Richmond Convalescent Hospital

National Labor Relations Board - Board Decisions

May 18, 1994

313 N.L.R.B. 1247 (N.L.R.B. 1994)

1247
313 NLRB No. 228
RICHMOND CONVALESCENT HOSPITAL
1 Bybee owns some shares of Chartham personally, while the re-
maining shares are held by D.R.B. Holdings, Inc., an Oregon cor-
poration wholly owned by Bybee, who serves as its president and
secretary.
2 Prestige neither filed an answer to the complaint nor appeared at
the hearing.
3 We adopt the judge’s findings, to which no exceptions were
filed, that the Respondents violated Sec. 8(a)(3) by discharging em-
ployee Maria Wells on September 4, 1991, because of her union ac-
tivities and violated Sec. 8(a)(5) by refusing to supply the Union
with a seniority list and related information on or about October 4,
1991, by refusing to assist the Union in selecting an arbitrator to re-
solve a grievance filed on behalf of Wells, and by refusing to bar-
gain with the Union over the effects of the transfer of ownership of
the facility to new owners in November 1991.
Richmond Convalescent Hospital, Inc., and
Chartham Management, Inc., and Prestige
Health Care of California, Inc. and Maria
Wells and Hospital and Health Care Workers
Local 250, Service Employees International
Union, AFL–CIO. Cases 32–CA–12038 and 32–
CA–12260
May 20, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On June 4, 1993, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
Since 1989, Richmond Convalescent Hospital, Inc.
(Richmond) operated a nursing home in Richmond,
California. In 1989, Richmond entered into a manage-
ment agreement with Chartham Management, Inc.
(Chartham) pursuant to which Chartham managed the
day-to-day operations of the facility. Don R. Bybee
was the owner, president, and director of Richmond
and Chartham at all relevant times.1
During all material times, the Union was the Section
9(a) representative of a bargaining unit of employees
at the facility. The most recent collective-bargaining
agreement between Richmond and the Union was ef-
fective from September 1, 1990, through August 31,
1992.
On June 1, 1991, Richmond terminated Chartham’s
management contract and entered into a nearly iden-
tical management agreement with Prestige Health Care
of California, Inc. (Prestige), a separately owned and
managed company. As the judge found, Richmond was
the employer of the facility’s employees, pursuant to
the terms of the management agreement, and Prestige
was Richmond’s agent. The judge found, and it is now
undisputed, that during the time Prestige managed the
facility, Respondents Richmond and Prestige2 (jointly
referred to as the Respondents) committed several un-
fair labor practices.3
In October 1991, Union Bank began foreclosure pro-
ceedings against the facility. Don R. Bybee, who held
a leasehold interest in the property, agreed to relin-
quish his interest in the property and the business to
the bank. Two previous owners of the facility, Dr.
Willie M. Shields Jr. and Cecelia Shields, took over
the facility on November 1, 1991, from Richmond.
1. The judge dismissed the complaint allegation that
the Respondents violated Section 8(a)(5) and (1) of the
Act by failing to remit to the Union dues deducted
from the employees’ paychecks since June 1, 1991.
The judge found that the evidence failed to show that
the Respondent did not remit the dues owed to the
Union. We disagree with the judge.
The judge found that the ledger card produced by
the Union was confusing and therefore failed to estab-
lish that the dues were not paid. In this regard, the
judge found that the entries on the card indicated dues
were paid on July 9, 1991, for March, April, May, and
possibly June 1991, but that because of handwritten
strikeouts and markings, the card failed to show that
the Respondents were in arrearage since June 1991, as
alleged in the complaint. The judge also found that the
testimony of Union Assistant Controller Maggie Mur-
phy regarding the card failed to clarify the evidence.
The judge noted that dues were paid in July 1991, 6
weeks after the complaint alleges that dues were
stopped, that the Union did not send letters to the Re-
spondents claiming an arrearage and demanding pay-
ment, and that it was logical to conclude that payments
were remitted because dues had been deducted from at
least one employee’s paycheck during the time in
question.
We do not agree with the judge’s reasoning. The
ledger card kept by the Union for the years 1991 and
1992 shows an absence of entries after July 9, 1991,
through the end of that year. Murphy, who supervised
dues collection, testified that she was familiar with the
method the Union used to record and track dues remit-
tances, that the card indicated that the last receipt of
dues in 1991 was on July 9 for the amount of
$1,944.86, and that the Union did not receive any fur-
ther dues payments in 1991 after that date. Although
the card contains some corrections and strikeouts, we
find that the card is sufficiently clear to support Mur-
phy’s testimony. The complaint’s reference to June 1,
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As the judge found, the Union had requested and Prestige had
agreed in September 1991 to arbitrate a grievance over Wells’ dis-
charge. However, Prestige never responded to the Union’s request to
contact the Union to select an arbitrator. On December 26, 1991,
about 7 weeks after the facility had been taken over, Prestige’s attor-
ney Springer wrote Martin a letter regarding a settlement proposal,
which the Union rejected.
1991, as the date the payments were stopped does not
militate against our finding of an arrearage after July
9, 1991.
Further, we find, contrary to the judge, that the
Union notified Prestige Owner Steve Ewing that the
Union had not received the dues payments. Thus, by
letter dated October 15, 1991, the Union wrote to
Ewing stating that the Company was behind in the
payments and inquiring as to the reason they were not
being forwarded promptly. In a November 5, 1991 let-
ter to Ewing, the Union referred to its need to discuss
an ‘‘accounting of dues and initiation fees refunded.’’
In addition, the record shows that Union Field Rep-
resentative John Martin orally informed Prestige Ad-
ministrator JoBeth Strawn of the dues arrearage. Con-
trary to the judge, we find the fact that the Respond-
ents continued to deduct dues from employees’ pay-
checks does not establish that the Respondent remitted
the dues to the Union.
The Respondents were required to remit the dues to
the Union pursuant to Richmond’s collective-bargain-
ing agreement with the Union. The Respondents do not
contend that the dues in question were in fact paid,
and the Respondents failed to proffer any evidence re-
butting that submitted by the General Counsel from
which a failure to remit is reasonably inferrable.
Accordingly, we find that the Respondents unilater-
ally failed to remit dues to the Union in violation of
Section 8(a)(5) and (1) of the Act. Sullivan Motor De-
livery, 301 NLRB 285 (1991).
2. The General Counsel excepts to the judge’s find-
ing that the Respondents did not fail to pay health plan
premiums to the health insurance company, Kaiser
Permanente, pursuant to the collective-bargaining
agreement between Richmond and the Union. We find
merit to this exception.
The record shows that Union Representative Martin
learned in early fall 1991 from an employee that Kai-
ser was refusing to pay a claim. He spoke with Pres-
tige Administrator Strawn, who acknowledged that
Prestige was in arrears at the time. In late October,
Strawn showed Martin a letter from Kaiser dated Octo-
ber 25, 1991, to Respondent Prestige. The letter stated
that Kaiser had received payments covering premiums
through July 1991 and that Prestige’s account was
being reinstated, but that if Prestige failed to make its
payments for August, September, October, November,
and December 1991 by November 15, 1991, the ac-
count would be ‘‘reterminated’’ effective September 1,
1991. The letter stated that as a condition of reinstate-
ment, premiums were due by the 15th of the month
preceding the month of coverage and threatened that
the account would not be reinstated if canceled in the
future due to nonpayment.
The judge found that the October 25, 1991 letter
from Kaiser to Prestige showed only that Prestige had
previously been in arrears and that it had made a suffi-
cient payment to satisfy the arrearage. The judge there-
fore concluded that there was insufficient evidence to
establish an 8(a)(5) violation because he found that late
payments to insurance companies are not violations of
the Act and it was not known whether subsequent pay-
ments were made, whether the insurance lapsed as
Kaiser threatened, or whether payment was timely
made on November 15, 1991.
We find, contrary to the judge, that the letter estab-
lishes on its face that the Respondents were in arrears
from August to November 1991, at which time the fa-
cility was taken over by a new employer. The Re-
spondents do not contend that payments were timely
made and proffered no evidence to show that they had
at any time paid the premiums in question. As the Re-
spondents were obligated to pay the premiums in ac-
cordance with the collective-bargaining agreement,
their failure to do so constitutes a unilateral change in
violation of Section 8(a)(5) and (1) of the Act. Stevens
& Associates Construction Co., 307 NLRB 1403
(1992); Domestic Steel Sales Co., 258 NLRB 785
(1981).
3. The judge found that the Respondents violated
Section 8(a)(5) and (1) of the Act by failing to bargain
over the effects of the transfer of the facility to the
Shieldses. The General Counsel excepts to the failure
of the judge to order a limited backpay remedy as set
forth in Transmarine Navigation Corp., 170 NLRB
389, 390 (1968). We find merit to the exception.
The Union first heard about a prospective takeover
when Union Representative Martin in October 1991
happened to speak to Dr. Willie M. Shields Jr., who
said he was going to be taking over the facility. Martin
wrote a letter to Prestige on November 5, 1991, stating
that he wanted to bargain about dues and initiation fee
obligations, health plan payments, the Wells’ arbitra-
tion,4 overtime pay, short pay, and sick leave.
In response, Prestige’s attorney Bettye Springer
called Martin, who told her that they had a lot of out-
standing issues to resolve. Springer told Martin that
she would have to contact him later after reaching her
client.
Martin again wrote to Prestige on November 26,
1991, requesting bargaining over the Wells’ arbitration
as well as bargaining over the effects of the transfer
of the facility to the Shieldses. The letter stated that
he was again requesting a meeting date to bargain over
effects. Springer never replied to the request to bar-
gain.
1249RICHMOND CONVALESCENT HOSPITAL
5 We note also that the General Counsel has not asserted that
Chartham was an alter ego of, or single employer with, Prestige, so
therefore there is no basis for finding that the actions of Prestige
under the post-June 1 management were attributable to Chartham
other than indirectly through Richmond.
The judge found, and the Respondents do not con-
test, that the Respondents never responded to the
Union’s requests to bargain over effects and therefore
violated the Act by depriving the Union of any oppor-
tunity to bargain over such issues as severance pay, se-
niority, pensions, health insurance, job security, and
other matters which might be affected by such a deci-
sion. However, the judge refused to order a
Transmarine remedy, finding that the requested rem-
edy has invariably been used in circumstances where
the employees affected by the change have lost their
jobs and has not been applied in cases where the af-
fected employees have remained employed. The judge
found that there was no showing that any employees
lost their jobs as a result of the transfer or that em-
ployees suffered any out-of-pocket loss. We disagree
with the judge.
In Live Oak Skilled Care & Manor, 300 NLRB
1040 (1990), the Board found a Transmarine remedy
warranted, reversing the judge’s finding that the rem-
edy was inappropriate where unit employees had suf-
fered no palpable loss as a result of the respondent’s
failure to engage in timely effects bargaining. In find-
ing that the employees had suffered financial losses as
a result of the transfer, the Board found that the union
might have secured additional benefits for employees,
had the respondent bargained in a timely manner over
effects. The Board noted that the union had imme-
diately requested, on learning of the sale of the facility,
that the respondent bargain over such issues as accrued
leave benefits, severance pay, pending grievances, and
payment of all wages and benefits due. The Board
found that the parties had reached settlement on a
grievance involving an employee, but that there were
unresolved issues relating to that grievance which
might have been resolved in timely effects bargaining.
The Board also found that the parties’ dispute over
overtime pay might have been resolved in timely ef-
fects bargaining, had the respondent lawfully provided
timecard and payroll records requested by the union.
We find Live Oak to be factually similar and legally
controlling in the instant case. Here, the Union, when
it learned second hand of the transfer, immediately re-
quested bargaining over several issues which were in
dispute between the parties, such as sick leave, over-
time pay, a pending grievance, and payment of other
wages and benefits due. As in Live Oak, the Respond-
ents rebuffed the Union’s attempts to resolve those
issues at a time when the Union might have secured
additional benefits for employees had the Respondents
bargained in a timely manner over effects.
Further, we observe that the record does not support
the judge’s suggestion that no employees lost their
jobs as a result of the transfer. The Respondents have
unlawfully refused to provide a list of employee names
to the Union, and the Respondents do not allege that
all employees were reemployed by the Shieldses. It is
therefore unknown whether all former bargaining unit
employees were hired by the Shieldses. That question
could have been resolved had the Respondents law-
fully provided the requested information, but they did
not. Under these circumstances, we are reluctant to
find that the General Counsel failed to show that any
employees lost their jobs, as the judge suggested.
Accordingly, we find that a limited backpay remedy
as set forth in Transmarine is appropriate in order to
give employees some compensation for their losses
and to re-create in some practicable manner a situation
in which the parties’ bargaining position is not entirely
devoid of economic consequences for the Respondents.
4. The General Counsel contends in his exceptions
that Chartham is jointly liable for Richmond’s unfair
labor practices because Chartham was a single em-
ployer with Richmond. We find no merit to this con-
tention because the evidence of the relationship be-
tween these two entities failed to establish that they
constituted a single employer under the Board’s four-
factor test during the relevant time period.
The unfair labor practices for which the General
Counsel would have found Chartham liable on a sin-
gle-employer theory are all alleged to have occurred
after June 1, 1991. The test for single-employer status
therefore logically applies only to the relationship be-
tween Chartham and Richmond after that date, and
evidence of their relationship prior to that date would
be relevant only to the extent it cast light on their sub-
sequent relationship.5
Under the Board’s long-established test, single-em-
ployer status is found when two nominally separate en-
tities are actually part of a single-integrated enterprise
so that, for all purposes, there is only a single em-
ployer. The Board’s inquiry focuses on four factors:
interrelations of operations, common management, cen-
tralized control of labor relations, and common owner-
ship. None of these factors, alone, is controlling, nor
need all of them be present, as single-employer status
ultimately depends on all the circumstances of the
case. Hydrolines, Inc., 305 NLRB 416, 417 (1991);
Emsing’s Supermarket, 284 NLRB 302 (1987), enfd.
872 F.2d 1279 (7th Cir. 1989). However, the Board
has determined that the first three factors are of par-
ticular importance, especially the centralized control of
labor relations. Id.
Applying these factors to the instant case, we find
that Chartham and Richmond were not a single em-
ployer at the time of the unfair labor practices or at
any relevant time thereafter. Richmond and Chartham
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We leave to the compliance stage of this proceeding any issues
arising from the November 1, 1991 takeover of the facility by the
Shieldses.
have shared common ownership and a sole director
and officer at all relevant times. Chartham ceased man-
aging the facility on June 1, 1991. There is no evi-
dence pertaining to the control of labor relations for
Chartham after Chartham ceased managing the Rich-
mond facility and there is no showing of any signifi-
cant interrelation of operations after that time. Thus,
although some records of Richmond have been stored
at Chartham’s office, there is no evidence of employee
interchange or commingling of funds, centralized ad-
ministration, transfers of equipment, or any other fi-
nancial integration. There is no common control over
day-to-day operations. Chartham has offices in Boise,
Idaho, and Los Angeles, California, as well as Oregon;
it has its own director of operations; and it is engaged
in other separate, distinct business enterprises, such as
managing leasing companies and processing offshore
workers’ compensation claims. Richmond operated
only the Richmond facility, with its sole office in
Richmond, and no longer employs any employees.
In sum, we find that the common management and
ownership of the two companies were the only factors
present during the relevant time periods. Common con-
trol of labor relations, a factor considered by the Board
to be of particular significance in establishing a single-
employer relationship, has not been shown. In view of
the absence of any other indicia of single-employer
status, we find that the common management and own-
ership of Richmond and Chartham are insufficient to
establish a single-employer relationship. See Frank N.
Smith Associates, 194 NLRB 212, 217–219 (1971).
As Chartham was not a single employer with Rich-
mond during the relevant time period, we agree with
the judge that Chartham is not jointly liable to remedy
the unfair labor practices found.
AMENDED REMEDY
In addition to the remedy provided for in the judge’s
decision, we shall order the Respondents jointly and
severally to restore the employees’ health insurance
coverage and make the employees whole by reimburs-
ing them for any expenses ensuing from the Respond-
ents’ failure to make the required payments, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), the
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Having found that the
Respondents violated Section 8(a)(5) and (1) of the
Act by failing and refusing to remit to the Union dues
checked off, we shall also order the Respondents to
make the Union whole for the Respondents’ failure to
abide by their obligation under the dues-checkoff pro-
vision in the contract, also with interest computed as
described above.6
Finally, we shall order that the Respondents pay
limited backpay to the employees in accordance with
the Board’s remedy in Transmarine Navigation Corp.,
supra, 170 NLRB 389, 390, by requiring that the Re-
spondents pay unit employees at their normal rate of
pay beginning 5 days after the Board’s decision until
the first of four events: (1) the date the Respondents
bargain to agreement with the Union on those subjects
pertaining to the effects of the transfer of the facility
on employees; (2) a bona fide impasse in bargaining;
(3) the Union’s failure to request bargaining within 5
days of the date of this Decision and Order, or to com-
mence negotiations within 5 days of the Respondents’
notice of desire to bargain with the Union; (4) the
Union’s subsequent failure to bargain in good faith;
but in no event shall the sum paid to these employees
exceed the amount they would have earned as wages
from the November 1, 1991 takeover of the facility to
the time they secured equivalent employment else-
where, or the date on which the Respondents shall
have offered to bargain in good faith, whichever oc-
curs sooner, provided, however, that in no event, shall
this sum be less than the employees would have earned
for a 2-week period at the rate of their normal wages
when last in the Respondents’ employ. Backpay shall
be based on earnings which the unit employees would
have normally received during the applicable period,
less any net interim earnings, and shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Hori-
zons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondents, Richmond Convalescent Hospital, Inc.,
Richmond, California, and Prestige Health Care of
California, Inc., Bedford, Texas, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Hospital
and Health Care Workers Local 250, Service Employ-
ees International Union, AFL–CIO by refusing to pro-
vide to it a seniority list and related information, by
refusing to bargain with it over the effects of the trans-
fer of ownership which occurred in November 1991,
and by refusing to join with that labor organization in
selecting an arbitrator to decide contract disputes after
agreeing that such disputes should be submitted to ar-
bitration.
(b) Discharging employees or otherwise discriminat-
ing against any employee with respect to his or her
1251RICHMOND CONVALESCENT HOSPITAL
7 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.’’
hire or tenure because they have supported, have been
a steward for, or acted on behalf of the Union or any
other labor organization.
(c) Failing and refusing to pay health plan premiums
in accordance with the applicable collective-bargaining
agreement.
(d) Failing and refusing to remit dues checked off
pursuant to the applicable collective-bargaining agree-
ment.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, immediately provide to the Union a
seniority list as of October 4, 1991, showing the fol-
lowing information: a list of employees employed in
the bargaining unit, by department, which includes
their hire date, their employment status, and the shift
to which they were assigned.
(b) On request, bargain in good faith with the Union
with respect to the effects the November 1991 transfer
of the facility to Willie M. Shields and Cecelia Marie
Shields may have had on the employees’ wages, hours,
and terms and conditions of employment.
(c) Pay limited backpay to the unit employees in the
manner set forth in the amended remedy section of this
decision.
(d) Offer Maria Wells immediate and full reinstate-
ment to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights and privileges she
previously enjoyed, and make her whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against her, in the manner set forth
in the amended remedy section of this decision.
(e) Remove from their files, and ask the Shieldses
to remove from their files, any reference to the unlaw-
ful discharge of Maria Wells and notify her in writing
that this has been done and that the discharge will not
be used against her in any way.
(f) Restore the unit employees’ health insurance
coverage and make unit employees whole, in the man-
ner set forth in the amended remedy section of the de-
cision.
(g) Remit to the Union dues checked off pursuant to
the provisions of the collective-bargaining agreement
and valid authorizations, and required by the agree-
ment to be turned over to the Union by the Respond-
ents, in the manner set forth in the amended remedy
section of this decision.
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of payments
due under the terms of this Order.
(i) Post at or cause to be posted at the facility lo-
cated at 1919 Cutting Boulevard, Richmond, Califor-
nia, signed copies of the attached notice marked ‘‘Ap-
pendix.’’7 Copies of the notice on forms provided by
the Regional Director for Region 32, after being signed
by the Respondents’ authorized representatives, shall
be posted by the Respondents immediately upon re-
ceipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any
other material. In the event that it is not possible to
post the notice at the facility in question, the Respond-
ents shall cause signed copies of the notice to be
mailed to all employees on the payroll of the facility
on November 1, 1991.
(j) Notify the Regional Director for Region 32 in
writing within 20 days from the date of this Order
what steps the Respondents have taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed as to Chartham Management, Inc.,
and that it be dismissed as to all allegations not spe-
cifically found to be violations of the Act.
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 fail to bargain in good faith with
Hospital and Health Care Workers Local 250, Service
Employees International Union, AFL–CIO by refusing
to provide to it a seniority list and related information,
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The evidence actually shows that there were never any agree-
ments between Chartham and Prestige. These two entities never had
any relationship whatsoever. They were both hired by Respondent
Richmond to perform the same task during different time periods.
by refusing to bargain with it over the effects of the
transfer of ownership which occurred in November
1991, and by refusing to join with that labor organiza-
tion in selecting an arbitrator to decide contract dis-
putes after agreeing that such disputes should be sub-
mitted to arbitration.
WE WILL NOT discharge employees or otherwise dis-
criminate against any employee with respect to his or
her hire or tenure because they have supported, have
been a steward for, or acted on behalf of the Union or
any other labor organization.
WE WILL NOT fail and refuse to pay health plan pre-
miums in accordance with our collective-bargaining
agreement with the Union.
WE WILL NOT fail and refuse to remit dues checked
off pursuant to our collective-bargaining agreement
with the Union.
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, on request, immediately provide to the
Union a seniority list as of October 4, 1991, showing
the following information: a list of employees em-
ployed in the bargaining unit, by department, which in-
cludes their hire date, their employment status, and the
shift to which they were assigned.
WE WILL, on request, bargain in good faith with the
Union with respect to the effects the November 1991
transfer of the facility to Willie M. Shields and Cecelia
Marie Shields may have had on the employees’ wages,
hours, and terms and conditions of employment.
WE WILL pay limited backpay to the unit employees
for the period specified by the National Labor Rela-
tions Board, with interest.
WE WILL offer Maria Wells immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights and privi-
leges she previously enjoyed, and make her whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against her, less any net in-
terim earnings, plus interest.
WE WILL remove from our files and WE WILL ask
the Shieldses to remove from their files any reference
to the unlawful discharge of Maria Wells and notify
her in writing that this has been done and that the dis-
charge will not be used against her in any way.
WE WILL restore the unit employees’ health insur-
ance coverage and make unit employees whole, with
interest.
WE WILL remit to the Union dues checked off pur-
suant to the provisions of the collective-bargaining
agreement and valid authorizations, and required by
the agreement to be turned over to the Union by us.
RICHMOND CONVALESCENT HOSPITAL,
INC.
PRESTIGE HEALTH CARE OF CALIFOR-
NIA, INC.
Ariel Sotolongo, Esq., for the General Counsel.
James M. Nelson (Diepenbrock, Wulff, Plant & Hannegan),
of Sacramento, California, for Respondents Richmond
Convalescent and Chartham Management, Inc.
Paul D. Supton (Van Bourg, Weinberg, Roger & Rosenfeld),
of San Francisco, California, for Charging Party Local
250.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Oakland, California, on February 23,
1993, on a consolidated amended complaint issued on July
6, 1992, by the Acting Regional Director for Region 32 of
the National Labor Relations Board. The consolidated com-
plaint is based on a charge filed by Maria Wells, an individ-
ual, on September 9, 1991, amended on July 2, 1992, and
a charge filed by Hospital and Health Care Workers Local
250, Service Employees International Union, AFL–CIO (the
Union) on December 26, 1991, and twice amended, the last
on March 13, 1992. It alleges that Richmond Convalescent
Hospital, Inc., Chartham Management, Inc., and Prestige
Health Care of California, Inc. have committed certain viola-
tions of Section 8(a)(5), (3), and (1) of the National Labor
Relations Act (the Act).
Issues
The unfair labor practice issues to be decided are whether
Respondent(s) violated Section 8(a)(5) and (1) of the Act by
failing to remit to the Union moneys which it had deducted
from the employees’ paychecks for the purpose of paying
their union dues under the union-security clause of a collec-
tive-bargaining agreement and whether it breached the bar-
gaining obligation by failing to make health care plan pay-
ments on behalf of the unit employees as required by the col-
lective-bargaining agreement and Section 8(d) of the Act.
Furthermore, the complaint alleges that Respondent(s) failed
to provide the Union with certain information such as a se-
niority list and connected matters, material regarding Re-
spondent(s)’ alleged failure to make health plan payments, an
alleged failure to remit dues to the Union, and declining to
send the Union a copy of the sales contract between Re-
spondents Prestige and its ‘‘predecessor’’ Chartham.1
1253RICHMOND CONVALESCENT HOSPITAL
2 I denied the General Counsel’s motion under Board Rule 102.20
seeking what is essentially a default judgment against Respondent
Prestige. I based the denial on the General Counsel’s contention that
Prestige was a joint employer with Respondents Richmond and
Chartham. Because all three were alleged to be joint employers, their
answer would also speak for Prestige, at least to the extent that an
appropriate answer had been filed.
The complaint also asserts that on or about November 1,
1991, Respondent(s) transferred ownership of the business to
Willie M. and Cecelia Marie Shields and that Respondent(s)
failed and refused to give the Union sufficient notice of the
transfer to afford it the opportunity to engage in meaningful
negotiations concerning the effects of the transfer.
Finally, the complaint alleges that Respondent(s) violated
Section 8(a)(3) and (1) of the Act by its discharge of em-
ployee Maria Wells and violated Section 8(a)(5) and (1) of
the Act when it failed to respond to the Union’s request to
submit Wells’ discharge to binding arbitration under the
terms of the collective-bargaining agreement. It goes on to
assert that when taken together the foregoing conduct con-
stitutes a repudiation of the contract and withdrawal of rec-
ognition of the Union.
The case is complicated by the fact that two of the entities
which owned and/or operated the business at various points
are related to one another, yet others are not. The General
Counsel has asserted that Respondent Richmond and Re-
spondent Chartham are a single employer under the Act and
that those two entities later became joint employers with Re-
spondent Prestige. As will be seen, Respondents Richmond
and Chartham filed an answer and appeared at the hearing;
Prestige neither filed an answer nor appeared.2 Nonetheless,
Respondents Richmond and Chartham assert that they are not
responsible for the unfair labor practices, all of which oc-
curred during the time when Prestige managed the facility.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Both the Gen-
eral Counsel and Respondents Richmond and Chartham have
filed briefs which have been carefully considered. Based on
the entire record of the case, as well as my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At the hearing Respondents Richmond and Chartham con-
ceded that the business in question, a skilled nursing home-
convalescent hospital facility, meets the Board’s discretionary
standard for the assertion of jurisdiction over nursing homes.
Thus, the employing entity or entities, whatever it or they
may be, qualifies as an employer engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The answer admits the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As previously alluded to, all the Respondents have been
involved, in one role or another, in the operation of the nurs-
ing home in question, located at 1919 Cutting Boulevard in
Richmond, California (the facility). During the material time
period, the latter half of 1991, the Union was the Section
9(a) representative of a bargaining unit of employees at the
facility. These employees include licensed vocational nurses,
nursing assistants, housekeepers, cooks, and the like. The
then-current collective-bargaining agreement covering these
employees at the facility was effective from September 1,
1990, through August 31, 1992. Nancy Herrera, the Union’s
field representative who negotiated the contract on the
Union’s behalf, testified that negotiations had actually begun
sometime in September 1990 and were concluded in October
1990. However, the contract was not actually signed until
April 22, 1991. On that date it was executed solely on behalf
of Respondent Richmond by its president, Don R. Bybee. In-
deed, the signature of the union official who signed it is
dated even later, May 20, 1991. Herrera testified that the rea-
son for the delay was Bybee’s request that he be given time
to review it. That delay is consistent with the terms of the
Richmond-Chartham management contract quoted below.
Although Bybee signed on behalf of Respondent Rich-
mond, that company did not appear to be actively managing
the facility at the time. According to Bybee, and supported
by the management agreement between Richmond and
Chartham dated August 1, 1989, Chartham had for some
time been the day-to-day operator of the business. That con-
tract, signed by Bybee on behalf of both corporations, de-
scribed Richmond Convalescent Hospital, Inc., an Oregon
corporation, as the ‘‘Owner.’’ It also described Chartham
Management, Inc., also an Oregon corporation, as the ‘‘Man-
ager.’’
The manager’s duties are described in great detail begin-
ning on page 2 of that agreement. In addition, at least one
portion of that section declares the owner to be the employer
of the employees working at the facility. I quote the pertinent
portion:
MANAGER’S DUTIES
During the period commencing with the opening date
and continuing until the termination of this agreement,
which period is hereinafter referred to as the operating
period, the Manager shall use its best efforts in the
management and operation of the business, services and
sales of the Facility so that the Facility and its services
will be operated and maintained with the maximum of
profit and in a first quality manner and so that the Fa-
cility shall remain a first quality convalescent center. In
pursuance of the foregoing, the Manager shall perform
the following services:
. . . .
2) Employ, at the expense of the Owner, such
resident administrator, assistant administrators, em-
ployees, agents, clerks and staff at the Facility as
may be required to continue the standard and quality
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of management and operation at a level not lower
than that heretofore maintained. Except for the ad-
ministrator, as hereinafter provided, all of such em-
ployees shall be on the Owner’s payroll and the
Manager shall not be liable to such employees for
their wages or compensation, nor shall the Manager
be liable to the Owner or others for any act or omis-
sion on the part of such employees, unless the Man-
ager has failed to use reasonable diligence in their
hiring, discharge of supervision so as to maintain a
staff of qualified, competent, and trustworthy employ-
ees. The Owner shall have the right to discharge, or
require the Manager to discharge, any such em-
ployee. The Manager will negotiate, on the Owner’s
behalf, with any labor union lawfully entitled to rep-
resent such employees, but no collective bargaining
agreement or labor contract resulting from such ne-
gotiations shall be valid unless executed by the
Owner. The Manager will not at any time enter into
any agreement with any employee for a period in ex-
cess of one year or for compensation in excess of
$50,000 per year without the consent in writing of
the Owner. The Manager shall procure and maintain
adequate workmen’s compensation insurance, in the
name of and at the expense of the Owner, covering
all of the Owner’s employees. [Emphasis added.]
As can be seen, Respondent Richmond reserved to itself
the obligation to be the employer of the rank-and-file em-
ployees at the facility. It did delegate most matters to the
manager, including the right to require the manager to nego-
tiate any collective-bargaining agreement but only subject to
the owner’s approval. Indeed, almost all matters, even work-
men’s compensation insurance, was to be taken in the name
and at the expense of the owner, Respondent Richmond.
Union Official Herrera testified that in 1990 the individual
who negotiated the collective-bargaining contract on behalf
of Richmond Convalescent was Dr. Norma Jackson, the
Chartham administrator. Consistent with the terms of the
management agreement, she never dealt with Richmond’s
Bybee, although Bybee subsequently signed it. Indeed, she
said she never even met Bybee until well after negotiations
had been concluded and that their meeting occurred over an
unrelated matter.
Bybee testified that he owns and operates approximately
35 corporations, including Respondents Chartham and Rich-
mond. He acknowledges that he is the president, sole direc-
tor, and sole shareholder of Richmond. At the time of the
hearing, that corporation no longer employed anyone and
was not actively operating anything. He is also the president
and secretary of Chartham as well as a director. He says he
is one of Chartham’s two shareholders: he owns some shares
personally while the others are held by another Oregon cor-
poration which he also controls.
As noted, the Richmond-Chartham management agreement
is signed by Bybee on behalf of both corporations. Bybee
says at the time he signed it, August 1989, Chartham em-
ployed about 35 employees. Headquartered in Salem, Or-
egon, it also had offices in Boise, Idaho, and Los Angeles,
California. He described Chartham as a company which man-
ages leasing companies, processes offshore workers’ com-
pensation claims, and manages real estate, including rental
property and nursing homes.
Bybee says Chartham has its own director of operations,
an individual named Brent Barraclough. He adds that
Barraclough, whose office was in Salem, had no day-to-day
responsibility over the facility; only Dr. Jackson, the admin-
istrator, did.
On June 1, 1991, Respondent Richmond, through Bybee,
entered into another management agreement, this time with
a California corporation called Prestige Health Care of Cali-
fornia, Inc., the third Respondent. Bybee testified without
contradiction that neither he nor any other of his corporations
has any ownership interest in Respondent Prestige. He says
Prestige is a corporation either owned or controlled by one
Steve Ewing who has offices in Bedford, Texas. The man-
agement agreement between Respondent Richmond and Re-
spondent Prestige was signed by both Bybee and Ewing.
That contract is nearly identical to the management con-
tract which Richmond had earlier signed with Chartham. In-
deed, the quoted portion of the Richmond Chartham agree-
ment describing the manager’s duties is virtually congruent
with the language later found in the Richmond-Prestige man-
agement agreement (with two insignificant exceptions).
In June, on Richmond’s signing of the management agree-
ment with Respondent Prestige, Chartham disappeared from
the scene. Prestige appointed its own administrator, one
JoBeth Strawn. She rapidly took over operation of the facil-
ity. I note, in this regard, that until Respondent Prestige took
over, paychecks were drawn on the account of Respondent
Richmond, not Chartham. See the paystubs in evidence as
General Counsel’s Exhibit 17. However, on Respondent
Prestige’s takeover, paystubs began being issued in the name
of ‘‘Prestige Care Center of Richmond.’’ There is nothing in
the record to explain the difference in the names of the two
Prestige entities.
Nonetheless, according to the newly signed management
agreement, Respondent Richmond continued to reserve to
itself the status of the direct employer of the employees, at
least until October 1991 when foreclosure proceedings were
begun against the facility by the Union Bank. In addition, it
seems that Richmond’s lease of the realty from Bybee was
about to expire. Bybee could not remember the date of the
expiration, saying that it was either June 1991 or November
1991. Bybee testified that he had personally signed a mort-
gage with the Union Bank covering the real and personal
property of the facility.
In late October, Bybee says, two previous owners of the
facility, and then-current holders of a second mortgage, Dr.
Willie M. Shields Jr. and Cecelia Shields, appeared on the
scene, apparently to protect their interests. Bybee says they
had become aware of the facility’s financial straits and made
an arrangement with the Union Bank whereby Bybee would
agree to relinquish both the property and the business to the
bank and the bank would negotiate a new arrangement with
the Shieldses who would then take over the facility. Bybee
agreed. The arrangement released Bybee from the first mort-
gage to the Union Bank of approximately $1.4 million and
from the second mortgage to the Shieldses of between
$500,000 and $600,000.
1255RICHMOND CONVALESCENT HOSPITAL
B. The Alleged Unilateral Changes
The complaint asserts that the operator of the facility com-
mitted two unilateral changes of a material and substantial
nature. These are the alleged failure to remit dues to the
Union which had been deducted from the employees’ pay-
checks. Section 3 of the collective-bargaining contract is a
standard union-shop clause which requires employees in the
bargaining unit after a 31-day grace period to tender periodic
dues and initiation fees uniformly required by the Union as
a condition of being employed. Section 4 of the contract pro-
vides that in the event an employee submits a voluntary writ-
ten assignment of wages for the amount of his or her union
membership fees, the employer would honor it and would
‘‘promptly remit the money deducted pursuant to such an as-
signment’’ to the Union, together with a written statement of
the names of employees for whom the deductions had been
made.
The complaint asserts that since about June 1, 1991, Re-
spondent(s) have failed to remit the money deducted from
the employees’ paychecks to the Union. Furthermore, it as-
serts that on about October 11, 1991, Respondent(s) discon-
tinued deducting union dues from the paychecks.
In support of these allegations the General Counsel called
the Union’s assistant controller, Maggie Murphy. Murphy did
not provide any firsthand knowledge of the circumstances,
but pointed to a ledger card which the Union maintained for
Richmond Convalescent Hospital, Inc. (G.C. Exh. 5.) She
testified that such ledger cards are maintained for those em-
ployers who remit employees’ dues which have been de-
ducted from their paychecks. Each time an employer sends
such dues to the Union, an entry is supposed to be made by
hand on the card for the appropriate month. As noted, the
employer is to submit a list of names of the employees for
whom the dues are being paid. The Union uses that list to
mark those employees as paid for the month in question.
Murphy said that if an employer fails to send in the dues,
no entry is made on the card and the month in question is
left blank.
General Counsel’s Exhibit 5, however, did not follow that
particular procedure. Originally created as a ledger card for
the year 1991, it has been modified to include portions of
both 1991 and 1992. With respect to 1991 it shows that the
January and February dues were paid in May and that the
March, April, May, and possibly June dues were paid on
July 9. A heavy black line has been drawn between the
preprinted months of May and June and the year ‘‘1992’’ has
been interlineated at that point. A handwritten note in ‘‘re-
marks’’ says: ‘‘4 thru 6–91.’’ Although that could mean the
months of April, May, and June, another entry date-stamped
July 9 shows some credit for March. The testimony also
shows that the entry for June is actually two entries, one for
July 9, 1991, and another for August 17, 1992. Those two
entries are nearly illegible due to the fact that the second
date has been written over the top of the first. In any event,
the card shows that on July 9, 1991, Respondent Prestige
sent the Union checks for approximately $2000 to cover cer-
tain dues. It contains a note that the checks were not accom-
panied by a printout or list of employee names. In the space
for June, there is also an entry showing that a payment of
$1,628.55 had been received. It is unclear to what that entry
relates, for the date July 9, 1991, has been overwritten as
August 17, 1992. A further lack of clarity results from the
fact that the July 9 entry appearing for May and June are
bracketed together despite the heavy black line.
Whatever significance that ledger card may have, Murphy
was able to testify only that she regarded the ‘‘account’’ as
being delinquent because there were no 1991 entries appear-
ing after July 9 of that year. Also on the card is a label
which originally listed Richmond Convalescent Hospital as
the employer together with Chartham Management. The label
now contains a strikeout of the words ‘‘Chartham Manage-
ment’’ with the handwritten replacement: ‘‘Prestige
Care/Shields.’’ It is a most confusing card. Murphy’s testi-
mony does little to clarify it.
Neither Murphy nor any other union official testified that
the Union had ever sent Prestige or Richmond a notice of
arrearage or a demand for payment. Respondents Richmond
and Chartham’s answer to the complaint denies failing to
remit the dues. Yet the card itself appears to be the Union’s
admission that dues were remitted on July 7, 1991, about 6
weeks after the complaint alleges that dues stopped being
sent. Furthermore, the three paystubs which are in evidence,
General Counsel’s Exhibit 17, show that union dues were
being deducted from the paychecks of at least one employee
during the months of June and July.
Union Field Representative John Martin testified that he
had been assigned to talk to some employees who had be-
come delinquent. He says when he spoke to them, they told
him the dues money had been taken from their checks and
asked him what the Union was doing with his or her money.
Martin testified, ‘‘And then I would go to the Administrator
[Strawn] and say, ‘Well, what are you doing with our
money? You are not forwarding it to the Union, but you are
deducting it from everybody’s paycheck.’ And they had done
it more than once, apparently. And it was kind of a messy
situation. And we were trying to, hopefully, help the business
department get it straightened out. Get everybody a little
calmed down about where their dues money was at.’’
Yet Martin never testified what the administrator’s re-
sponse was, if any, to his question. There is no other evi-
dence with respect to the dues remittance allegation.
Frankly, it is my opinion that the state of the evidence
here is inadequate to demonstrate that Respondent(s) ceased
remitting the dues as alleged in the complaint. The ledger
card on its face shows that dues were in fact paid in July,
although credited to the months of March, April, May, and
perhaps June. The only evidence showing that no payments
were made thereafter is a supposed absence of entries after
June 1991. Yet even the absence is not clear from the card
because it has been usurped by 1992. Even without that con-
fusion, the absence of a handwritten entry on a ledger card
would be insufficient evidence to demonstrate that payments
have not been made had the card otherwise shown no irreg-
ularities. Yet on its face this card is decidedly irregular and
I cannot conclude based on the card alone that dues were not
being remitted. In fact, given the state of the paystubs, show-
ing that dues were actually being deducted from at least one
employee’s paycheck, it would be more logical to conclude
that they were being deducted for the purposes of remittance
and that remittance is more probable than not.
Whatever meaning the card may have, it would have been
a simple matter for the Union to have sent letters to the Em-
ployer claiming an arrearage and demanding payment. It did
not. Moreover, no union official testified to an employer ad-
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Elsewhere in this decision, I note that the facility was transferred
to the Shieldses on or about November 1.
mission that the dues were not remitted. Accordingly, I con-
clude that the evidence is insufficient to show that Respond-
ent(s) failed to remit dues beginning in June 1991.
With respect to the contention that Respondent(s) stopped
deducting dues altogether in October 1991, there is abso-
lutely no evidence whatsoever in the record dealing with that
issue. Accordingly, it too must be dismissed.
The other alleged unlawful unilateral change is the conten-
tion that beginning on June 1, 1991, Respondent(s) failed to
pay premiums to the health insurance company, Kaiser
Permanente, a health maintenance organization.
Field Representative Martin testified that he learned in the
early fall of 1991 from one of the employees that Kaiser
Permanente was refusing to pay a claim being made by an
employee who had a family member suffering from a termi-
nal illness. He says he went to investigate the matter and
spoke with Administrator Strawn who acknowledged that Re-
spondent Prestige was in arrears at the time. In late October,
however, Strawn showed Martin a letter from Kaiser directed
to Prestige acknowledging that the May, June, and July pay-
ments had been made and the health plan had been rein-
stated. The letter also contained a threat that in the event the
payments for August, September, October, November, and
December were not paid by November 15, 1991, the account
would be terminated again, effective September 1, 1991. The
letter, in evidence as General Counsel’s Exhibit 12, is proof
both that Respondent Prestige had been in arrears but also
that it had made a sufficient payment to satisfy the arrearage.
There is, however, no proof whatsoever regarding what hap-
pened thereafter. It is not known whether subsequent pay-
ments were made, whether the insurance lapsed as Kaiser
threatened, or whether payment was timely made on Novem-
ber 15.3
Again, the evidence is insufficient to make out a violation
of Section 8(a)(5) and (1). Late payments to insurance com-
panies are not violations of the Act. Accordingly, this allega-
tion must be dismissed.
C. Maria Wells
Maria Wells was hired in January 1990 and was dis-
charged on September 4, 1991. She had become the Union’s
shop steward in April 1990 and worked at the facility as a
certified nurses assistant. Her normal line of authority was to
report either to the charge nurse on her floor or to the direc-
tor of nursing. She continued to be the Union’s steward from
her April 1990 appointment through her discharge in Sep-
tember 1991.
She regards her direct employer as first being Chartham,
followed by Prestige in July 1991. She remembers sometime
in July new Administrator Strawn called her to the office to
tell her that there was about to be a changeover, but said
Strawn never actually mentioned the name of the company
which was taking over. On the day the name ‘‘Prestige’’ was
actually brought to the employees’ attention, Wells was on
her day off. Beginning July 5 Wells, in her capacity as shop
steward, began to deal regularly with Strawn. Resolution of
grievances at the early stages was one of Wells’ principal
priorities. She even remembers that the first grievance dealt
with a change in paydays.
On July 25, she and Martin met with Strawn to try to re-
solve the question of the payday change as well as some ap-
parent short pay claims. It was on this occasion that she first
became aware of Prestige’s corporate president, Steve Ewing.
Strawn had arranged for Ewing to participate in the meeting
from Texas via speakerphone and Wells was present as Mar-
tin and Ewing discussed the grievance. Later, on August 2,
again while on her day off, she had her own conversation
with Ewing regarding paydays. She testified that Ewing
called her at home to advise her of a proposed change. She
remembers responding that he needed to give her a full 10
days’ notice before instituting such a change and the notice
he was giving her was insufficient.
Wells says between July and her discharge in September,
she met with Strawn approximately 15 to 20 times per month
either regarding grievances or being present while an em-
ployee was being disciplined.
In August, Wells became aware of some difficulties in-
volving the laundry room’s inability to consistently distribute
clean laundry to the various departments. She concluded that
there was not sufficient personnel to get the laundry distrib-
uted properly. Such problems occurred approximately six
times between August 15 and September 4.
September 4 was a day on which Ewing visited the facil-
ity. On that day a laundry employee reported to Wells that
Ewing was in the building and asked Wells if she would
speak to him about the laundry problem.
Accordingly, Wells introduced herself to Ewing and asked
him to accompany her while she showed him the problem.
The two went to the laundry where she showed him stacks
of clean towels, linens, and clothing piled to the ceiling. She
remarked that not only was there not enough manpower to
distribute it, but the status of the laundry room constituted
a health code violation if it were to be discovered during a
health department inspection. She also told him she regarded
it as a fire hazard. Wells says Ewing told her he would take
care of the matter, but gave her what she described as a
‘‘hard look.’’ Their tour of the laundry area ended about
12:45 p.m.
Prior to that date, Wells had normally worked a shift
which began at 6 a.m. and ended at 2:30 p.m. That shift dif-
fered by an hour from the shift normally worked by other
day-shift employees. Their shift was from 7 a.m. to 3:30
p.m. Two years previously Wells had been given the dif-
ferent shift to accommodate a school schedule. However, her
school needs were not consistent and she often had time in
the afternoon to discuss or participate in grievance matters
after her shift ended.
Shortly before her shift ended that afternoon, at approxi-
mately 2:25 p.m., Strawn called Wells to her office. Nursing
Director Nanny Bonner was also present. Strawn told Wells
she was being terminated because she had not changed her
shift. Before Strawn could go further, Wells left the room to
obtain the presence of a steward. She returned a short time
later with two of them. Strawn resumed saying the shift
change had been posted, but Wells had not honored it.
Bonner contended that the Company had advised Wells of
the shift change some 3 weeks before. Wells replied she had
not been present at the facility 3 weeks previously, because
she was off on the days in question with a bad ankle. More-
over, Wells asserted that the change had not been posted and
that her shift hours had not been modified.
1257RICHMOND CONVALESCENT HOSPITAL
4 Taylor testified that on September 4 sometime between 3:30 and
4 p.m., she had been in the front dining room where she overheard
Ewing and Strawn speaking together. She said she heard Ewing ask
Strawn ‘‘if she did it?’’ and Strawn had replied, ‘‘Yes, but . . . .’’
Ewing interrupted telling Strawn, ‘‘No buts . . . . You make sure,
when you terminate her, you make sure you have her paycheck
ready.’’
At that point one of her fellow stewards took over and ob-
tained Wells’ agreement to change her shift if the Company
would withdraw its decision to terminate her. According to
Wells, the matter was resolved with the conclusion that she
would not be fired but would change her shift to begin at
7 a.m. and work until 3:30 p.m. on her next scheduled work-
day, after her weekend off. The meeting ended at 2:50 p.m.
Shortly thereafter at 3 p.m., pursuant to a prior arrange-
ment, Wells met Martin and the two of them conducted a
meeting with the laundry manager and a laundry employee.
The meeting actually took place in Strawn’s office, although
Strawn was not present, having given them the office for that
purpose.
The meeting was interrupted by employee Janet Taylor
who advised that she had just overheard a conversation be-
tween Ewing and Strawn in which Ewing had given Strawn
a specific direction to discharge someone. Although the per-
son’s name was not mentioned, Taylor had concluded that
they were speaking about Wells and had come to tell Wells
and Martin what she had heard.4
Shortly after the meeting was over, Strawn reclaimed her
office and asked to speak to both Martin and Wells. Strawn
then told Wells she was being terminated and gave her a ter-
mination slip. The slip asserts that Wells was being dis-
charged because of her ‘‘Refusal to report to work at the
scheduled shift beginning 7–3:30 p.m.’’ Wells declined to
sign it, and Martin wrote on it that the discharge was being
protested as the accusation was incorrect.
There is no evidence that anyone else was terminated on
that day and at that hour.
The foregoing evidence demonstrates that the General
Counsel has made out a prima facie case that Wells’ dis-
charge was for reasons prohibited by Section 8(a)(3) and (1)
of the Act. She was a union steward who took her duties se-
riously and actively worked on behalf of the employee staff.
She was involved early with Ewing in the payday change
and the short paycheck matters; on one occasion she told
Ewing that the contract required 10 days’ notice to change
paydays, and his notice to her was insufficient. On the day
of her discharge, in her capacity as a steward, she led him
on a tour of the laundry and presented evidence that there
was both insufficient manpower to perform the job and that
a hazard existed which could conceivably result in a citation
from the health or fire departments. Clearly, she presented
herself as a union official who would likely become a
‘‘whistleblower’’ if those shortcomings were not remedied.
Although Ewing said nothing to her at the time, his de-
meanor was that of someone who was annoyed.
The laundry tour was followed almost immediately by
Strawn’s notification to her that she was being discharged.
When Wells, assisted by two other stewards, pointed out that
the reason being given for the discharge was not supportable,
Strawn recognized the flaw immediately, backed away, and
allowed Wells to adjust her schedule to accommodate the
shift change. However, within half an hour, the decision to
discharge Wells was reinstated. Because no one else was
being fired that day, Taylor’s testimony that she overheard
Ewing telling Strawn that an individual was to be discharged
and that there were to be ‘‘no buts about it’’ clearly dem-
onstrates that in discharging Wells, Strawn was not acting on
her own, but on the direct orders of an unhappy corporate
president. The only cause which Wells had given him to be
unhappy was her pointing out the insufficient manpower and
condition of the laundry room and observing that it was a
hazard.
Ewing no doubt perceived her stewardship as a threat and
determined to discharge her. The excuse which he and
Strawn used, Wells’ alleged refusal to change her hours, is
not sustained by any evidence whatsoever. Accordingly, I
conclude that the reason which Strawn advanced and which
appears on the termination slip is a pretext. As a pretext, the
element of union animus is present and the General Counsel
has presented a strong prima facie case that Wells was dis-
charged because she was a union steward, a violation of Sec-
tion 8(a)(3) and (1). Furthermore, that prima facie case
stands unrebutted. Accordingly, I conclude that Wells was
discharged in violation of the Act as alleged in the com-
plaint.
D. The Failure to Arbitrate Wells’ Grievance
On September 5, 1991, Field Representative Martin filed
a grievance covering Wells’ discharge. It asserted that Wells
had been ‘‘unjustly terminated’’ and that various sections of
the collective-bargaining contract had been breached. He
sought reinstatement with backpay and no loss of seniority.
He hand delivered that document to Strawn.
Martin testified that he thereafter had about four conversa-
tions with Strawn over Wells’ discharge. Early on, she re-
ferred him to Prestige’s office in Texas. He eventually spoke
with an attorney named Bettye Springer. In the course of this
pursuit, he talked to Springer several times. He says Springer
agreed to arbitrate the matter. On September 16, 1991, Mar-
tin wrote Strawn a letter in which he confirmed the Union’s
understanding that the grievance over Wells’ discharge
would be submitted to arbitration by mutual agreement and
asked that Strawn have Springer contact his office so an arbi-
trator could be selected.
Because the contact was never made, no arbitrator was
ever chosen. Yet, on December 26, 1991, Springer wrote
Martin a letter transmitting a settlement proposal. This letter
was sent about 7 weeks after the facility had been taken over
by the Shieldses. By telephone, Martin rejected the proposal
(testifying that Springer’s letter was inaccurate with respect
to the backpay amounts which Wells was willing to con-
sider). Martin left the Union’s employment at the end of the
year and was therefore not involved in any further commu-
nications between the Union and the operators or former op-
erators of the facility. It is undisputed that no arbitration ever
occurred covering Wells’ discharge.
E. Other Bargaining Issues
On October 4, 1991, Martin sent Strawn a letter asking for
a ‘‘seniority list for each department under Local 250’s juris-
diction.’’ He also wanted the full name, hire date, and se-
niority date, as well as other information such as whether
they were full-time, regular part-time, on-call, per diem, short
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 According to Martin, the Shieldses own other health care facili-
ties in the area and the Union has a collective-bargaining relation-
ship with them. The conversation he had with Dr. Shields occurred
during an October meeting with Shields at a convalescent hospital
in El Cerrito. Martin says Shields told him, ‘‘Don’t tell anybody, but
I am going to take over Prestige. But we are bargaining with the
bank right now. We have a second mortgage that is on the Facility
and we have got to bargain with the bank, so I don’t know if it will
clear. But if it does, we will be operating it again.’’
6 The request for employee social security numbers, included in
the demand, bears no relevance to the collective-bargaining or rep-
resentation process and is therefore not producible. A-Plus Roofing,
295 NLRB 967, 971 (1989). Moreover, it raises issues of privacy
which no one has addressed. Accordingly, my finding a violation
here does not include the obligation to provide the social security
numbers of the employees in the bargaining unit.
hour, probationary, temporary, or occasional employees. He
asked that the material be sent to him by October 15. He tes-
tified that there were two reasons for sending the letter. First,
he said the Union wanted to ‘‘get current’’ on who was actu-
ally employed at the facility. Second, he said there were
some dues problems which an up-to-date roster could help
straighten out. In this respect he was referring to the asserted
problem of nonremittance of dues which has been discussed
in a previous section of this decision.
Martin says that after he sent the October 4 letter, he had
about seven conversations with Strawn regarding a roster.
Her oral response was that she did not have sufficient cleri-
cal staff to prepare one and therefore would not do it unless
she was specifically authorized. He never got a written reply.
On October 15, 1991, Martin sent Ewing a certified letter
to his office in Texas. The letter principally dealt with the
arrearage to the health insurance carrier but obliquely re-
ferred to his belief that dues were not being forwarded
promptly. He also asked for a copy of the sales contract be-
tween Prestige and Chartham saying that if Ewing’s com-
pany had assumed the debts and liabilities of Chartham, then
it might be liable for earlier health plan premiums. He con-
cluded asking for ‘‘a complete breakdown from your office
as to who has had dues deducted from their checks and also
who has had health and welfare contributions deducted from
their paychecks.’’ Martin says Ewing never responded. How-
ever, the health insurance issue was resolved as described
above.
On November 5, 1991, Martin wrote Ewing another letter
listing five items which he wished to discuss. The first was
‘‘Effects Bargaining—Over Sale of Facility.’’ In the first
paragraph, he asked for a meeting to bargain over the effects
of the sale of the facility, apparently to the Shieldses. The
letter is quite short and immediately refers to four other top-
ics, ‘‘dues refund,’’ ‘‘Kaiser health plan [refund],’’ Wells’
arbitration and some issues involving overtime pay, short
pay, and sick leave. These are not described with any par-
ticularity. Indeed, the reference to a dues refund and a Kaiser
refund are not discussed at all elsewhere in the record. Mar-
tin testified that he had written the letter, because he had
learned from Dr. Shields that he was going to be taking over
the facility. No one from any of the three Respondents ever
informed the Union that a transfer was in progress.5
Martin testified that in response to the November 5 letter,
Attorney Springer called him and he told her they had a lot
of outstanding issues which he would like to get resolved,
including the change of ownership. He said Springer told
him she knew only that her client was no longer going to
be operating the facility and she would have to get back to
Martin after she reached her client.
On November 26, Martin wrote Springer a letter request-
ing bargaining over the Wells matter as well as bargaining
over the effects of the ‘‘sale’’ of Prestige to the Shieldses.
In it he said that he was ‘‘again formally requesting a meet-
ing date’’ with her regarding effects bargaining. He advised
her that his schedule was open and asked her to inform him
regarding her availability to negotiate. Martin said that al-
though she did respond, as noted earlier regarding the Wells
arbitration, she never answered his question about bargaining
over effects. At one point, with respect to certain information
which he had sought, Springer told him that the records were
not available to Prestige because they were now in the hands
of the new operators, which Martin knew to be the Shieldses.
IV. ANALYSIS
A. Unilateral Changes
Although I have earlier recommended the dismissal of two
matters based on a factual analysis and found the discharge
of Wells to be unlawful based on both factual and legal anal-
yses, the following discussion relates to what are essentially
peripheral issues involving the obligation to bargain in good
faith. These are the requests to provide a seniority list, the
alleged obligation to arbitrate Wells’ discharge, and the ques-
tion of bargaining over the effects on the employees of the
transfer to the Shieldses. In addition, it is necessary to dis-
cuss which of the entities is liable for what type of violation.
With respect to the seniority list, the evidence shows that
Union Field Representative Martin demanded production of
such a list by his letter of October 4, 1991. In that letter he
asked not only for the names and hire dates of employees,
but their seniority dates if different, as well as the location
where the employee worked, his or her shift, and whether
they were full-time, part-time, or some other category of em-
ployee. The Board, of course, has held that a request for
such information is presumptively relevant to the collective-
bargaining process and an employer’s failure to provide that
material in a timely way will be regarded as a breach of the
collective-bargaining obligation. As the presumption has not
been rebutted, I have no difficulty in finding that Strawn’s
refusal, on the grounds that she had neither sufficient clerical
support nor would she do so without being authorized by
Ewing, to be a violation of Section 8(a)(5) and (1) of the
Act.6 Safelite Glass, 283 NLRB 929, 948 (1987); also NLRB
v. Acme Industrial Co., 385 U.S. 431 (1967).
With respect to the obligation to arbitrate Wells’ dis-
charge, the General Counsel asserts that it is an unlawful
unilateral change in the terms of the contract as breaching
Section 8(a)(5) and (1) of the Act.
In general terms, I agree with the General Counsel. In her
letter of December 26, 1991, Springer said that because her
client no longer operated the facility, ‘‘He [Ewing] would
not be able to reinstate Ms. Wells, if that were the ultimate
decision of an arbitrator. Thus, we feel that Prestige Care
Center’s responsibility for Ms. Wells terminated on Novem-
ber 1, 1991, the date when operation of the center was trans-
ferred to other individuals.’’ Clearly, Springer was wrong on
the law. It may be that the transfer would end the period for
1259RICHMOND CONVALESCENT HOSPITAL
7 This conclusion, of course, assumes that the collective-bargaining
agreement in evidence, nominally between the Union and Respond-
ent Richmond, actually bound Respondent Prestige. The issue is dis-
cussed more fully below.
8 Modified in pertinent part, then remanded 380 F.2d 933 (9th Cir.
1967); decision on remand 170 NLRB 389 (1968).
which Wells might have been entitled to backpay in the
event of a favorable decision by the arbitrator, but it cer-
tainly did not end Respondent(s)’ obligation to arbitrate an
incident arising during the term of a collective bargaining
contract. Specifically, see Nolde Bros. v. Bakery Workers
Local 358, 430 U.S. 243 (1977). Also Indiana & Michigan
Electric Co., 284 NLRB 53 (1987).
Even so, the General Counsel’s case is not clean. Section
20 of the collective-bargaining contract describes the griev-
ance procedure. It is a three-step process, the first being an
informal conference, the second an adjustment board, and the
third, arbitration. The evidence clearly shows that the step-
one informal conference followed rather quickly after Martin
filed the grievance. However, there is absolutely no evidence
that step two, resort to the adjustment board, was ever taken.
If Martin is correct, that Springer agreed to go straight to ar-
bitration, it may be determined one of two things occurred:
one, Springer waived the second step or two that a separate
agreement, apart from the contract procedures, had been
reached. I conclude that the first is the more likely.7
The complaint alleges that Respondent Prestige breached
the bargaining obligation by refusing and continuing to
refuse to submit the discharge of Wells to arbitration or to
respond to Martin’s arbitration request of September 5, 1991.
In reality, however, Respondent, through Springer, did agree
to arbitrate. As noted, she even forwarded a settlement pro-
posal to settle it short of arbitration. Respondent’s actual
misconduct was to fail to respond to the Union’s request to
assist in appointing an arbitrator. Of course, it may be argued
that its failure to do so and a refusal to submit Wells’ dis-
charge to binding arbitration has the same practical effect.
After all, in each situation the arbitration procedure is frus-
trated. Nonetheless, the evidence does not show that Re-
spondent rejected arbitration as a means of resolving contract
disputes at the facility. What it does show is that Respondent
failed to reply to Martin’s request to help choose an arbitra-
tor.
Such conduct is a violation of Section 8(a)(5) and (1) of
the Act and I so find. See Massilon Publishing Co., 212
NLRB 869, 873–874 (1974); Independent Stave Co. [I], 233
NLRB 1202 (1977); and Independent Stave Co. [II], 248
NLRB 219 (1980).
B. Effects Bargaining—The Transmarine Remedy
With respect to the allegation that Respondent(s) have
failed to give the Union an opportunity to bargain over the
effects of the ownership change, the evidence is clear. No
one from either Respondent Prestige or Respondent Rich-
mond ever advised the Union that the facility was being re-
claimed by the Shieldses in a foreclosure proceeding. The
only way the Union learned of it was by chance when Martin
happened to learn of it from Dr. Shields while visiting him
on other business. Martin immediately wrote a letter to
Ewing on November 5 about the matter. In the meantime,
apparently on November 1 (according to Springer’s Decem-
ber 26 letter), the facility was returned to the Shieldses.
Springer responded saying only that she would have to dis-
cuss the matter with her client. Martin followed up with an
another letter on November 26. Thereafter, Respondent
Prestige’s only response on the subject was silence.
That refusal clearly deprived the Union of any opportunity
to bargain over the circumstances of the employees whose
employment status might be altered by such a decision. Ob-
viously issues such as severance pay, seniority, pensions,
health insurance, job security, and other matters are of rel-
evance with respect to such a change. The Union has an ob-
ligation to protect bargaining unit members exposed to such
dangers. Both the Board and the courts have found that an
employer has a duty to notify its union of such a change and
to bargain with it on request regarding the effects of those
changes. See specifically Transmarine Navigation Corp., 152
NLRB 998 (1965);8 Interstate Tool Co., 177 NLRB 686
(1969); Summit Tooling Co., 195 NLRB 479 (1972); NLRB
v. Royal Plating & Polishing Co., 350 F.2d 191 (3d Cir.
1965); Willamette Tug & Barge, 300 NLRB 282 (1990).
That doctrine was specifically approved by the Supreme
Court in First National Maintenance Corp. v. NLRB, 452
U.S. 666, 681 (1981). Accordingly, I conclude that Respond-
ent(s) have failed to timely notify the Union of such a
change to give it the opportunity to request bargaining over
the effects of such a change.
The General Counsel seeks a limited backpay remedy as
established in the Transmarine remand case. The purpose of
such a remedy is to place, as best as can be done, the parties
in a status quo ante position. That allows the union the op-
portunity to bargain from strength rather than be faced with
a fait accompli and be forced to bargain from whatever
weakness results from the unfair labor practice. The remedy
has invariably been used in circumstances where the employ-
ees affected by an unlawful and significant change have lost
their jobs. This not only includes fact patterns where the em-
ployer has gone out of business, but also where employers
have eliminated shifts or made operational changes which re-
sulted in employee layoffs. See for example Fast Food Mer-
chandisers, 291 NLRB 897 (1988). However, it has not been
applied in cases where the affected employees have remained
employed. Here, Respondent(s) did not notify the Union that
the facility was being transferred to the Shieldses in Novem-
ber 1991. Apparently the employees came to work on or
about November 1, and found themselves employed by the
Shieldses, rather than by Respondent Prestige or Respondent
Richmond. Thus, there is no showing that any employee lost
his or her job as a result of the transfer.
There is no suggestion that employees have suffered any
out-of-pocket loss. Indeed, if a limited backpay remedy such
as that set forth in Transmarine were granted, it would be
totally offset by the interim earnings which the employees
have acquired from the Shieldses. Therefore, I do not find
that a limited backpay remedy under Transmarine to be ap-
propriate. Nonetheless, Respondent(s) were obligated to bar-
gain over the effects of the transfer on the unit employees.
Accordingly, a traditional bargaining order will be entered.
Even if this means the Union must bargain from a weak po-
sition, it is no weaker than it would have been had the
change been properly noticed and bargaining conducted in a
timely fashion. The employees would still have been hired
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Perma Vinyl Corp., 164 NLRB 968 (1967), enfd. sub nom. U.S.
Pipe & Foundry v. NLRB, 398 F.2d 544 (5th Cir. 1968); Golden
State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
10 The only evidence to that effect is that on a few occasions
Chartham’s former administrator, Dr. Jackson, was seen conferring
with Prestige’s administrator, Strawn. Bybee asserts that Jackson was
then playing only a small role as a ‘‘consultant’’ during and shortly
after the transition period. There is no evidence to counter that asser-
tion.
by the Shieldses in exactly the same manner as they actually
were. Thus, a Transmarine remedy would be a windfall for
employees and would place the Union in a better position
than it would have been had Respondent(s) acted lawfully.
It is therefore not appropriate here.
C. The Respective Liabilities of Respondent(s)
The General Counsel has asserted in his complaint and has
argued in his brief that the three Respondents here are inter-
connected in various ways. He asserts that Richmond Con-
valescent Hospital, Inc. and Chartham Management, Inc. are
a single employer; then he contends that in June they became
joint employers with Respondent Prestige Health Care of
California, Inc. Other apparent entities whose names appear
in this proceeding and who are somehow connected to the
matter, such as Prestige Care Center of Richmond and the
Shieldses, are not named as parties to the proceeding. Pres-
tige Care Center of Richmond is the ‘‘entity’’ which appears
on the paychecks after June 1. It may be that Prestige of
Richmond is simply Respondent Prestige Health Care of
California albeit inartfully placed on the checks. If in fact it
is a separate entity, its role is undefined on this record. The
omission of the Shieldses is somewhat curious as it is con-
ceivable that they could be liable as a successor employer
under the Perma Vinyl/Golden State Bottling doctrine.9
I think it is clear that during the entire time period Rich-
mond Convalescent Hospital, Inc. was present, even though
in the background. On two occasions, first with Chartham
and then with Prestige, it signed management agreements in
which it specifically reserved to itself the status of employer
of the employees in question. It apparently did not wish to
supervise the employees directly, but only indirectly through
a hired manager. Thus, under those agreements, Richmond
simply assigned its own supervisory functions to a manage-
ment company.
There is no explanation for that particular practice in the
record and I can only assume there must be some sort of bal-
ance sheet advantage to do so. Certainly it is an unusual
method of managing a business and/or a complement of em-
ployees. This oddity did have the effect of terribly confusing
both the employees and the Union with respect to who the
true employer was. For example, even though Union Official
Herrera knew she had signed a collective-bargaining contract
with Richmond, her colleague Martin never quite understood
it. He believed the contract was between the Union and
Chartham. In fact, the dues ledger card shows the Union at
one point regarded Chartham as the employer. So did union
steward Wells. Yet, both Chartham and Prestige were simply
buffers between Richmond, the true employer, and the em-
ployees.
I observe, however, that Chartham was relieved of its
managerial duties in June 1991 when it was replaced by
Prestige. It may well be true that Richmond and Chartham
should be regarded as a single employer prior to that date.
Nonetheless, there is no suggestion that Chartham continued
to have any sort of managerial role thereafter.10 None of the
unfair labor practices was committed until after Respondent
Prestige began its supervision of the facility.
As Bybee said, Chartham has other businesses elsewhere,
including Oregon, Idaho, and California. Thus, although it
may have been a single employer with Respondent Rich-
mond during its tenure at the facility, once it departed and
had no one involved in its operation thereafter, it cannot be
held liable for the acts of its replacement. Accordingly, I
conclude that because Respondent Chartham was removed
from the scene by the time the unfair labor practices were
committed, it is not responsible to remedy them. I shall rec-
ommend that Chartham be dismissed from the case.
The same cannot be said for Respondent Richmond. Its
contract with Prestige clearly shows that it remained the di-
rect employer of the employees in question. This can easily
be distinguished from the ‘‘leased employee’’ fact pattern
whereby an employer hires employees indirectly through a
leasing company. That practice is commonly seen in the
transportation industry and occasionally in the health care
field. See for example TLI/Crown Zellerbach Corp., 271
NLRB 798 (1984) (drivers), and Lee Hospital, 300 NLRB
947 (1990) (anesthesiology department). Something similar
has been seen in the janitorial service industry. See for ex-
ample Southern California Gas Co., 302 NLRB 456 (1991).
In those cases the principal employer had leased discrete por-
tions of the business, usually by department. Despite the
lease arrangement, the legal conclusion in each case turned
on the facts. In cases where the putative joint employers
‘‘shared and codetermined the essential terms and conditions
of employment’’ of the leased employees, a joint employer
relationship was found. Where the test was not met, the
proof failed. The test is specifically mandated now by the
Board’s adoption of the Third Circuit’s holding in Browning-
Ferris Industries of Pennsylvania v. NLRB, 691 F.2d 1117
(1982). That court’s test was specifically adopted by the
Board in TLI/Crown Zellerbach, supra, and I am bound to
apply it here. Moreover, the essential terms and conditions
referred to therein are defined in Laerco Transportation, 269
NLRB 324, 325 (1984). They are: hiring, firing, disciplining,
supervising, and fixing the rates of remuneration.
Unlike those cases, Respondent Richmond didn’t lease em-
ployees, it ‘‘leased’’ its supervisors. It hired the direct serv-
ices of a supervisory staff (albeit through a separate legal en-
tity), specifically retaining its own authority over the employ-
ees, even though it only rarely, if ever, directly exercised it.
Owner Richmond acted instead through its hired manager,
who did not formulate, but only carried out, the policies es-
tablished by Richmond. Thus, the manager did not set
wages: Richmond did by signing the collective-bargaining
agreement with the Union. Similarly, Richmond only dele-
gated the hiring and firing and disciplining processes to the
manager’s administrator in exactly the same way it would
have had it directly employed its own administrator.
In that circumstance, I have no difficulty in finding the
General Counsel’s proof of a joint employer relationship to
be insufficient. Instead, I find the actual employer to be Re-
spondent Richmond. By the same token I find Respondent
1261RICHMOND CONVALESCENT HOSPITAL
11 Enfd. and remanded on unrelated issue 308 F.2d 548 (9th Cir.
1962).
12 During the hearing, the General Counsel advised that he in-
tended to move to amend the complaint to alternatively plead that
Respondent Prestige was an agent of Respondent Richmond. That
motion is found in his brief. To the extent that it is necessary, the
motion is granted. However, whether granted or not, under the
Board’s holding in American Stores, supra, the exact theory of joint
and several liability need not be articulated. It is sufficient that those
respondents are charged together as was done here.
13 Cf. NLRB v. New Madrid Mfg. Co., 215 F.2d 908 (8th Cir.
1954).
14 Recognizing that neither respondent currently has control of the
facility, it may be appropriate to join the Shieldses, if necessary,
under the Perma Vinyl/Golden State doctrine, to effect this remedy.
Prestige to be Richmond’s agent. Thus, Respondent Rich-
mond is liable, under the respondeat superior doctrine, for
the acts committed by its agent, Prestige. This finding obvi-
ates the allegation that Prestige unlawfully failed to supply
the Union with a copy of the June sales agreement between
Chartham and Prestige. There was no June sale, because the
only employer was Respondent Richmond. It simply sub-
stituted managers. Therefore no agreement could have been
supplied.
Of course, at common law, if an agent committed a tort,
even though he was acting in his principal’s interest, he was
nonetheless held separately liable for his own activity. See
for example, Restatement (Second) of Agency, § 343. There,
the writers of the Restatement stated the general rule:
An agent who does an act otherwise a tort is not re-
lieved from liability by the fact that he acted at the
command of the principal or on account of the principal
. . . .
Similarly Section 348 A, dealing with trespass to land makes
the identical point:
An agent who enters the land of another is not relieved
from liability for trespass by the fact that he acted on
account of the principal and reasonably believed that
the principal had possession or the right to possession
of the land, or the right to authorize the agent to enter.
The Board, although acting under a specific statute rather
than the common law, has nonetheless reached similar con-
clusions, particularly where the purported agent is named as
a respondent. In its early case on the subject, Bon Hennings
Logging Co., 132 NLRB 97 (1961),11 the Board found the
named individual not to be liable for backpay, excusing him
only because he was totally under the control of the prin-
cipal. In that case, Knowles was the supervisor and the pro-
prietor of the trucking operation which hauled logs for the
primary respondent. Among other things, Knowles commit-
ted some 8(a)(1) activity and discharged certain truckdrivers
unlawfully. The Board held Knowles was personally respon-
sible to remedy the 8(a)(1) activity, but not for the backpay
due the employees. The Board said, ‘‘[I]n the circumstances
of this case, we do not believe that it will effectuate the poli-
cies of the Act to make Knowles personally responsible for
the payment of backpay, as he was at all times in the employ
and under the control of the Respondent employer. As there
has been no bona fide lease or transfer of assets to Knowles,
assets available for payment of backpay will be unaffected
by the absence of responsibility by Knowles.’’ Id. at 98. Al-
though Knowles partially escaped, the concept of direct li-
ability of the agent was not rejected.
Subsequently, in Ogle Protection Service, 149 NLRB 545,
546 fn. 1 (1964), the Board held James Ogle, alter ego of
the corporation, personally responsible to remedy the unfair
labor practices which had been committed, including back-
pay. Id. at 546 fn. 1. The principal concern in Ogle was
whether or not the proper procedures had been followed to
join the individual to the action against the corporation. The
Board had no difficulty in citing Bon Hennings Logging,
supra, as authority for holding the individual personally lia-
ble. Then, in Carpet City Mechanical Co., 244 NLRB 1031,
1034 (1979), the Board made clear that it would hold prop-
erly joined agents liable to remedy fully the unfair labor
practices in which they participated, including backpay.
Similarly, in the instant case we have both Richmond Con-
valescent Hospital, Inc. and Prestige Health Care of Califor-
nia, Inc. properly named and served as Respondents. Thus,
there is no issue of proper joinder. Moreover, even though
the complaint’s initial theory was that they were joint em-
ployers, finding that they are jointly and severally liable on
a somewhat different theory is not offensive to any notion
of due process. See the case cited by the General Counsel,
American Stores Packing Co., 277 NLRB 1656 (1986).12
Accordingly, based on Carpet City Mechanical and its
predecessors, I find Respondent Richmond and Respondent
Prestige to be jointly and severally liable to remedy the un-
fair labor practices found here.13
THE REMEDY
Having found Respondent Richmond and Respondent
Prestige to be jointly and severally liable for the violations
of Section 8(a)(5), (3), and (1) of the Act as found here, I
shall recommend that they be ordered to cease and desist
therefrom and to take certain affirmative action to effectuate
the policies of the Act. The affirmative action will include
an order requiring them to bargain collectively in good faith
by immediately complying with the Union’s demand for a
seniority list and connected relevant information and, on re-
quest, to bargain in good faith with respect to the effects of
the transfer of the facility to the Shieldses. They shall further
be ordered to immediately offer Maria Wells reinstatement to
her former job and to make her whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
the date of her discharge to the date of a proper offer of rein-
statement14 or, if reinstatement is not possible, to the date on
which Wells finds permanent and substantially equivalent
employment elsewhere, less interim earnings. Backpay shall
be calculated as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950); interest shall be calculated as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, Respondents shall also be required to expunge
from their records any reference to their discharge of Wells
directing them not to use the discharge against her in any
way. See Sterling Sugars, 261 NLRB 472 (1982).
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. (a) Respondent Richmond Convalescent Hospital, Inc. is
an employer within the meaning of Section 2(2), (6), and (7)
of the Act.
(b) Respondent Chartham Management, Inc. is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
(c) Respondent Prestige Health Care of California, Inc. is
an employer within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent Chartham Management, Inc., at the time of
the incidents covered by the complaint, was not an employer
of any employees at the facility.
3. (a) Respondent Richmond Convalescent Hospital, Inc.,
at the time of the incidents described by the complaint, was
the direct employer of the employees employed at the facil-
ity.
(b) Respondent Prestige Health Care of California Inc., at
the time of the incidents described by the complaint, was Re-
spondent Richmond’s agent performing supervisory and man-
agerial duties on behalf of and for the account of Respondent
Richmond.
4. On or shortly after October 4, 1991, by refusing and/or
declining to supply the Union, on a proper request, with a
seniority list, together with related information, Respondents
Richmond and Prestige violated Section 8(a)(5) and (1) of
the Act.
5. In November 1991, and thereafter, by refusing to bar-
gain with the Union over the effects of the transfer of owner-
ship of the nursing home to the Shieldses, Respondents Rich-
mond and Prestige violated Section 8(a)(5) and (1) of the
Act.
6. By discharging Maria Wells on September 4, 1991, be-
cause of her status as a union steward and because of her
activities in accord with that status, Respondents Richmond
and Prestige violated Section 8(a)(3) and (1) of the Act.
7. By refusing to assist the Union to select an arbitrator
to resolve the grievance filed on behalf of Wells, Respond-
ents Richmond and Prestige violated Section 8(a)(5) and (1)
of the Act.
8. Except as described above, the General Counsel has not
proven that Respondents have engaged in any other unfair
labor practices.
9. Taken as a whole, the foregoing violations of the Act
are insufficient to conclude that Respondents have either re-
pudiated the collective-bargaining contract or withdrawn rec-
ognition of the Union as the exclusive collective-bargaining
representative of the employees in the appropriate bargaining
unit.
[Recommended Order omitted from publication.]