging that she had a beeper
and hand phone and, also, that 818–404–6853 is her hand
phone’s correct number and that 213–353–2012 is ‘‘my
beeper number,’’ Robertson denied that 488–9424 is the cor-
rect number for her beeper and that 818–410–4322 had been
the correct number for her beeper in February—‘‘I do not
recognize this beeper.’’ She further denied that 818–410–
4322 had been her phone number, at all. But, witnesses had
been sequestered and Director of Staff Development
Clytemnestra Bell was called as Respondent’s witness after
Robertson had testified for it. Bell freely acknowledged hav-
ing prepared, posted, and distributed to each nurse’s station
the above-quoted notice on February 1. Further, during cross-
examination, she testified expressly that she had been given
the phone numbers listed for Robertson by Robertson, her-
self: ‘‘She was in the facility on February first, she gave me
the numbers, I put them there, okay.’’
In fact, Robertson and other witnesses for Respondent did
agree that Robertson had acted as registered nurse, but not
as director nor acting director of nursing, for the facility on
February 1. They testified that the director of nursing service
need not be present on weekends, that only a registered nurse
need be on duty, that no registered nurse had appeared for
duty on Saturday, February 1, that one or more state officials
had shown up at the facility that day, and that, overhearing
queries about the required registered nurse, Robertson had
said that she was serving in that capacity that day. Yet, that
explanation is not without its problems.
1207GOLDEN CROSS HEALTH CARE OF FRESNO
Certainly, it does not account for Barfuss’ notifying DHS
on that same date that Robertson would be serving as the fa-
cility’s acting director of nursing. So far as the record dis-
closes, he had not been aware of any problem involving a
missing registered nurse at the facility that day. Moreover,
while a director of nursing service must be a registered
nurse, there is a difference between the two: not all reg-
istered nurses are directors of nursing service. Yet, it had
been as the latter that Barfuss had notified DHS that Robert-
son would be serving, on an acting basis, as of February 1.
Nor does the explanation advanced by Robertson and by
Respondent’s other witnesses account for why Los Angeles-
area telephone numbers would have been included on Bell’s
above-quoted notice. Had Robertson truly been filling in for
only that single day, when she had already been in Fresno,
there is seemingly no need for having listed on the notice
numbers at which she could be reached after she returned to
the Los Angeles area. However, Ralff conceded that ‘‘818
area code certainly would be down in that area.’’
The notice posted on one bulletin board remained there for
a significant portion of February, as shown by Field Rep-
resentative Guidry’s description that he had gotten it off
there and had made a copy of it ‘‘around the 25th of Feb-
ruary . . . or . . . a week or so earlier.’’ Indeed, after he
returned the notice to that bulletin board, there is no evi-
dence that it later had been removed on any day during Feb-
ruary. Yet, if its information regarding Robertson’s role at
the facility had not been accurate, the notice was publishing
inaccurate information to the facility’s employees, as well as
to patients and the public.
Administrator Ralff, as well as Respondent’s other wit-
nesses, testified that a series of individuals, other than Rob-
ertson, had served as the facility’s director of nursing service
during February: Faley Mejia for a few days during the early
part of that month, Hines Joswig later that month, and Betty
Ralff off and on during the month. However, no notice simi-
lar to that posted by Bell on February 1 was produced. If it
had been important on that single date for the staff to know
of Robertson’s role, as Bell testified, surely it would have
been no less important for the staff and patients to be made
aware of the presence and communication numbers of others
serving in that same capacity, if they had truly done so, later
that month.
Equally telling was Respondent’s failure to produce copies
of any letters to DHS, similar to that of February 1, giving
notice of Robertson’s appointment as acting director of nurs-
ing service, notifying DHS of appointment of a director or
acting director other than Robertson. Bell admitted that the
facility was obliged to notify DHS of changes in the director
of nursing service. Although Ralff claimed that DHS had
been notified of Joswig’s appointment to that position and
asserted that DHS should have that document in its files—
adding conveniently ‘‘and I notified them by telephone that
my wife [Betty Ralff] was also an interim admin [sic] or di-
rector during that period in the interim’’—Respondent pro-
duced no copy of a letter to DHS appointing Joswig, nor, for
that matter, Mejia.
California Administrated Code Title 22, § 72327(a) re-
quires that the director of nursing service ‘‘be employed
eight hours a day, on the day shift five days a week.’’ To
support its argument that Robertson had not actually occu-
pied that position during February, Respondent’s witnesses
testified that she had not been at the facility during that
month ‘‘eight hours a day, on the day shift five days a
week.’’ However, read literally, § 72327(a) does not require
actual presence, but only employment, leaving open an inter-
pretation that availability, but not actual presence, would suf-
fice for compliance. If that were a correct interpretation, of
course, it would explain why Bell had included Los Angeles
area telephone numbers for Robertson on the notice posted
and distributed on February 1.
Even if actual presence is required by California Adminis-
trated Code Title 22, § 72327(a), that requirement would
have been satisfied by appointing someone else to fill in for
Robertson on days when the latter was not present at the fa-
cility. Thus, the presence of Mejia, Joswig, and Betty Ralff
would appear to provide the required immediate presence,
while Robertson maintained the ongoing overall responsi-
bility during February. Significantly, neither Mejia nor
Joswig appeared as witnesses, though there was no represen-
tation that either was not available to testify regarding their
arrangement for service at the facility in February. What is
clear is that, during February, Joswig had been no more than
a trainee for director of nursing service. More importantly,
after his retention in that capacity, he had left the facility and
did not return there again for the remainder of that month.
Accordingly, he spent even less time there than had Robert-
son during February.
In that respect, she testified that she had been at the facil-
ity on ‘‘February 1 and 2, and then sometime on 8 and 9
and then 23 and 24. Then the 29th.’’ Yet, she must also have
been there on February 25, as well, since Guidry had en-
countered her there on that day when he had delivered his
letter bearing that date to Ralff and had attempted to speak
with her about bargaining, as described in section III, supra.
In fact, Robertson ultimately agreed that she had been at the
facility a number of times, adding hastily, ‘‘To observe.’’
But, she never explained exactly what she had been observ-
ing and, in fact, there had been yet one additional day that
Robertson certainly had been in Fresno, if not at the facility.
She, as well as Administrator Ralff and Office Manager Bar-
bara Cleason, described a meeting in Fresno that started with
breakfast at Denny’s and then extended through lunch at
Brooks Ranch. In fact, Ralff testified, ‘‘We met all day
long.’’ Clearly, that meeting did not occur on one of Robert-
son’s above-enumerated dates. For, while she testified that it
had taken place during the first week of February, Cleason
also testified that it had been ‘‘later than’’ February 1 and
2. Further, Ralff testified that they had not gone to the facil-
ity that day, which would also eliminate Saturday, February
8, and Sunday, February 9, because Robertson testified that
she had been at the facility on both those dates.
The crucial point about that meeting, at this stage of dis-
cussion, is that it illustrates that Robertson had one alter-
native means for exercising management and control over the
facility, without actually having to set foot on its premises—
through the supervisors who did work on those premises.
Aside from offsite meetings, communication with them was
possible by telephone and by fax. In fact, Respondent’s wit-
nesses described communications by both means with Rob-
ertson during February. Furthermore, it is approximately only
a 4-hour drive to Fresno from Los Angeles, as shown by
Clark’s description of the February 29 trip from Lake View
Terrace to Fresno. Thus, it was possible for Robertson to rel-
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
atively quickly reach there from Los Angeles, should that be-
come necessary. In sum, Robertson’s lack of actual presence
at the facility for ‘‘eight hours a day, on the day shift five
days a week’’ during February is not so compelling a refuta-
tion of the evidence that she had acted as director of nursing
service during that month, as Respondent now seeks to por-
tray.
Even more compelling as evidence of Robertson’s actual
involvement in the facility’s February management and oper-
ation is provided by the General Counsel’s fourth document:
Attorney Clark’s August 1 letter to the Regional Office’s in-
vestigator. In addition to the portion quoted in section III,
supra, that letter states:
While serving as DON Robertson was able to assess
the abilities of the staff and to confer with staff mem-
bers as to the desirability of retaining (or not) employ-
ees and staff of Kearney. Based on her observations
and the recommendations of others, Robertson decided
that a number of workers would not be offered employ-
ment.
However, when he appeared as a witness, Clark testified that
he had made those statements before having conferred with
Robertson and solely on the basis of Barfuss’ February 1 let-
ter to DHS, which had been transmitted to him by Cleason.
In other words, testified Clark, ‘‘I made the assumption that
because Mrs. Robertson was appointed in the letter as DON,
that that’s what she did.’’ Yet, in the circumstances, that ex-
planation does not truly nullify the above-quoted statements
in his letter.
In the first place, Clark testified that after sending that let-
ter he had been alerted that the General Counsel was consid-
ering pursuing the alternative theory that Respondent had
controlled the facility since February 1. He testified that it
had been then that he first had discussed his letter with Rob-
ertson, at which time she had told him that she had not
served as director of nursing service and had not selected
employees to be retained after February 29. But, there is no
basis for placing any greater reliance on her statements to
Clark than on her testimony when she appeared as a witness
in this proceeding. And she did not appear to be testifying
candidly. Instead, as illustrated at various points throughout
this decision, she seemed to be responding to particular ques-
tions with answers intended solely to buttress Respondent’s
position. As a result many of her answers were internally
contradictory and others were inconsistent with other evi-
dence presented by Respondent. Having been alerted as to
the General Counsel’s possible alternative theory, there is
every basis for inferring that she would try to provide an al-
ternative explanation for events, to those recited in Clark’s
August 1 letter, to extricate herself from potential liability.
Second, as set forth in section III, supra, Clark had accom-
panied Robertson’s group to the facility on February 29.
Aside from ascertaining the Union’s representative status in
light of the employees who were and who were not to be
retained, he testified that he also wanted to ensure that none
of the selection decisions had been motivated by unlawful
considerations. So, testified Clark, ‘‘I kind of cross examined
Mrs. Robertson as to her knowledge of numbers and whether
or not there was something that was planned.’’ More specifi-
cally, he testified, ‘‘I asked her if the decisions with respect
to the employment of these people were biased in any way,
be it because of the union situation or any other protected
status. She said no.’’ Clark further testified that he then had
pursued that same line of inquiry with Bell, ‘‘relat[ing] the
same sort of thing to her.’’
So thorough had Clark regarded his examinations that day
that, in response to charges of discrimination filed with the
State of California, concerning failure to retain certain em-
ployees after February 29, he stated in his response, ‘‘The
final decisions were made by me.’’ He explained that he had
made that statement because on February 29, ‘‘I was fully
prepared if I wasn’t satisfied to overrule with respect to indi-
viduals. And so based on that final conversation that I had
with [Bell] and with Mrs. Robertson, I felt that I had been
in some way been putting my final approval on that deci-
sion.’’ If that is the fact, Robertson’s actual role in the selec-
tion process should have become clear to Clark when he
‘‘cross examined’’ her, as well as Bell, on February 29. That
is, if, as she now claims, it had been the department heads,
not her, who had made the selections, Clark would have
learned that through his February 29 cross-examination. It
follows that he would not have made the statements that he
did on August 1 unless they were an accurate description of
what he had learned on February 29. In sum, it is a fair con-
clusion that his August 1 letter correctly describes Robert-
son’s role at the facility during February. No weight should
be accorded to her postletter disavowals, made after the Gen-
eral Counsel had indicated that an alternative theory might
be advanced based on her role at the facility during that
month.
To be sure, Robertson’s service as acting director of nurs-
ing service during February, of itself, might not necessarily
support a conclusion that Respondent had controlled and
managed the facility during that month. Yet, the fact of her
actual service in that capacity does not stand alone. She ad-
mitted that she had received no payments from Kearney
Heights Care Center, Inc. for having occupied the position of
acting director of nursing service in February. And there is
no other evidence that her, as it turns out, actual service in
that capacity had been carried out in the interest of, or other-
wise benefitted, Respondent’s predecessor. In contrast, as
Clark’s letter recites, it did afford her an opportunity to
evaluate the facility’s personnel, as well as to ensure that op-
erations were maintained during that month—objectives that,
in light of the January 31 agreement with Kearney Heights
Care Center, Inc., benefited Respondent, not its predecessor.
Indeed, Ralff testified that he had been willing to resume
employment as the facility’s administrator only after having
been assured that Respondent would become its operator.
Third, each of Respondent’s witnesses appeared to become
evasive and uncomfortable when the subject of February new
hires at the facility was raised. In fact, the evidence shows
that there had been at least two persons newly hired there
during that month. Both had been referred by Robertson after
each had worked or, at least, trained at Robertson’s Pasadena
facility. At one point she testified that she had referred them
to the facility because ‘‘We did not have any opening in our
[Pasadena] facility, so I asked Claudia Bell if she has open-
ing and I referred some people to apply here.’’ Somewhat in-
consistently, Robertson then testified that Bell had ‘‘told me
that the facility is in—has problems because a lot of [em-
ployees] are taking vacations and taking off. So they need
1209GOLDEN CROSS HEALTH CARE OF FRESNO
some staff to cover,’’ purportedly leading her to, in turn,
refer those employees to the facility.
In fact, Bell corroborated neither of Robertson’s above-
quoted accounts. Even had she done so with respect to the
second one, that would leave unexplained why Bell would
have chosen to complain to Robertson about staffing prob-
lems if, in fact, Respondent had not been managing the facil-
ity and, thus, had not been in a position to rectify the short-
age—which, of course, referral of Pasadena personnel would
accomplish. Furthermore, so far as the evidence shows, the
only newly hired employees at the facility during February
had been individuals referred there by Robertson. And not
one of Respondent’s officials testified that she/he had been
responsible for a decision to hire the employees purportedly
only referred by Robertson.
Most significantly, though denied by Robertson, Guidry
credibly testified that when he had approached her at the fa-
cility on approximately February 25, requesting bargaining,
she had responded that she could not do so as a license had
not issued and ‘‘she was managing [the facility] tempo-
rarily’’ or ‘‘was just running the place.’’ Whichever of these
responses Robertson actually uttered, both convey the same
thought: that Robertson had been actively managing the fa-
cility and, accordingly, actually controlled its operation. Inas-
much as she admittedly had not been paid by Kearney
Heights Care Center, Inc. for ‘‘managing temporarily’’ the
facility nor for ‘‘just running the place’’ during February,
clearly she had not been doing so in the interest of Respond-
ent’s predecessor.
Given the experience of the facility’s professional and
supervisorial personnel, the fact that patients required careful
care did not require ongoing onsite presence of the facility’s
top management. Indeed, the absence of both Barfuss and
Majerus prior to January 31 graphically shows as much.
Moreover, there is no evidence of Robertson’s ongoing pres-
ence there after Respondent had acquired its license. In light
of all the considerations discussed above, I conclude that a
preponderance of the credible evidence does establish that
Respondent had become the successor to Kearney Heights
Care Center, Inc. on February 1 and, thereafter, effectively
managed and controlled the facility’s operations. Since Re-
spondent simply ignored the Union’s February requests for
recognition and bargaining and, further, formulated during
that month new employment terms which were then imple-
mented on March 1, I conclude that Respondent violated
Section 8(a)(5) and (1) of the Act by that conduct. In addi-
tion, it violated Section 8(a)(5) and (1) of the Act by its uni-
lateral mass replacement on February 29 and March 1 of unit
personnel whose performance it regarded as less than satis-
factory.
In some situations that conclusion would eliminate the
need to resolve the further question of Respondent’s motiva-
tion for those February 29–March 1 terminations. After all,
reinstatement and backpay remedies are the same for both
unilateral and unlawfully motivated acts. However, Respond-
ent presented some testimony that a few of those terminated
employees may not have been actually in the unit on Feb-
ruary 29, either because they had worked too few hours to
qualify for regular part-time status or may have ceased work-
ing for Respondent. The problem with that evidence is that
I am simply not too certain how much reliance can be placed
on it, as illustrated by an incident occurring on the first day
of the hearing.
During Ralff’s appearance as an adverse witness called by
the General Counsel, a dispute arose as to whether all reg-
istered nurses and licensed vocational nurses had been re-
tained after February 29. Counsel conducting the hearing for
Respondent denied that fact, asserting ‘‘some of them were
not,’’ based on ‘‘other information’’ provided to him. So far
as the record discloses, that ‘‘other information’’ could have
come only from Respondent. Based on my over quarter of
a century experience with west coast law firms and their
members, I am familiar with that counsel and his firm. I
know counsel to be honorable and his firm to be highly re-
spected. There can be no question of his candor, based on
the information provided to him by Respondent, in rep-
resenting that registered nurses and licensed vocational
nurses had not all been retained after February 29.
The problem is that Robertson, as well as most of Re-
spondent’s other witnesses, later contradicted that representa-
tion, by admitting that all registered nurses and licensed vo-
cational nurses had been retained, ‘‘Because it’s difficult to
get licensed personnel in the area. And since I’m a Reg-
istered Nurse, I can teach them,’’ testified Robertson. In
short, Respondent’s witnesses contradicted the representation
of its own counsel made on the basis of information provided
to him by Respondent. As a result, I am left to conclude that
Respondent was no more candid with its counsel than were
its witnesses when they testified in this proceeding. It fol-
lows that without inspection of payroll records and personnel
files, it is not possible to accurately determine the employ-
ment status of each alleged discriminatee during the first 2
months of 1992. Of course, that can be accomplished during
the compliance phase of this matter. But, since compliance
may disclose that some of those individuals had not, in fact,
been part of the unit during that period, even though Re-
spondent believed them to be on February 29, they might not
be entitled to reinstatement and backpay under an 8(a)(5) and
(1) conclusion. Accordingly, it is necessary to evaluate Re-
spondent’s motivation for not selecting employees in classi-
fications described by the unit for employment after February
29.
Relying essentially on Respondent’s pre-March 1 disguised
operation of the facility, the timing of those terminations in
relation to Respondent’s acquisition of a license to operate
the facility, the fact that just enough employees were termi-
nated to leave the number retained a distinct minority of the
pre-March 1 unit complement, and Respondent’s unwilling-
ness to recognize and bargain with the Union, the General
Counsel argues that the evidence shows that Respondent ef-
fected those terminations to avoid having to deal with the
Union. If so, that means that the union activities of particular
terminated employees is not a relevant consideration, for Re-
spondent could accomplish that objective by simply reducing
the total complement of unit employees, without regard to
the union activity of particular employees retained or termi-
nated.
In opposition, Respondent points to the evidence con-
cerning the employment records of those employees who
were terminated. Indeed, viewed in isolation, those records
might well support a successor employer’s decision to termi-
nate employees, so that future operations might be conducted
without risk of state-issued citations and fines and, further,
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
without perpetuation of other problems that had impeded
successful past operations. Yet, in evaluating motivation, the
crucial focus of inquiry is not whether valid grounds existed
for an employer’s actions. NLRB v. Symons Mfg. Co., 328
F.2d 835, 837 (7th Cir. 1964); Singer Co. v. NLRB, 429 F.2d
172, 179 (8th Cir. 1980). Instead, the crucial consideration
is whether or not those grounds actually motivated the par-
ticular actions taken by that employer. See, discussion,
Hogan Mfg., 309 NLRB 949, 953 (1992), and cases cited
therein. Here, Respondent advances three specific arguments
which, viewed in light of all evidence presented, are contra-
dicted by the record and, in turn, cast doubt on any conten-
tion that the terminations had been legitimately motivated.
First, Respondent argues that on February 29 Robertson
had lacked any knowledge of the successorship doctrine and,
more particularly, of the significance under it of the number
of a predecessor’s employees hired by the succeeding em-
ployer. However, while Robertson so testified, the fact is that
Attorney Clark came with her to Fresno on that date, so far
as the evidence discloses, for no purpose other than to com-
pare the compliment of employees retained against the unit
description and the number of employees previously em-
ployed in unit classifications. Aside from cross-examining
Robertson and Bell about the basis for particular selections,
there is no evidence of any other activity conducted by Clark
at the facility that day. Now, had Robertson truly been un-
aware of the effect on a possible bargaining obligation of the
number of employees retained, there would have been no
reason, so far as the record shows, to have Clark accompany
her to the facility on February 29.
But that is not the only evidence pertaining to Robertson’s
knowledge of successorship. Clark testified that he had spe-
cifically refrained from informing her about that doctrine.
But, neither he nor counsel conducting Respondent’s defense
in this matter had been her only representatives over the
course of events pertaining to the facility. Separate counsel,
Robert Blakely, had represented her in connection with the
facility’s acquisition—in negotiating the lease with MG As-
sociates and the agreement with Kearney Heights Care Cen-
ter, Inc. He did not appear as a witness for Respondent,
though there was no representation that he was not available
to do so. She did not describe the content of her discussions
with him during 1991 and early 1992.
More significant is Robertson’s relationship with an indi-
vidual named Manny David whom she described ‘‘as a guar-
antor’’ for Respondent’s acquisition of the facility and
whom, she testified, is ‘‘my partner in Good Shepherd.’’ In
addition, Robertson identified other nursing homes that
David had acquired and is operating. While she initially ad-
mitted that he told me that he had been through a hearing
‘‘over buying a convalescent facility and having terminated
more than half the bargaining unit,’’ she then added quickly,
‘‘but he doesn’t discuss with me.’’ Pursued about the subject
during cross-examination, Robertson claimed ‘‘I never re-
membered’’ if David had told her that he had been through
a Board hearing concerning the termination of employees
when he had taken over a facility. However, she ultimately
allowed that ‘‘Maybe’’ he might have told her about it.
Like Blakely, David did not appear as a witness in this
proceeding and, so, did not testify concerning what he had
told Robertson. But, he had been present with her during the
above-mentioned Denny’s/Brooks Ranch meeting that took
place during the first week of February. Both Robertson and
Ralff admitted that employee selection for the facility had
been discussed during the course of that meeting that day.
Consequently, there was ample opportunity for David to have
related his own past experiences to Robertson.
Robertson is a highly successful individual who, as de-
scribed in section III, supra, has advanced steadily in the
health care field. During the hearing she impressed me as a
very meticulous person. During her meeting with the facili-
ty’s staff in 1991, also described in section III, supra, she
had been alerted to the Union’s status as the representative
of some facility employees. Given her past experience as a
convalescent home operator and her apparent care in what
she undertook, it seems illogical that she would simply have
ignored the Union’s presence at the facility and would not,
at least, have attempted to ascertain the consequences to her
plans of its representation of some facility employees.
In fact, there is evidence that Robertson had done so.
Clark testified that ‘‘in ’91, I knew that she had an interest
in the facility but that didn’t work out’’ and, thereafter, ‘‘I
heard nothing about that facility until she called me the
morning of February 4’’ to arrange a meeting later that same
day with Clark. At that meeting, testified Clark, ‘‘I learned
that [the collective-bargaining] contract had expired in Au-
gust or September of 1991. I was told that negotiations were
on going [sic] for a new contract between Kearney Heights
and Local 250.’’ In addition, Clark testified, ‘‘I learned and
saw a copy of the letter from the [U]nion and Kearney
Heights extending the contract on an indefinite basis.’’
Inasmuch as only Clark and Robertson had been present
during that February 4 meeting and since Clark’s involve-
ment in the facility’s acquisition had been nonexistent during
the period immediately preceding his February 4 meeting
with Robertson, the information about the Union that he
learned and saw that day had to come from Robertson. Yet,
she gave no testimony regarding how she had come to learn
about the status of recently ongoing negotiations and to have
received the documentation which she showed Clark on Feb-
ruary 4. Inasmuch as Clark had not provided it, Robertson
had to have obtained it from another source and that refutes
any assertion that Clark had been her exclusive source of in-
formation concerning the union and labor relations. Given
that fact, as well as David’s presence and participation in
events surrounding the facility’s acquisition by Respondent,
Robertson’s own grudging concession of knowledge about
his past union difficulties arising from a similar acquisition
of a convalescent facility, and the other considerations re-
cited above, I conclude that there is ample basis for infering
knowledge by Robertson during February regarding the sig-
nificance of hiring particular numbers or percentages of unit
employees on an acquiring employer’s obligation to recog-
nize an incumbent bargaining agent.
Second, in general, Respondent’s witnesses portrayed the
actual selection process as having been authorized by Robert-
son in mid- to late February, as having been carried out by
department heads because each was most familiar with per-
sonnel that she/he immediately supervised and as having
been finalized during the last week of February when the re-
sults were faxed to Robertson in Los Angeles. But, compari-
son of the accounts advanced by Respondent’s supervisors
reveals a number of significant inconsistencies and, in one
instance, a significant contradiction of that superficially plau-
1211GOLDEN CROSS HEALTH CARE OF FRESNO
3 The General Counsel also alleges and argues that Paige made
certain remarks that violated Sec. 8(a)(1) of the Act. However, I am
not satisfied that the testimony underlying those allegations and ar-
gument can be said to be reliable, based on my observation of the
manner in which it was given and on a review of that and related
evidence in the record. Accordingly, I do not conclude that a pre-
Continued
sible, generalized description of the supposed selection proc-
ess. One example arose respecting the source of the pur-
ported decision to delegate to department heads responsibility
for selecting employees to be retained. Ralff claimed that the
decision had been ‘‘a joint conclusion by Ms. Robertson and
myself’’ after she, he believed, had initiated discussion of
that subject. He did not provide any details of that purported
discussion. In fact, he did not even testify as to when it had
assertedly occurred. However, when she testified, Robertson
effectively contradicted Ralff, portraying that decision as
having been exclusively her own because she had followed
a similar procedure when she had taken over the Pasadena
and Lake View Terrace facilities. At no point did she testify
that Ralff had even contributed to that decision’s formula-
tion.
Relatedly, Robertson testified, ‘‘I told the Administrator,
Mr. Ralff, and then also Department head[s] to select the bet-
ter employees.’’ But, none of the department heads—Bell for
nursing, Dietary Service Supervisor Edna Paige and Mainte-
nance Supervisor Alvin Goree—testified to any direct com-
munication with Robertson about selecting employees to be
retained. To the contrary, when they testified, they repeatedly
denied that Robertson had any direct contact with them or
with the facility during February, thereby attempting to for-
tify Respondent’s defense that it had not managed and con-
trolled the facility during February.
Office Manager Cleason, supported by Robertson, de-
scribed a telephone conversation during which the latter had
instructed the former to institute the selection process by di-
recting department heads to undertake it. Cleason further tes-
tified initially, ‘‘I talked to Claudia Bell’’ and ‘‘I told her
. . . that she needed to go through the nursing assistants and
to decide who she would really like to keep, who were the
better employees or best employees,’’ after which ‘‘Claudia
went through the nursing assistants. And she decided if they
were, shall we say, some of the best of the employees and
some of the worst of the employees and some who were in
between.’’ However, that description was contradicted by
Bell. For example, with force and specificity during cross-ex-
amination, she testified that her review of employees had
been a ‘‘two people review’’ and that it had been a ‘‘file re-
view that had been done by Barbara and I.’’ Bell gave no
description whatsoever of having individually reviewed the
employees.
In fact, as Cleason’s testimony progressed, she also de-
scribed a joint review with Bell, explaining that after Bell
had categorized employees that the latter supervised, ‘‘She
and I discussed it’’ and conducted a joint review of those
employees’ personnel files, ‘‘Off and on, [over] a week, a
week and a half.’’ Yet, if, as Cleason described initially, Bell
had already evaluated and categorized employees that she su-
pervised, there seemingly would have been no purpose for a
second, prolonged, review of those same employees and their
personnel files. Indeed, while Cleason is a department head,
she had not been directly supervising any unit employees
and, based on Robertson’s professed desire to have the selec-
tions made by those who ‘‘knew them, their work habits . . .
their performances,’’ it seemingly makes no sense for the of-
fice manager to have actively participated in that process.
Unless, of course, that participation provided a monitor’s
control to ensure that the sum of purportedly individual su-
pervisor selections yielded a predetermined result with re-
spect to the total number of employees selected. Signifi-
cantly, that very conclusion tends to be shown by Mainte-
nance Supervisor Goree’s description of what had occurred
when he had reported that he would prefer to retain all laun-
dry and housekeeping employees whom he then supervised:
‘‘Well, what happened Barbara Cleason—they had a list,
Barbara Cleason had went over it and that was the end of
it,’’ with the result that although he ‘‘mostly’’ had not want-
ed to put anyone on a list not to be retained, his opinion
‘‘didn’t make no difference’’ to Cleason.
Along with Robertson, Ralff, and Cleason especially ap-
peared to be tailoring their accounts of events to correspond
to Respondent’s interests or, at least, to cause the least injury
possible to them, rather than to be candidly describing events
as they had occurred. I do not credit them. Conversely,
Goree’s testimony, as well as the timing and ratio factors
mentioned at the beginning of this discussion of Respond-
ent’s motivation, support a conclusion that Respondent start-
ed the selection process with the preconceived objective of
terminating just enough unit employees, ostensibly selected
by more than one immediate supervisor, to escape having to
recognize the Union under successorship principles, as Re-
spondent has contended that they should be applied as of
March 1. That is, rather than showing that Respondent had
reviewed individual employees to ascertain, on the merits of
each’s past performance, which ones should be retained on
and after March 1, the credible evidence shows that Re-
spondent had culled through unit employees’ past perform-
ances to locate enough with deficiencies, no matter how rel-
atively remote, that could be advanced as pretexts to disguise
a refusal to continue employing a majority of unit employees
after February 29, thereby resisting application of the
successorship doctrine, as Respondent has argued it should
be applied, and avoiding having to recognize and bargain
with the Union.
Of course, Robertson testified that it had not ‘‘ma[d]e a
difference to me’’ whether the Union had represented her
employees. But, that admittedly had not been the attitude of
all of Respondent’s department heads. Cleason, the monitor
for the selection process, has been heard by Goree to say,
he testified, that ‘‘she just didn’t like [the Union].’’ Of
course, that had occurred ‘‘way before a year’’ prior to his
appearance as a witness in this proceeding. Yet, that appear-
ance occurred almost a year after the events at issue. Thus,
Cleason’s expression was not so remote to the actual selec-
tion process as might facially appear from Goree’s testimony.
Moreover, there is no evidence of any intervening event after
Cleason’s remark that would allow an inference that she had
experienced a change in attitude respecting the Union.
Given Cleason’s expression of dislike of the Union and
her active participation as a monitor in the selection process,
it could be said that, regardless of Robertson’s own attitude,
Cleason had simply taken it upon herself to jockey the Union
out of the picture through that process.3 Yet, it does not
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ponderance of reliable evidence supports a conclusion that Paige had
made comments that violated Sec. 8(a)(1) of the Act.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
seem altogether fair to simply lay off on Cleason, alone, an
unlawful motivation that appears more properly attributable
to her superior.
As concluded above, it had been Respondent who had ac-
tually operated the facility since February 1. It had been Re-
spondent which had ignored the Union’s February 4 bar-
gaining request, a copy of which had been sent to Ralff. It
had been Respondent which had resisted the Union’s Feb-
ruary 25 written and oral recognition and bargaining de-
mands. It had been Robertson who had authorized a selection
process that left less than half of the pre-March 1 unit em-
ployment complement employed at the facility. It is Re-
spondent that has utilized the results of that selection process
to resist having to recognize and bargain with the Union.
Therefore, I conclude that Respondent, not solely Cleason,
followed that selection process for the purpose of eliminating
more than a majority of unit employees previously employed
at the facility so that, in turn, it could resist recognizing and
bargaining with the Union under successorship principles,
thereby violating Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
Golden Cross Care II, Inc., d/b/a Golden Cross Health
Care of Fresno has committed unfair labor practices affecting
commerce by refusing to recognize and bargain with Hos-
pital & Health Care Workers’ Union, Local 250, Service Em-
ployees International Union, AFL–CIO—as the collective-
bargaining agent of employees in an appropriate bargaining
unit of all full time and regular part-time nursing attendants,
certified nursing attendants, dietary aides, housekeeping
aides, laundry aides, janitors and cooks employed at the nurs-
ing and convalescent health care facility located at 1233 A
Street, Fresno, California; excluding registered nurses, li-
censed vocational nurses, guards and supervisors as defined
by the Act—by making unilateral changes in terms and con-
ditions of those employees’ employment, and by unilaterally
replacing all employees in that unit whose work performance
was deemed below standard, in violation of Section 8(a)(5)
and (1) of the Act; and, by terminating and refusing to con-
tinue employing employees in bargaining unit job classifica-
tions to avoid having to recognize and bargain with the
Union under successorship principles, in violation of Section
8(a)(3) and (1) of the Act. However, it has not violated the
Act in any other manner.
REMEDY
Having concluded that Golden Cross Care II, Inc., d/b/a
Golden Cross Health Care of Fresno has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and, further, that it be ordered
to take certain affirmative action to effectuate the policies of
the Act. With respect to the latter, it shall be ordered to rec-
ognize and bargain collectively with Hospital & Health Care
Workers’ Union, Local 250, Service Employees International
Union, AFL–CIO as the collective-bargaining agent for em-
ployees in an appropriate bargaining unit of all full time and
regular part-time nursing attendants, certified nursing attend-
ants, dietary aides, housekeeping aides, laundry aides, jani-
tors and cooks employed at the nursing and convalescent
health care facility located at 1233 A Street, Fresno, Cali-
fornia; excluding registered nurses, licensed vocational
nurses, guards and supervisors as defined by the Act. Fur-
ther, as to changes made in employment terms and condi-
tions of employees in that appropriate bargaining unit on and
after March 1, 1992, it shall be ordered, on request by that
labor organization, to restore those terms and conditions of
employment and, moreover, to make whole those unit em-
ployees for any losses of pay and benefits suffered as a result
of those unilateral changes, in accordance with normal Board
principles. Ogle Protection Service, 183 NLRB 682 (1970);
and Merryweather Optical Co., 240 NLRB 1213 (1979). Fi-
nally, it shall be ordered to reinstate all employees employed
in job classifications described in the bargaining unit who
were terminated on February 29 and March 1, 1992, and to
make them whole for any loss of pay and benefits suffered
by them as a result of those terminations, in accordance with
normal Board principles. F. W. Woolworth Co., 90 NLRB
289 (1950). In addition, interest shall be paid on all amounts
owing, as computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Golden Cross Care II, Inc., d/b/a Golden
Cross Health Care of Fresno, Fresno, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Hospital &
Health Care Workers’ Union, Local 250, Service Employees
International Union, AFL–CIO as the exclusive collective-
bargaining agent of employees in an appropriate bargaining
unit of:
All full time and regular part-time nursing attendants,
certified nursing attendants, dietary aides, housekeeping
aides, laundry aides, janitors and cooks employed at the
nursing and convalescent health care facility located at
1233 A Street, Fresno, California; excluding registered
nurses, licensed vocational nurses, guards and super-
visors as defined by the Act.
(b) Effecting mass terminations of employees regarded as
less than satisfactory or otherwise changing any term or con-
dition of employment of employees in the above-described
appropriate bargaining unit without first giving notice to the
above-named labor organization and affording it an oppor-
tunity to bargain about any proposed change.
(c) Discharging or otherwise discriminating against any
employee to avoid having to deal with the above-named
labor organization as the representative of employees in the
above-described appropriate bargaining unit, or because of
activity or support for that labor organization or any other
labor organization.
1213GOLDEN CROSS HEALTH CARE OF FRESNO
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(d) In any like or related manner interfering with, restrain-
ing, or coercing you in the exercise of the rights guaranteed
you by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Hospital &
Health Care Workers’ Union, Local 250, Service Employees
International Union, AFL–CIO as the collective-bargaining
agent for employees in the appropriate bargaining unit de-
scribed in subparagraph 1,a, above, and embody any agree-
ment reached in a written contract.
(b) On request by that labor organization, rescind all
changes in employment terms for employees in the above-de-
scribed appropriate bargaining unit made on and after March
1, 1992, and make whole all employees and benefits funds,
with interest, for any losses incurred as a result of those re-
scinded changes, in the manner prescribed in the remedy sec-
tion of this decision.
(c) Offer immediate and full reinstatement to all employ-
ees in the job classifications of nursing attendants, certified
nursing attendants, dietary aides, housekeeping aides, laundry
aides, janitors and cooks who were terminated on February
29 and March 1, 1992, dismissing, if necessary, anyone who
may have been hired or assigned to the positions from which
they were discharged or, if any of their positions no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of pay and benefits they may have
suffered as a result of their discriminatory discharges, in the
manner set forth above in the remedy section of this deci-
sion.
(d) Preserve, on request, and make available to the Board
or its agents, for examination and copying, all payroll, busi-
ness and other records necessary to compute the backpay, re-
instatement, and restoration rights as set forth in the remedy
section of this decision.
(e) Post at its Fresno, California facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice on
forms provided by the Regional Director for Region 32, after
being duly signed by its authorized representative, shall be
posted by the 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 it to ensure that those notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be and it is
dismissed insofar as it alleges violations of the Act not
found.