Pacific Grove Convalescent Center

National Labor Relations Board - Administrative Judge OpinionsMay 9, 2007

32-CA-022879 (N.L.R.B. May. 9, 2007)

JD(SF)-13-07 Pacific Grove, CA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES SAN FRANCISCO BRANCH OFFICE P.G.H.C.C., INC., d/b/a PACIFIC GROVE CONVALESCENT HOSPITAL and Case 32-CA-22879 32-CA-22894 SEIU UNITED HEALTHCARE WORKERS WEST, SERVICE EMPLOYEES INTERNATIONAL UNION Michelle M. Smith, Esq., Oakland, CA, for the General Counsel Maria Anastas, Esq., and Aaron Roblan, Esq., of Davis Wright Tremaine, LLP, San Francisco, CA, for the Respondent Bruce A. Harland, Esq., of Weinberg, Roger & Rosenfeld, Alameda, CA, for the Union DECISION Statement of the Case Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing in this matter was held before me in Pacific Grove, California on February 27, 28, and March 1, 2007. The charge in Case 32-CA-22879 was filed by SEIU United Healthcare Workers West, Service Employees International Union (Union) on October 13, 2006, and an amended charge was filed by the Union on January 30, 2007. The charge in 32-CA-22894 was filed by the Union on October 26, 2006. Thereafter, on January 30, 2007, the Regional Director for Region 32 of the National Labor Relations Board (Board) issued a consolidated complaint and notice of hearing alleging violations by P.G.H.C.C., Inc., d/b/a Pacific Grove Convalescent Hospital (Respondent) of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (Act). The complaint was orally amended at the hearing to add an additional Section 8(a)(1) allegation. The Respondent, in its written and verbal answer to the complaint allegations, denies that it has violated the Act as alleged. The parties were afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from Counsel for the General Counsel (General Counsel) and counsel for the Respondent. Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted, I make the following: JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 2 Findings of Fact I. Jurisdiction The Respondent is a California corporation with its office and principal place of business located in Pacific Grove, California where it is engaged in the operation of a convalescent hospital. In the course and conduct of its business operations the Respondent annually derives gross revenues in excess of $100,000, and has received federal Medicare funds in excess of $5,000. It is admitted and I find that the Respondent is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. The Labor Organization Involved It is admitted, and I find, that the Union is and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act, III. Alleged Unfair Labor Practices A. Issues The principal issue in this proceeding is whether the Respondent has violated Section 8(a)(1) and (5) of the Act by unlawfully causing the circulation of a decertification petition and thereafter withdrawing recognition from the Union. B. Facts John Lund has been the owner and president of the Respondent since January, 2006. 1 He owns and operates seven nursing homes in California, with a total employee complement of approximately 500 employees. He has been involved in collective bargaining negotiations, grievance matters, arbitration, informational picketing and handbilling, and similar labor relations matters with the SEIU at various facilities.2 He has always retained labor counsel prior to acquiring the nursing homes he owns and operates, including the Respondent, because, as Lund testified, “I knew, as a successor employer, I had certain rights and I knew that it was delicate what I could and couldn’t say…I didn’t want to do anything improper.” He has been involved in negotiating about a dozen contracts over a period of fifteen years. The Union and the Respondent’s predecessor had maintained a collective bargaining relationship for many years. Upon acquiring the Respondent Lund hired the Respondent’s then-current complement of employees after advising them that they would be hired subject to the wages, hours and conditions of employment established by the Respondent. Thereafter he recognized the Union as the collective bargaining representative of the Respondent’s employees, and his attorney commenced to bargain with the Union over an initial collective bargaining agreement. Since becoming the Respondent’s owner he has maintained contact with its administrator, John Jones, and has visited the facility about once a month to check in with Jones, make rounds, and oversee the operations. 1 All dates or time periods hereinafter are within 2006 unless otherwise stated. 2 The record does not indicate how many of his facilities are unionized. JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 3 Bargaining sessions were held on March 7, March 28, April 18, and June 26. At the June 26 bargaining session the parties entered into a document entitled “Tentative Agreements” which contains recognition provisions and several additional items, but nothing regarding wages and most economic matters. By September the parties had not had a subsequent bargaining session, but had exchanged letters proposing further bargaining dates. In early September Lund returned to the facility for a periodic routine visit. At a nurse station, one of the Certified Nursing Assistants (CNA’s), Monica Tonga, approached him and asked when the employees were going to get a raise. Several other CNA’s were working nearby and gathered around when they overheard Tonga’s question. Lund testified that he replied, “ I can’t give you a raise because I’m in negotiations with the Union currently.” According to Lund, nothing further was said about raises, and he made no mention of any employee being entitled to $18 per hour either with or without a union, infra. Then, according to Lund, another CNA who was present, namely Phillip Lamar, began asking Lund about the Respondent’s paid time off (PTO) policy. Lund explained the policy as best he could. He then asked if someone could get an employee handbook, which sets out the details of the policy. CNA Valerie Domenighini volunteered to do so while Lamar, according to Lund, “ran to his car to get his check stubs, because he didn’t think [PTO] was being…properly reflected on his checks.” Then, after the two employees returned, the conversation continued. At some point, Domenighini asked him, “how do we get rid of this Union?” Lund believes that only Lamar and Domenighini were present at the time. 3 Lund told her that he would have to get back to her on that and would get her an answer in a couple of weeks. Lund testified that he “knew it was a question that could get me into trouble if I answered it improperly, potentially an unfair labor practice." Following this visit Lund contacted his attorney about the matter, and received an email dated September 7, setting forth two ways the employees could remove the Union: by collecting signatures from a majority of bargaining unit employees on a petition stating they no longer wished to be represented by the Union, or by obtaining such signatures from at least 30 per cent of the employees in order to begin the election process through the Board. On his next visit to the facility some two weeks later, apparently on September 28, both Lamar and Domenighini approached him and Domenighini asked, “have you got something for me?” Lund said he did and gave her the email and walked away. There was no further conversation. Lund does not recall whether Domenighini and Lamar kept the email or, after reading it, immediately gave it back to him. Shirlita Castelo has worked for the Respondent for 17 years. She is currently making $13.83 per hour.4 She was present during the foregoing conversation between Lund and Tonga, who began the conversation as Lund happened to pass by the nurse station where 3 From a careful reading of the transcript it appears that not all the participants remained for the entire length of the conversation, as some participants remember some portions and not others, and some indicated that they needed to continue working since this spontaneous conversation was not during a break period. Nevertheless, it also appears that employees who had returned to work were working at or near the nurse station and were able to overhear portions of the remainder of the conversation between Lund, Lamar and Domenighini. 4 The record indicates that no employee was making more than $3.83 per hour, and that employees in certain job classifications were making considerably less. JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 4 Tonga and several other employees were working. After Tonga initiated the conversation by asking about a raise, other interested employees gathered around to hear Lund’s answer. Castelo’s version of the conversation is as follows: And she [Tonga] asking him when we can have the raise. And he said he cannot give us a raise because we still in the Union. And he [Lund] turned around as he said to Beth [Elizabeth Alcantara], Beth been there a long time and she should have $18.00 per hour but we still on the Union so she cannot have the $18.00. So Valerie [Valerie Domenighini] told us that, okay, we going to out of the Union, that’s what she said. CNA Elizabeth Alcantara has worked for the Respondent for nearly 19 years. She is currently making $13.83 per hour. Alcantara testified that when Tonga asked when the employees could get a raise, Lund replied, “…if you want the raise, you have to give up, you know, the Union.” Then Tonga, using Alcantara as an example, mentioned that Alcantara had been there almost 19 years and was “only getting thirteen something an hour.” To this Lund replied, “oh, so if you are not Union I can give you like $18.00 an hour.” Tonga worked for the Respondent for about four years. She left the Respondent’s employ on February 25, 2007, approximately three weeks prior to the hearing herein. Tonga began the colloquy with Lund by asking him “when we going to get a raise.” Tonga testified as follow regarding Lund’s response to her question: “His response was telling me and everybody else who was there that, I can’t do anything right now because I’m still under negotiating with Union.” According to Tonga, Lund said nothing about a raise for anyone to $18.00 per hour or about getting rid of the Union. Regarding the possibility of a wage increase, Tonga testified she understood from Lund’s answer, “that when they finished negotiating they might or might not [receive a wage increase], so I was satisfied with his answer.” Then, following this colloquy, Phillip Lamar, who was also present, began talking to Lund about other matters not concerning pay raises. Lamar has worked for the Respondent for three years. Lamar testified that Tonga asked Lund about the raise and Lund “said that we couldn’t get a raise because we were in Union negotiations.” Elaborating, Lamar testified Lund said, “That we’re in Union negotiations and he couldn’t give us raises, he has to go through them first.” Then Lamar began talking to Lund about a particular problem concerning his paycheck. Lamar does not recall any other discussion whatsoever regarding wage increases. Domenighini has worked for the Respondent since February 1. During her testimony Domenighini initially gave the following account of the conversation: Well, all of us were up at station two just doing out (sic) chit chat, messing around up there and John Lund came up and Monica had said to him, when are we going to get a raise? And at this time John said, well, I’m in negotiations with the Union at this time and all raises go through them. Immediately following this exchange, according to Domenighini, there was discussion of an unrelated matter raised by Lamar. JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 5 However, Domenighini then inconsistently testified that after Tonga asked Lund about raises, the subject of merit raises was discussed, and Lund said, “he thought that he could give us merit raises for the job performance that we did.”5 Then Domenighini gave yet a third version of the conversation, namely, that after Lund answered Tonga’s question, Domenighini explicitly told Lund that she thought his answer was “bull shit.” She said this because she was very much opposed to the Union and believed Lund’s answer “was bull because why do we have to go through the Union for a raise…I mean why can’t we just get the raise?” 6 Lund testified that no employees at any of his nursing homes make anything “even close” to $18.00 per hour. Tonga, who has been employed at various facilities, testified that she knows of no CNA’s who make as much as $18.00 per hour in a convalescent facility such as the Respondent’s, as distinguished from an acute care facility such as a community hospital which requires a totally different level of patient care. The record contains no contrary evidence. Lamar testified that he read the aforementioned email document handed to him by Lund and immediately returned it to him. He then prepared a decertification petition for employees’ signatures and began circulating the petition on September 29. On September 30 he gave the petition to Domenighini who continued the process. On October 1, Domenighini submitted the petition, containing 25 signatures,7 to Respondent’s Administrator, John Jones, and asked him if he would obtain two additional signatures, naming two employees who had, according to Domenighini, indicated a willingness to sign. Jones did so, infra. The parties stipulated that “During the payroll period ending September 30, there were 43 employees in the bargaining unit.” Thus, at the time Domenighini submitted the petition to Jones it had already been signed by a majority of bargaining unit employees. As noted above, Jones solicited the signatures of two employees, namely, Raul Datuin and Carmen Torre, on the petition. The Respondent admits that Jones’s conduct in this regard was improper. Datuin is no longer working for the Respondent and was apparently dismissed for cause. According to Datuin, Jones approached him at work and directed him to sign the petition. Jones told him that the Union was just taking his money, that a majority of the employees had already signed, that they needed numbers, and that this is what John Lund wanted. 5 No other witness to the conversation mentioned any discussion of merit increases. 6 Significantly, Domenighini also changed other portions of her testimony. She appeared to be attempting to adjust her testimony to whatever would support her particular interests. I do not credit her testimony except to the extent it is corroborated by other witnesses. 7 Neither Castelo nor Alcantara signed the petition. Tonga, who did sign the petition, testified she had two separate conversations with Castelo about the matter. During the first conversation Castelo asked her why she signed the petition and Torre said, “that’s my free will. I’m not going to interfere with you and you should not …interfere with me.” During the second conversation, much closer to the date of the hearing herein, Castelo said she was told by the Union that “we going to get, if you change your mind and change your story, we going to get a lot of money out from John Lund” in the form of back pay from January 2006. Tonga, who was leaving the Respondent’s employ, said she didn’t care and that she was not going to change her story because it was the truth. Castelo was not asked about the first conversation, but testified that the second conversation never occurred. JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 6 Carmen Torre testified that Jones approached her with the petition and said, “they trying to get rid of the Union and everybody sign it.” Jones said the Union is “good for nothing.” He also said, “And you can always change you mind if anything happens, any troubles, you always can come to me and ask me if we can fix any troubles.” 8 Torre was not asked whether Jones made this latter statement before or after she signed the petition. Jones testified that he is responsible for the day to day administration of the Respondent’s facility and has had no involvement with union negotiations or union matters. He is primarily responsible for patient care. Jones testified that Domenighini gave him the petition and told him there were two additional employees who were interested in signing. Without obtaining Lund’s permission, he approached them individually and simply asked if they wanted to sign. He did not know at the time that his conduct in this regard was improper. Datuin volunteered that he was very much opposed to the Union and signed the petition. Regarding his conversation with Torre, Jones does not recall whether he told Torre that a majority of the workers had already signed; however, after signing the petition Torre asked him a question about a payroll issue. He told her to go to the payroll person if she had a problem, “and if you can’t resolve it, contact me and I’ll help you.”9 On October 2, the same date Jones solicited the two aforementioned signatures, Respondent’s attorney sent the following letter to the Union: My client has advised me that an overwhelming majority of employees at the Pacific Grove facility have signed a petition seeking to remove your Union as their bargaining representative. Consequently, my client is hereby withdrawing recognition from the Union. Should you have any questions, please contact the undersigned. C. Analysis and Conclusions The General Counsel contends that Lund impliedly told the employees that the Union was the impediment to their receiving substantial wage increases, and that his comments were the catalyst for the decertification petition; therefore, the petition was tainted and the Respondent’s subsequent withdrawal of recognition was unlawful. I credit the testimony of Lund, Tonga, Lamar and Domenighini and find that Lund did not make the remarks attributed to him by Castelo and Alcantara. In particular I was impressed with Tonga’s account of the conversation. Tonga, who was no longer working for the Respondent at the time of her testimony, initiated the conversation and, insofar as the record shows, was the most neutral witness among the entire group. Thus, Domenighini and Lamar prepared and circulated the decertification petition and were the first to sign it, while Castelo 8 The complaint was orally amended at the hearing to further allege that, “On or about October 2nd, John Jones solicited and impliedly promised to remedy grievances.” 9 Torre was not called as a rebuttal witness and did not deny Jones’s testimony in this regard. JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 7 and Alcantara refused to sign it. 10 I also credit Tonga’s testimony that Castelo, at some point shortly prior to the hearing, attempted to cause her to change her account of the conversation and that Tonga adamantly refused, replying that she intended to tell the truth. Further, it is highly improbable that Lund would have made the statements attributed to him by Castelo and Alcantara. The record establishes that Lund is well acquainted with union- management labor relations matters and that he was not particularly acquainted with the employees; thus, he would not have known their union sentiments. Accordingly, he would not have made such overt anti-union remarks to this spontaneous gathering of employees as there was no way for him to know whether this alleged promise of approximately a 30 percent wage increase would cause employees to initiate a decertification petition, or would have the deleterious effect of causing the Union to increase its wage demands at the bargaining table and thereby present a stumbling block to the ongoing contract negotiations. Indeed, it would appear that the amount of the alleged wage increase is in and of itself so inordinate as to render Lund’s alleged remark highly implausible. The Respondent admits, and I agree, that Respondent’s Administrator, John Jones, unlawfully solicited the signatures of two employees on the decertification petition. I find that by such conduct the Respondent has violated Section 8(a)(1) of the Act. However, In the absence of any specific contrary testimony from Torre, I credit Jones’s testimony that Torre signed the petition prior to his remarks that she could come to the Respondent to attempt to resolve any problems. Therefore, I shall dismiss the allegation that Jones impliedly promised benefits to Torre in exchange for signing the petition. The parties stipulated that the petition contained 25 signatures before Jones solicited the final two signatures, and that there were 43 employees in the bargaining unit. From the foregoing, I find that the petition was not tainted by the Respondent’s conduct, that it was validly signed by a majority of bargaining unit employees, and that the Respondent’s withdrawal of recognition from the Union was not unlawful. Conclusions of Law and Recommendations 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a) (1) of the Act as found herein. The Remedy Having found the Respondent has violated and is violating Section 8(a)(1) of the Act, I recommend that it be required to cease and desist therefrom and from in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their 10 In this regard, I do not credit the rather implausible testimony of Castelo and Alcantara that they did not sign the petition because they were waiting to see if Lund would carry through with his promise to grant wage increases. If Lund had told them that the Union was the impediment to wage increases, as they testified, their reasoning makes no sense. JD(SF)-13-07 .5 10 15 20 25 30 35 40 45 8 rights under Section 7 of the Act. I shall also recommend the posting of an appropriate notice, attached hereto as “Appendix.” ORDER11 The Respondent, P.G.H.C.C., Inc., d/b/a Pacific Grove Convalescent Hospital, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting employees to sign a decertification petition. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the purposes of the Act: (a) Within 14 days after service by the Region, post at its Pacific Grove facility copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 32, after being duly signed by the Employer’s representative, shall be posted immediately upon receipt thereof, and shall remain posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Employer to ensure that the notices are not altered, defaced, or covered by any other material. (b) Within 21 days after service by the Regional Office, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated: May 9, 2007 _______________________ Gerald A. Wacknov Administrative Law Judge 11 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 12 If this Order is enforced by a judgment of the United States Court of Appeals, the wording in the notice reading, “Posted by Order of the National Labor Relations Board,” shall read, “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO: Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT solicit employees to sign a petition to decertify the SEIU, United Healthcare Workers West, Service Employees International Union as your collective bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the foregoing rights guaranteed them by Section 7 of the Act. P.G.H.C.C., INC, d/b/a PACIFIC GROVE CONVALESCENT HOSPITAL ________________________ (Employer) Dated: _______________ By: ________________________________________________ (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 1301 Clay Street, Federal Building, Room 300N Oakland, California 94612-5211 Hours: 8:30 a.m. to 5 p.m. 510-637-3300. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 510-637-3270.