Pacific Convalescent Hospital

National Labor Relations Board - Board Decisions

May 9, 1977

229 N.L.R.B. 507 (N.L.R.B. 1977)

PACIFIC CONVALESCENT HOSPITAL
Coastal Care Centers, d/b/a Pacific Convalescent
Hospital and Butchers' Union Local No. 516,
Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO. Case 20-CA-11463
May 9, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On February 4, 1977, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed limited exceptions and a 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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The General Counsel contends that Respondent
unlawfully interrogated an employee about union
activities. The testimony with respect thereto is
uncontradicted. In February 1976 Lawrence DeBeni,
Respondent's president, told Patricia Ross, a 6-year
employee at Pacific Convalescent Hospital, that he
wanted to talk to her. Upon entering a patient tub
room where they were alone, DeBeni asked Ross if
she had heard any union talk in the hospital. She said
she had not. He asked her if she would tell him,
without giving names, if she heard any such talk, and
she said she would.
The Administrative Law Judge concluded that the
interrogation was not unlawful because it was
isolated and remote in time and substance from the
April 27 discharges at Pacific Convalescent Hospital.
However, the record shows that the interrogation was
related to organizational activities at another of
Respondent's hospitals. DeBeni testified that in the
early part of 1976 a union election was held at
Granada Hospital, another facility operated by
Respondent. In addition, during the interrogation of
Ross, DeBeni told her about union problems he was
having at Granada. The interrogation, therefore, was
not casual or isolated, but related to Respondent's
"union problems." For these reasons, we find that
Respondent violated Section 8(a)(l) of the Act by
interrogating employee Patricia Ross about union
activities and whether they were taking place at
Pacific Convalescent Hospital.2 We shall accordingly
229 NLRB No. 81
amend the recommended Order and the notice to
employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below, and hereby orders that the Respon-
dent, Coastal Care Centers, d/b/a Pacific Convales-
cent Hospital, Eureka, California, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order, as so modified:
1. Reletter paragraph l(b) to l(c) and add the
following as paragraph l(b):
"(b) Unlawfully interrogating employees about
union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.Ak 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Member Jenkins agrees that the Administrative Law Judge erred in
concluding that the February 1976 interrogation was not violative of Sec.
8(aX l) of the Act. However, in Member Jenkins' view, the record evidence
of DeBeni's interrogation of Ross, of itself and standing alone, constitutes
sufficient basis for finding a violation of Sec. 8(aXl) as alleged in the
complaint. Cf. P. B. and S. Chemical Company. 224 NLRB I (1976) (sec. C,
Dunn's interrogations). Hence, Member Jenkins regards as unnecessary his
colleagues' further analysis of this incident in terms of whether or not it was
a "casual or isolated" episode.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, or otherwise disci-
pline, any employees for engaging in concerted
activity under Section 7 of the National Labor
Relations Act.
WE WILL NOT unlawfully interrogate employees
about union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the National
Labor Relations Act.
WE WILL make Patricia Ross, Peggy Torma,
Janice Downs, Nancy Legate, Marilyn Mardock,
and Lorraine Farr whole for any loss of pay
suffered by them by reason of their unlawful
discharges on April 27, 1976.
507
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
COASTAL CARE CENTERS,
D/B/A PACIFIC
CONVALESCENT HOSPITAL
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on May 14, 1976, as amended on June
28, 1976, by Butchers' Union Local No. 516, Amalgamated
Meat Cutters & Butcher Workmen of North America,
AFL-CIO, hereinafter referred to as the Union, the
complaint herein was issued on July 8, 1976. Said
complaint alleges that Coastal Care Centers, d/b/a Pacific
Convalescent Hospital, hereinafter referred to as Respon-
dent, violated Section 8(a)(1) of the Act by unlawfully
discharging six employees, on or about April 27, 1976, and
by unlawfully interrogating an employee on an "unknown
date in February, 1976." Respondent, by its answer, denies
that it violated the Act as alleged.
Pursuant to notice, a hearing was held in Eureka,
California, on October 21 and 22, 1976, before me, duly
designated as the Administrative Law Judge. Appearances
were entered on behalf of the General Counsel and
Respondent and briefs were timely filed by said parties on
November 26, 1976, which have been carefully considered.
Based upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
At all times material herein, Respondent, a California
corporation, has been engaged in the operation of proprie-
tary convalescent care hospitals at facilities in Eureka,
California. During the past year, Respondent, in the course
and conduct of its business operations, had gross receipts
in excess of $250,000, received in excess of $70,000 from
the Medi-Cal and Medi-Care insurance programs, and
purchased and received goods valued in excess of $50,000
from outside the State of California.
As is admitted by Respondent, it is, and at all times
material herein has been, an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the Union is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act. It appears that the
Union is "involved" in this case only insofar as it filed the
charge and amended charge herein.' There is some
reference in the testimony to an official of the Union
having been consulted for advice, but it is of no materiality
in the resolution of the issues herein.
I The original charge alleged 8(aX3) and (5) violations, but the reference
to said section was deleted in the amended charge, as well as a reference to
union activities.
2 Although one was classified as a "treatment nurse." that distinction
III. THE UNFAIR LABOR PRACTICES
Respondent admits the following allegations: that Law-
rence DeBeni is president of Respondent, Cleatus Weller is
administrator, Rosalie Jahnke is director of nurses, and
Linda McCulley is a charge nurse. It is noted that
Respondent operates three convalescent hospitals in
Eureka, that the only facility involved herein is the Pacific
Convalescent Hospital, hereinafter referred to as Pacific,
and that the latter two above-named persons are employed
only at Pacific (as well as the alleged discriminatees). It is
further noted that Respondent admits that the first three
named persons are agents within the meaning of Section
2(13) of the Act and supervisors within the meaning of
Section 2(11), but denies that McCulley is either an agent
or supervisor. The issue of McCulley's status, particularly
with reference to her authority to give nurses aides
permission to leave the Hospital, is a factor in the defense
raised by Respondent.
The principal issue is whether or not Respondent
discharged six nurses aides 2 working at Pacific for
engaging in concerted protected activity in violation of
Section 8(a)(1) of the Act. It is undisputed that all of said
nurses aides were, during the time material herein,
employed on the day shift (from 7 a.m. to 3 p.m.). It is also
undisputed that the normal complement on the day shift
consisted of a charge nurse, one treatment nurse, and seven
nurses aides.
As to the issue of McCulley's status, DeBeni testified as
follows:
Q. Mr. DeBeni, turning your attention to a differ-
ent area for a moment. Concerning the authority of
charge nurses, isn't it a fact that the charge nurse has
the authority to hire, fire and discipline employees?
A. Under certain circumstances. Limited, yes, but
under certain circumstances.
Q. All right, fine. Do they write warning slips?
A. Yes, they do.
Q. I am speaking of charge nurses.
A. I realize that.
Q. All right. And do they also prepare written
evaluations of employees?
A. They participate in the evaluations, yes.
Q. Okay. Isn't it a fact that they prepare the initial
evaluation of aids?
A. The initial? Yes, that's true.
McCulley, who was called as a witness by Respondent,
testified that, as charge nurse, she had 3 the authority to
grant nurses aides "permission to leave the building," if the
director of nurses was "gone." She further testified, on
cross-examination, however, that on occasion she has given
such permission when the director of nurses was present,
that she had limited authority to send a nurses aide home
(only for certain reasons such as "mistreating" patients),
but later she testified that she was told that she had the
authority to send a nurses aide home if her work was not
appears to be of no importance and, for the purposes of convenience, all are
referred to herein as nurses aides.
I She was no longer employed by Respondent at the time of the hearing.
508
PACIFIC CONVALESCENT HOSPITAL
satisfactory, apparently even though the director of nurses
was present.
Peggy Torma, one of the alleged discriminatees, credibly
testified as follows:
Q. Let me ask you this: Is it a general rule at the
hospital that you are not to leave the grounds?
A. Yes.
Q. Is there an exception for that?
A. If we ask the charge nurse.
Q. And have you previously asked the charge
nurse?
A. Often.
Q. And have you previously been granted permis-
sion?
A. She often sent me herself to the store to pick
things up for her.
Nancy Legate, another alleged discriminatee, credibly
testified that aides "frequently" asked McCulley for
permission to leave the building, that "she would grant it,"
and "that that was part of her power." Patricia Ross,
another alleged discriminatee, credibly testified that she
has asked McCulley "several times, and several of the other
charge nurses" for permission to leave the "premises" and
that they always granted permission.
Based upon the above testimony, it is found that
McCulley, as a charge nurse, was a supervisor within the
meaning of the Act and that she exercised the authority of
granting permission to leave the premises.
It is undisputed that on April 27, 1976, there were two
nurses aides missing from the normal complement on the
day shift and that during the preceding weeks said shift was
more than occasionally manned by less than the normal
complement. It appears that, sometime prior to 9 a.m. on
April 27, several of the nurses aides complained to each
other about the burden of working short-handed in order
to care for the patients properly. It further appears from
Jahnke's credited testimony that she arrived at the Hospital
about 8:30 a.m., that she came in early because of a report
of an accident to an employee on the previous shift, that
she was immediately informed by Peggy Torma that the
nursing staff was short-handed, 4 and that shortly thereafter
she was approached by two nurses aides who made a
similar report. According to Jahnke's testimony, she
responded, "I am not really sympathetic. You have done
this to me, too, but I will go and see Linda [McCulley] and
see what she's done, who she's called and we will get
someone." Ross, who was one of the two nurses aides who
talked to Jahnke, testified that Jahnke "said there was
nothing she could do," that she could not get anyone to
come in, that Jahnke gave her a name to call, but the
person she called said she was unable to come in because
of a dental appointment.
It appears that about 9 a.m., approximately the time the
nurses aides were given a 15-minute "coffee break," all six
met in the lounge and decided that the only way they might
be able to accomplish anything to rectify the problem of
being short-handed was to confront DeBeni or Weller in a
4 While on the one hand Jahnke, who was called as a witness by
Respondent, testified this was the first time she knew of that fact, McCulley.
who was also called by Respondent, testified that she called Jahnke at her
group and that they would all go together to see if they
could find one or the other at the Granada (another of
Respondent's hospitals approximately a mile away).
Ross testified that she and Marilyn Mardock went to see
McCulley and that Mardock "did the speaking." Ross
testified as follows to the conversation between Mardock
and McCulley:
A. She says, "We are going to find Mr. DeBeni and
Mr. Weller. I prefer to find Mr. DeBeni. We are going
to go find them and we are going to go talk to them and
tell them our problem."
* *
Q. And what did Mrs. McCulley say in response, if
anything, can you recall?
A. She, at that time, was giving a pill to a patient,
and she said, "Go, go do it. Just go do it." She was
upset herself at that time.
Q. I see. Was she upset at you?
A. No.
Torma testified as follows:
A. Yes. When I went up to the nurses station to get
my purse, I overheard Pat Ross and Marilyn Mardock
talking to Mrs. McCulley, and they were telling her that
we were leaving during our coffee break to look for Mr.
Weller and Mr. DeBeni, and she said, Sure, go."
McCulley testified as follows:
I walked by one of the aids in the hall and they were
all upset because they were short-handed and we tried,
we were trying to get someone to come in, and I said,
"How are you doing?", and she says, "We are all
leaving," and I said, "Okay, good-by."
I didn't give her any direct authority to go, and when
they did leave, Mrs. Jahnke was there, so I had no
authority to tell them to go to begin with. I did not take
this statement seriously when it was put to me like that.
Q. (By Mr. Jordan) Did they indicate to you that
they were all going to leave the building?
A. Yes, and I could not-
JUDGE GILBERT: Did they tell you why?
THE WITNESS: I knew why, because we were short-
handed.
Ross and Torma were more convincing witnesses and
their testimony is credited. It is inferred from the testimony
(as to the conversation with McCulley about leaving the
premises) that the nurses aides reasonably understood that
they were given permission by McCulley to leave the
hospital to find DeBeni or Weller.
The six aides proceeded immediately to the parking lot
and got into two automobiles. According to Torma,
McCulley followed them to the parking lot. Torma's
testimony as to what then followed is as follows:
home and that she said she would come in early and see if she could find
someone to come in (to fill out the shift). Jahnke was a more convincing
witness than McCulley and her testimony is credited.
509
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She [McCulley] came to the back ramp and she said,
"How long are you going to be gone?", and we said just
ten or 15 minutes during our coffee break, and she said,
"I am going to start peri-care on room I", and we said
that we would be back in ten minutes, and she said
"fine." She told us to go.
Nancy Legate testified that as she was getting into Ross'
car, McCulley came to the ramp and said "Go. I am going
to start doing peri-care 5 on Section 1." Ross testified that
she saw McCulley on the ramp, that she talked to one of
the aides but that she did not hear what was said.
McCulley testified as follows:
JUDGE GILBERT: Well, let me ask you this: When
they said something about they were all leaving, did
they tell you where they were going or why they were
going?
THE WITNESS: Not then, a little bit later another one
of the girls came up to get her handbag out of the
cubbard [sic] where she kept it and I said, "Are you
really leaving?", and she said yes, and it upset me
because I felt the patients didn't deserve to be treated
this way.
I said, "Anybody that leaves should be replaced,"
and I am sure she told the others. I can't say that, okay.
They were aware that I was not in favor of it,
because I would have gone with them if I was, because
I wasn't in favor of working shorthanded either.
JUDGE GILBERT: That still didn't answer my ques-
tion. Did they tell you why they were leaving or where
they were going?
THE WITNESS: Okay.
After Mrs. Jahnke had gotten there and all of this
was in progress, all of this was going on, I went there
and I told her, "Has anybody told you that the aids are
leaving? I wonder where they are going and when they
will be back. Let me go ask them," and I walked out to
the back porch of the facility and I said, "Where are
you going? Are you coming back? What's going on?"
They said, "We are going to go and talk to Mr.
DeBeni and Mr. Weller, and we might be back."
I looked at my watch and said, "I am going to clock
you out at 9 o'clock." I couldn't say go ahead, we will
pay you while you are going, because I didn't have the
authority. I just wanted to know where I stood with the
crew, if I had one or if I was going to have to do it all
myself.
McCulley was not a convincing witness. 6 Not only was a
portion of her testimony contradicted by Jahnke, as
previously noted,7 but also her above-quoted testimony as
to her conversation with Jahnke, for Jahnke credibly
testified that the first word she had of the aides leaving the
building was when McCulley reported that "the aides have
left." Jahnke further testified that she (McCulley) then
said, "If you will pass medication, I will start doing patient
care," and that they started down the hall to get to work.
5 A partial "sponging off' process on a patient.
3 It is noted that there is no evidence that she "clocked out" the aides as
she claimed she threatened to do.
7 See fn. 4.
Consequently, the testimony of Torma and Legate as to
what McCulley said on the parking lot is credited.
According to the credited testimony of Torma, Legate
and Ross, the aides proceeded directly to Granada
Hospital (located less than a mile away) and, not seeing
DeBeni's or Weller's car in the parking lot, they drove
directly to Ross' babysitter's house which was located a few
blocks from Granada; they did this because they did not
feel they had time to go to Seaview Convalescent Hospital,
the third hospital owned by Respondent located in Eureka,
but some 10 miles distant; upon arrival at the babysitter's
house, Ross phoned both Granada and Seaview and was
immediately informed that neither Weller nor DeBeni was
present; and Ross then called Pacific and spoke to Jahnke
telling her they were coming right back and requested that
she try to have either Weller or DeBeni present to talk with
them. Jahnke testified that she understood the presence of
DeBeni or Weller was a request and that she didn't "weigh
it" (as to whether it was a refusal to return unless a meeting
was arranged with Weller or DeBeni). The aides thereupon
immediately left the babysitter's house and returned to
Pacific, and it is inferred from credited testimony and the
distances traveled, they were away not more than 15 or 20
minutes. McCulley testified that she talked to Ross and
then transferred her call to Jahnke, and that Ross, in
speaking with her (McCulley), in effect, conditioned the
aides' return upon a meeting being arranged with DeBeni
or Weller. However, in view of my opinion of McCulley as
an unreliable witness and of Jahnke's testimony that she
understood Ross' mention of a meeting with the manage-
ment officials to be a request, I do not credit this phase of
McCulley's testimony.
It appears from the credited testimony of Torma, Legate,
and Ross that, upon the return of the six aides to the
Hospital, they headed toward the patients' area, but were
told by McCulley not to go to the patients but to report to
Jahnke's office. McCulley credibly testified (without
contradiction) that she was previously instructed by Jahnke
"not to let them [the aids] go on the floor," but to "send
them to her office." It is inferred from the above-credited
testimony that the aides had intended to go back to work
on their return to the Hospital, but were ordered not to do
so. 8
It appears that about 5 minutes after the aides assembled
in Jahnke's office, DeBeni and Weller appeared. Torma,
Legate, Ross, and DeBeni testified as to what then ensued.
Weller was not called as a witness.
Torma testified as follows:
Mr. DeBeni said they wanted to know what the
Hell we were doing, and I believe it was Pat that said,
"Mr. DeBeni, we were just looking for help for our
people," and Marilyn said "We would just like some
help for our people," again, the same thing.
Mr. DeBeni said, "If that's your attitude, get out."
Q. Did Miss Ross remain in the office during the
course of the discussion?
s As set forth hereinbelow, this inference is considered as a factor in
determining whether the aides had, in leaving the Hospital, engaged in a
"strike or concerted refusal to work," as contended by Respondent.
510
PACIFIC CONVALESCENT HOSPITAL
A. No, she was called out by the intercom to go
move her car. It was blocking someone in the parking
lot.
Q. Can you tell me if during the course of this
interview, if anything was discussed with Mr. DeBeni
with respect to a meeting later in the day to discuss
this?
A. No.
Q. Was there any discussion with respect to
returning to your positions-discussion with Mr.
DeBeni?
A. He told us to get out.
Q. Can you tell us whether or not you have ever
refused to work?
A. No, I wouldn't do that.
Q. I see. After you were told to get out, did you
leave?
A. Yes.
Q. And did you have any further occasion to speak
to anyone upon your leaving the Hospital?
A. As we were going down the hallway, Mr.
DeBeni came by us again and shouted "get out, get
out," and Pat was coming back and she said, "Hey, Mr.
D., we just want to talk to you," and he raised his hand
as though to strike her and said "Get out," and so we
did.
Q. Did he request that you attend to the patients
that were in need of care at the time?
A. No, he did not.
* *
Q. (By Mr. Jordan) Did Mr. DeBeni ever ask that
you girls return to work?
A. No.
JUDGE GILBERT: I assume you mean that day.
Q. (By Mr. Jordan) That day.
A. No.
Ross testified as follows:
. . . Mr. DeBeni says, "All right, what's going on?"
And then I says, "Well, we have a problem. We are
understaffed, overworked, we can't get it done." And
just about then they paged me to go move my car and I
did.
Q. I see. So you were not there for the remainder of
the conversation?
A. No.
Ross further testified as to her conversation with DeBeni
when she returned to the Hospital after moving her car, as
follows:
Legate testified as follows:
They said, "Girls, what's going on?" I believe it was
Pat Ross that said, "Mr. DeBeni, we wanted to talk to
you. We are understaffed."
And then I believe Mr. Weller said, "What are you
going to gain by this, girls?" And Marilyn Mardock,
she had said, "We are trying to help the patients, and
we all wanted to talk to you." And then Mr. DeBeni
said - he raised his voice and he said, "Get out of
here," and then he left.
Q. I see. Had Miss Ross left by that time?
A. Yes, she had left before this.
Q. I see. Now, why did she leave? Do you know?
A. They called her on the intercom-something
about her car. She had to move it.
She further testified as to what occurred when she and the
other four aides were in the corridor on their way out of the
Hospital as follows:
Yes. We were going out. We were just about to go
out of the door and Pat Ross had an encounter with
Mr. DeBeni. Pat said to Mr. DeBeni, "Mr. D., we want
to talk to you."
Mr. DeBeni raised his hand and he said, "Get out
of here."
Upon cross-examination she testified as follows with
regard to the meeting in Jahnke's office:
Q. (By Mr. Jordan) During this time, did Mr.
DeBeni offer to meet with you another time during the
day?
A. No, he did not.
Yes. I walked up to him and I says, "What's going
on?" And Mr. DeBeni says I didn't care about the
patients and I said that's not true. I said we were just
trying to help him, to help ourselves to help the
patients.
He said, "You don't care about the patients." He
raised his hand like this and said get out, and I ducked
and left.
Q. When you say raised his hand-
A. Well, it was up like this.
MR. DVORIN: Let the record show that the witness is
raising her hand above her head, palm open, as if
possibly in a striking motion.
JUDGE GILBERT: No, I would not describe it as a
striking motion.
MR. DVORIN: A raised hand motion.
JUDGE GILBERT: A raised hand motion. Raised her
hand over her head.
MR. DvoRIN: Fine.
Q. (By Mr. Dvorin) And what did Mr. DeBeni say?
A. He said for me to get out.
Q. Did you?
A. Yes.
DeBeni testified that when he entered the Hospital both
McCulley and Jahnke told him "that the girls had left the
building and they had just returned and gone into Mrs.
Jahnke's office; that he and Weller entered the office; and
that he asked the aides, "What's going on?" His testimony
continues as follows:
Pat Ross said, "We want to talk to you. We are
having problems. We are working short."
Q. And what did you respond?
511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. At that precise moment, Mr. Weller interrupted
the conversation and said, "Did you girls leave the
building?"
Q. Was there a response to Mr. Weller's inquiry?
A. They responded by saying yes.
Mr. Weller said, "Where did you think that was
going to get you?"
Q. Okay. And was there a response to that
statement?
A. No.
Q. All right. Who spoke next?
A. (No response)
Q. To the best of your recollection.
A. I believe that I asked what the problem was and
I can't honestly tell you who answered me at that
precise moment.
Q. Was there like dialogue pickup then?
A. Yes. There was kind of a recounting of working
short, a variety of problems involving patients, the level
of care, etc.
Q. When you say "etc." - I understand this was a
long time ago, but we are trying to get as complete a
recount as we can.
A. Well, the girls were going on to some length that
they were working short, they had been working short
on a fairly regular basis, they wanted something done
about it, they were concerned about their patients, at
least they were alleging that they were concerned about
their patients. They wanted some resolution to the
problems.
Q. Did they offer a resolution to the problems at
that time?
A. No.
Q. What was your response to all of these com-
plaints or grievances?
A. At that precise time, I think that's when Pat
Ross got the phone call, not the phone call, but the
page to remove her car. She left the room. We
continued with the same discussion.
I asked the girls to go back on the floor and come
back at the end of the day, I would be there at 3 o'clock
when their shift ended to pursue the matters and see if
we could straighten things out.
Q. All right. What was their response to that?
A. They wanted them settled then.
JUDGE GILBERT: What's that?
THE WITNESS: They wanted them settled at that
time.
Q. (By Mr. Jordan) When you say "settled," Mr.
DeBeni, did they give you any alternative? Did they
give you a demand at this point?
A. There were no alternatives or demands. They
just wanted to sit there and resolve the situation and it
was obvious that it was going to be a quite lengthy
discussion and we weren't going to resolve anything.
Q. Why did you choose to discuss it later in the
afternoon rather than in the morning?
A. So we could get the patients taken care of.
Q. All right.
At this point, in your knowledge, were there any
people helping the patients at this point?
A. Not at that point in time, at least not to my
knowledge.
Q. All right. So your solution to the problem was
what?
A. Get back to work and sit down at the end of the
day and resolve the problems.
Q. And they preferred to settle it, settle the
grievance right then?
A. Well, I think at that point we were kind of at an
impasse.
Q. What was their comment when you asked them
to go back to work?
A. They just continued in the comments relating to
the patient care and working short.
Q. All right.
A. I explained to them there was nothing I could
do about the fact that we were a couple of people short.
It happens, and it happens more often than you care to
have it happen, but there is no immediate resolution to
the problem.
Q. And how did they answer you?
A. They kept going over the same issues.
Q. All right. Did the discussion finally end at some
point?
A. Yes.
Q. How did it end?
A. Finally I said, "Well, that's it. If you are not
going back to work, then you are free to go." They got
up in unison, walked out the door and down the hall.
Q. (By Mr. Jordan) Mr. DeBeni, did you discharge
these girls that morning?
A. No sir, I did not.
Q. Why did you not?
A. I was hopeful that they were going to go to
work. We had sixty-two patients laying in their beds
and I was hoping they would go back to work.
Q. Mr. DeBeni, you said the young ladies just
walked out of the room?
A. Yes.
He further testified on direct examination that he left the
office to "punch out" the aides' cards, and that while he
saw them leaving the building he did not say anything to
them.
On cross-examination he testified that when he arrived at
the Hospital, he had not come to "any resolution as to the
consequences of the nurses aides' action in having left the
hospital." When confronted with a statement in his
affidavit which read "as far as I was concerned, the aides
had terminated themselves by leaving the premises prior to
my arrival at the Pacific," he testified that that was his
"reaction" at the time he gave the affidavit, and thus it was
obviously an afterthought. It appears from his further
testimony on cross-examination that he did talk to Ross.
He adopted as his testimony the following statement read
from his affidavit:
. . . "I then left the office and went to the rear hall
of the building. The girls had wandered about half way
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PACIFIC CONVALESCENT HOSPITAL
to the back door. When they saw me they quickened
their steps to leave. I was going to the time cards in
order to pull their cards. At that point, Pat Ross re-
entered the building. She came to me and said, "Mr.
DeBeni, I was just trying to help you." I said, "Pat, I
don't need that kind of help. You girls have quit your
jobs, please leave." At no time did I tell the aids they
were fired.
DeBeni denied that the testimony of Torma, Legate, and
Ross (with respect to his "encounter" with Ross after
leaving the office) was correct.
While I credit DeBeni's testimony that there was a more
extensive discussion about being short-handed than indi-
cated by the testimony of Torma and Legate, I credit their
testimony as to how their meeting in Jahnke's office
concluded and their denials that he asked them to go back
to work and discuss the problem later. They were more
convincing witnesses than DeBeni on that point. I also
credit the testimony of Ross, Torma, and Legate as to what
occurred in the corridor. If DeBeni had told them that if
they were not going to go back to work, they were free to
go, it appears most unlikely he would have told Ross that
"you girls have quit your jobs, please leave," in view of the
fact that she had not been present when, as he claimed, he
asked them to return to work and they refused to heed his
request. Moreover, according to his own testimony, it
appears he said nothing to the aides in the office about
their having quit their jobs because they did not comply
with his request to return to work, and they were more
convincing witnesses.
I do credit DeBeni's testimony that he did not tell the
aides they were "fired." They, however, credibly testified
that he told them to "go" and to "get out," that they did
not know whether they were discharged or not; that they
consulted an official of the Union as to their confusion;
that he told them to return and find out what their status
was; that they spoke to Jahnke, who told them, "as far as
I'm concerned, you quit," and that when they asked
Weller, he told them they were "fired." 9 As to Jahnke's
answer, she was not present in the office or in the corridor
when they left and, therefore, was not in any position to
testify as to DeBeni's intent in ordering the aides to "go"
and to "get out." Furthermore, it appears from her report
on the termination action forms relating to the aides (dated
April 27, 1976) that their employment was terminated, but
it was predicated on her apparent assumption that they
voluntarily quit because they left the premises without
permission (which, of course, was prior to DeBeni's
meeting with the aides). There is nothing in DeBeni's
testimony which indicated that he took such a position, but
rather his testimony indicates that he did not take that
position. In view of the uncontradicted testimony that
Weller told them they were "fired," I am of the opinion
that he construed DeBeni's action at the end of the meeting
to constitute a discharge and, in any event, since he was an
official of Respondent, the aides reasonably understood
that they had been discharged by Respondent.
I Their testimony as to what Weller stated is uncontradicted.
"' In view of this, no purpose would he served in order to complete my
comment on the argument and to make a determination whether the six
Respondent argues in its brief that the aides were not
discharged. Also, Respondent in its brief argues "The
aides' action in leaving their work is not conduct that is
protected under Section 7 of the Act." In effect, Respon-
dent's position as to the second argument appears to be
two-fold, one that the means that they used (leaving the
building) to present their grievance of being short-handed
was unreasonable and was done without permission, in
violation of the rule against leaving without permission;
and, two, that their leaving the building was a walkout or
concerted refusal to work by a committee constituting a
labor organization which did not comply with the notice
required under Section 8(g) of the Act.
As to the first argument, based on the findings hereina-
bove, I conclude that DeBeni's action in telling the aides to
"go" or "get out" did constitute a discharge.
As to the second argument, I find that the record will not
support a finding that their leaving the building was the
reason for the discharge and therefore no purpose would be
served in determining the issue of whether or not such
action made their concerted pursuance of the grievance of
being short-handed unprotected. Even if it were to be
assumed that it was a factor leading to their discharge, I am
of the opinion that it neither constituted a refusal to work
nor a violation of the rule against leaving the premises
without permission. In all the circumstances, I am of the
opinion that their action was not intended or could
reasonably have been understood to be a withholding of
their services as a protest. They did not violate the rule in
view of my finding that they obtained permission to leave
from a supervisor who exercised the authority to grant such
permission. While it may have been poor judgment for
them to leave en masse and for McCulley to grant them
permission to do so, nevertheless the rule was not violated.
It was made clear to McCulley, the supervisor who granted
them permission, that their purpose in leaving was to find
DeBeni or Weller, that they intended to return in 15
minutes and when they returned they were prevented from
going back to work as they apparently intended to do.
Thus their leaving cannot be construed as a refusal to work
within the meaning of Section 8(g) of the Act.°1
It is my opinion, based upon the above findings and all
the circumstances herein, that DeBeni, in effect, discharged
the aides because he was exasperated with their pursuance
of their grievance. Therefore, I conclude that General
Counsel has proved by a preponderance of the evidence
the allegation that on April 27, 1976, employees Patricia
Ross, Peggy Torma, Janice Downs, Nancy Legate, Marilyn
Mardock, and Lorraine Farr were discharged in violation
of Section 8(aXI) of the Act because of their concerted
protected activity in pursuing a grievance against working
conditions, i.e., the lack of a normal complement on their
shift.
It is alleged that Respondent further violated Section
8(aX(1) of the Act by DeBeni's interrogation of Ross
sometime in February 1976. Ross' testimony as to the
incident is that DeBeni, as he passed by her, said he wanted
to talk to her, took her into the "patient tub rooms," and
aides constituted a labor organization within the meaning of Sec. 8(g) of the
Act and failed to give the notice required under said section.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked her if she had heard of any "union talk" in the
Hospital to which she responded in the negative, and then
he asked her if she would tell him if she did hear any such
talk without giving any specific names, to which she
responded, "yes." She further testified that he told her
about union problems he was having at Granada Hospital.
This is the only incident of interrogation in the record.
There is nothing in the record to indicate there was any
union activity going on at Pacific. Also, it is my opinion
that the incident was too remote in substance and time, at
least 2 months prior to the April 27 incident, to be
considered to be related thereto. Therefore, it is concluded
that this single, isolated interrogation cannot appropriately
be considered unlawful within the meaning of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its
operations set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
v. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practices found herein and take certain affirmative action,
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
Although it has been found that Patricia Ross, Peggy
Torma, Janice Downs, Nancy Legate, Marilyn Mardock,
and Lorraine Farr were unlawfully discharged by Respon-
dent on April 27, 1976, it will not be recommended that
Respondent be ordered to offer them reinstatement,
inasmuch as it was stipulated that they were sent valid
offers of reinstatement prior to the hearing. It will be
recommended, however, that Respondent be ordered to
make each of them whole for any loss of pay she may have
suffered between April 27, 1976, and the date she received
her aforesaid offer of reinstatement in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, 291-293
(1950), together with 6-percent interest thereon in accor-
dance with Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding, I make the following:
" 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.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, on April 27, 1976, unlawfully dis-
charged Patricia Ross, Peggy Torma, Janice Downs,
Nancy Legate, Marilyn Mardock, and Lorraine Farr in
violation of Section 8(aX 1) of the Act.
4. General Counsel has failed to prove by a preponder-
ance of the evidence the allegation in paragraph VI of the
complaint that Respondent violated Section 8(aX)(1) of the
Act by engaging in unlawful interrogation of an employee.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER t
Respondent, Coastal Care Centers, d/b/a Pacific Conva-
lescent Hospital, Eureka, California, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, or otherwise disciplining, any employee
for engaging in concerted protected activity.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make Patricia Ross, Peggy Torma, Janice Downs,
Nancy Legate, Marilyn Mardock, and Lorraine Farr whole
for any loss of pay they may have suffered by reason of
their unlawful discharge on April 27, 1976, in the manner
set forth in the section hereinabove titled "The Remedy."
(b) Post at its Pacific Convalescent Hospital in Eureka,
California, copies of the attached notice marked "Appen-
dix." 12 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed by
an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
The allegation in paragraph VI of the complaint that
Respondent violated Section 8(a)(1) of the Act by engaging
in unlawful interrogation of an employee should be, and is
hereby, dismissed.
12 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."
514