University Heights Hospital

National Labor Relations Board - Board Decisions

Nov 15, 1978

239 N.L.R.B. 290 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bel Air Chateau Hospital, Inc., d/b/a University
Heights Hospital and Sundae Webb. Case 31-CA-
5917
November 15, 1978
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY, AND TRUESDALE
On September 15, 1978, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed limited exceptions and a memorandum in sup-
port thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and memo-
randum and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as mod-
ified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Bel
Air Chateau Hospital, Inc., d/b/a University
Heights Hospital, Los Angeles, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
Substitute the following for paragraph 2(d) of the
Administrative Law Judge's recommended Order:
"(d) Mail a signed copy of the notice attached to
the Board's Order to each of the employees who were
employed by it prior to its ceasing operations."
I In par. 2(d) of his recommended Order, the Administrative L aw Judge
recommended that Respondent send letters to its employees notifying them
of the Order and what steps the Hospital has taken to comply therewith. In
agreement with the General Counsel's contention. we shall require Respon-
dent to mail the attached notice to its employees in lieu of the proposed
letter.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things
except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
WE WIt L NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT threaten employees with closure
of the Hospital in the event they file claims with
the California Department of Industrial Rela-
tions against the Hospital for overdue, unpaid
wages for services rendered.
WE WILL NOT discharge employees for filing
such claims.
WE WILL NOt in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
WE WILL make Sharon Canter, Jean Lawson,
Elizabeth Okoye, and Sundae Webb whole for
any wage and benefit losses they may have suf-
fered as a result of their unlawful discharges,
with interest.
WE WILL place Sharon Canter, Jean Lawson,
Elizabeth Okoye, and Sundae Webb on a prefer-
ential hiring list for employment and, in the
event we resume operations, give first preference
to them in recall to their former jobs.
BEI AIR CHATEAU HOSPITAL. INC.. d/b/a
UNIVERSITY HEIGHTS HOSPITAL
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN. Administrative Law Judge: On
February 13, 1976,' Bel Air Chateau Hospital, Inc., d/b/a
i Read 1976 after all furlher date references omitting the sear
290
UNIVERSITY HEIGHTS HOSPITAL
University Heights Hospital 2 (the Hospital) filed a petition
with the United States District Court for the Central District
of California for protection under chapter Xl of the Bankrupt-
cy Act (USDC Bankruptcy Case No. BK 76 02012 JB). On
February 17, Sundae Webb filed an unfair labor practice
charge against the Hospital in Region 31 of the National
Labor Relations Board. On March 3, Bankruptcy Judge John
Bergener appointed Sam Jonas of Los Angeles as Receiver
to administer the Hospital's affairs. On April 26, the Region
issued a complaint against the Hospital and Jonas as joint
Respondents, based upon Webb's February 13 charge. After
several extensions, on October 27, the Respondents filed an
answer to the complaint. In August 1977, the Hospital ceased
doing business. In September 1977, the court declared the
Hospital bankrupt and appointed Jonas as Trustee in Bank-
ruptcy to wind up its affairs. On a date not appearing of
Record but prior to April 1978, the court enjoined the Board
from proceeding against Jonas as a party respondent. On
April 11, 1978, the Region amended the complaint to delete
Jonas as a party respondent.
The complaint alleged the Hospital violated Section
8(aX)(I) of the National Labor Relations Act, as amended
(hereafter called the Act), by a February 12 statement its
alleged agent, Doctor Harry Levine, addressed to Webb
and other employees that the Hospital would have to close
its operations if they filed claims for unpaid back wages
with the California Department of Industrial Relations and
by discharging Webb and other employees on February 13
because they filed such claims. In its answer to the com-
plaint, the Hospital admitted Donald Dorr was its adminis-
trator, Jesse Sanchez was its assistant administrator, and
the two were supervisors and agents of the Hospital acting
on its behalf at times pertinent; admitted the commerce
facts; admitted Levine made the statements to Webb and
other employees on February 12 set out in the complaint;
admitted it discharged employees Sharon Canter, Jean
Lawson, Elizabeth Okoye, and Sundae Webb on February
13 and failed and refused to reinstate them thereafter; but
denied Levine was a supervisor and agent of the Hospital
acting on its behalf when he made the February 12 state-
ment, denied the Hospital discharged Canter, Lawson, Ok-
oye, and Webb because they filed wage claims with the
State,3 and denied commiting any violation of the Act.
The issues before me for determination are:
1. Whether Levine was a supervisor and agent of the
Hospital acting on its behalf when he made the February
12 statement to employees alleged in the complaint and
admitted in the answer.
2. Whether Canter, Lawson, Okoye, and Webb were dis-
charged by the Hospital on February 13 because they filed
claims with the State.
3. If so, whether by such actions the Hospital violated
the Act.
4. In the event violations occurred, what remedy is ap-
propriate.
2 Hereafter called the Hospital or the Respondent.
3 The Hospital stated as affirmative defenses alleged reasons for discharg-
ing the four employees other than the reason alleged in the complaint: since
the Hospital neither appeared nor offered any evidence in support of its
allegations. the affirmative defenses shall be. and are, dismissed.
Counsel for the General Counsel and the Charging Party
appeared at the hearing and were afforded full opportunity
to adduce evidence, examine witnesses, argue, and file
briefs. The General Counsel argued orally at the hearing.
Based upon my review of the entire record,4 observation
of the witnesses, examination of the argument, and re-
search, I enter the following:
FINDINGS OF FACT
I JURISDICTION
The complaint alleged, the answer admitted, and I find
that at times pertinent the Hospital was a California corpo-
ration engaged in the operation of an acute care facility at
Los Angeles, California; that it annually purchased and
received goods or services valued in excess of $2,000 from
points outside of California and derived gross revenues in
excess of $250,000; and that, on the basis of the foregoing,
it was an employer engaged in commerce in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7), and (14) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts 5
At times material the Hospital was staffed on a 24-hour
basis. The four alleged discriminatees were employed on
the day shift in the nursing department. Canter was a regis-
tered nurse, Lawson and Okoye were nursing assistants,
and Webb was a ward clerk. Canter was hired by the Hos-
pital in November 1975; Lawson was hired in May 1966:
Okoye and Webb were hired in August 1975; and all four
were discharged on February 13.
The Hospital followed the practice of paying its employ-
ees twice a month: on the 20th of each month, they were
paid for work performed between the Ist and the 15th, and
on the 5th of each month, they were paid for work per-
formed between the 16th and 31st.
In late 1975, the employees began to experience difficul-
ty in securing their pay and in receiving it in timely fash-
ion; on several occasions, paychecks were returned to em-
ployees by their banks because of insufficient funds on
deposit at the bank they were drawn on; the Hospital was
late in issuing paychecks; etc.
On January 5, the four alleged discriminatees were not
paid their wages earned between December 16 and 31,
1975. The four met, discussed the matter, and decided to
complain to management. They went to the Hospital's
business offices and contacted the administrator (then Mr.
Umpstead), the assistant administrator (Sanchez) and the
director of nurses (Claire Alyea). Canter spoke on behalf of
the four. She complained over their failure to receive pay
for their work between December 16 and 31 and stated the
four were thinking of filing a claim for the unpaid wages
with the State if they were not paid. Umpstead replied that
due to the holidays Medicare and Medicaid payments due
4Certain errors in the transcript herein have been noted and corrected
The findings herein are based upon the mutually corroboratory testi-
mon) of Canter. Lawson. Okoye, and Webb
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Hospital had been delayed but should be received with-
in a few weeks, so he would appreciate it if the employees
would be patient. The four employees decided to withhold
filing wage claims with the State for awhile. On January 12,
they received their paychecks for the December 16-31 pay
period.
On January 20, the four again failed to receive their pay-
checks for the January 1-15 pay period. They approached
Sanchez, and Canter stated that they had bills to pay and
could not afford to work without being paid for their labor.
that collecting a small unemployment compensation check
was better than no check at all, and that the four were
going to the State to see what their rights were. Sanchez
suggested Canter discuss the matter with Elliott Leonard,
the Hospital's attorney, and called Leonard and put Canter
on the telephone. Canter repeated her comments, adding
that the four would not go to the State if the Hospital
would pay 50 percent of the amount due then and the bal-
ance in a few days. Leonard replied that if the employees
failed to continue working they would be considered quits
and could not collect unemployment benefits. Canter re-
plied the four were not quitting, they just were withholding
their services unless and until they were assured they would
be paid for their services.
Following that conversation Canter contacted the Un-
employment Service and was informed that employees who
withhold their services because they have not been paid are
eligible for unemployemnt benefits. She called Leonard
back and so informed him.
Levine subsequently contacted Canter by telephone.
Canter repeated the employees' position to him. Levine
asked what he could do to resolve the situation. Canter
stated the employees would remain on the job if they re-
ceived on-half of their pay now and the balance within a
few days. Levine stated he would get back to Canter. Can-
ter closed the conversation with the statement that the four
would not be in to work the next day if they did not receive
the requested pay.
That evening Alyea called Canter at her home and stat-
ed that the Hospital would have one-half the amount due
the employees the next day and that the balance would be
paid a few days later. Canter called the other three and
informed them of Alyea's message. They all agreed to re-
port for work the next day.
On January 21, they received one-half the pay due to
them for the January 1-15 pay period. On January 22, they
received the balance of their pay for that pay period.
On February 5, Sanchez contacted Canter and asked her
if the girls would continue to work if the Hospital paid
them one-half the pay due them for the January 16-31 pay
period, with the balance to be paid later. Canter conferred
with the other three and they agreed to continue working,
to accept the payment offered, and to file claims with the
California Department of Industrial Relations for the bal-
ance due if not received promptly. Canter so advised San-
chez and asked Sanchez to arrange for the four to talk to
Dorr, who had succeeded Umpstead as administrator. The
meeting with Dorr was arranged. On seeing Dorr, Canter
asked how long it would be before the second half of their
pay for the January 16-31 pay period would be paid. Dorr
replied it would be paid in a few days.
On February 6, the Hospital issued checks to the four for
one-half the pay due them for the January 16-31 pay pe-
nod.
On February II, the four still had not received the bal-
ance of their pay for the January 16-31 pay period. Canter
contacted Sanchez and stated that the four were not going
to work the next day if they were not paid the balance due
them for work in the previous pay period and that the four
were going to file claims for their unpaid wages with the
State Industrial Relations Department. Sanchez promised
to pay the balance due if they would come to work the next
day. The four discussed the matter and decided to come to
work and file pay claims with the State if not paid.
The four worked the next day and were not paid the
balance due. They filed wage claims with the State. They
also contacted Levine, Sanchez, and Alyea. Canter stated
the four needed their pay for the previous pay period and if
they did not receive it they were going to withhold their
services until and unless it was paid. In the course of that
conference, Levine made the statement alleged in the com-
plaint and admitted in the answer, i.e., that the Hospital
would be forced to close its operation if the employees
pressed their wage claims through the state agency. Canter
informed Levine the claims had been filed.
The following day, on reporting for work, the four were
handed checks for the balance due them for the January
16-31 pay period and layoff notices. Canter asked Dorr for
the pay due for their work between February I and 13.
Dorr stated there was no money to pay it.
On February 20, Okoye and Lawson went to the Hospi-
tal and requested pay for the days they worked between
February I and 13. Sanchez informed them the Hospital
was not going to pay them because they filed claims with
the State. They noted replacements had been hired and
were performing their jobs.
The employees were informed while employed at the
Hospital that Levine was a part owner of the Hospital and
its vice president. They observed him function as staff phy-
sician, and from time to time he directed them in the per-
formance of their work at the Hospital.
B. Analysis and Conclusion
The threshold question is whether an employee engages
in concerted activities protected under the Act when he
seeks help from a state agency to collect overdue wages for
services previously performed.
The Board, with court approval, has held it is.6 As the
Board stated in the B & M case at (I 1154),
Respondent discharged the Charging Parties because
they filed claims with the State Labor Commission for
certain overtime wages.... [T]his action by the
Charging Parties . . . constituted . . . concerted activ-
ities in which Respondent's employees were engaged.
Thus the record demonstrates, and we find, that: A
group of Respondent's employees, among them the
B & MU [dcaiazing. In. .155 NLRB 1152 (1965). enfd. 368 F.2d 624 (91h
('Or 1966); (Gate. Air (ondiruning. Inc., 199 NLRB 1101 (1972): Brookl)n
Al'urrng HIomel. In . d h al Scasaquin (Convalescent C(enier. 223 NLRB 267
( 1976)
292
UNIVERSITY HEIGHTS HOSPITAL
Charging Parties, believed they had the right which
the Charging Parties were asserting to receive over
time pay. .... [Aj number of them consulted with one
another concerning the filing of claims for these wag-
es; they discussed the procedure to be followed; and
as a result several of them, including the Charging
Parties, eventually filed individual claims with the
knowledge of the others. Moreover, even if the Charg-
ing Parties had independently filed the instant claims,
without such prior consultation, such individual filing
must itself be considered a protected activity, since the
individual action so taken . . . is but an extension of
the concerted activity....
As the employees had a right guaranteed by Section
7 of the Act to engage in concerted activities for mutu-
al aid and protection, it is clear, and we find, that the
Respondent's discharge of the Charging Parties for
doing so not only interfered with their exercise of that
right but also had the inherent effect of coercing and
restraining its exercise by their fellow employees.
In this case Canter, Lawson, Okoye, and Webb met to
discuss their mutual concern over the late payment of their
wages and over whether, and when, they would be paid for
their services; they decided on a procedure to follow-re-
quest for payment, followed by the filing of wage claims if
payment was not promptly received; they followed that
procedure, warning management of their intentions if not
paid in accordance with the understanding (within a few
days after the first half-payment); and they carried out
their mutual agreement by filing claims for their back wag-
es with the State when management failed to perform on its
promise. This was concerted activity, and it was under-
taken by the four for purposes of mutual aid and protec-
tion in an area of vital concern to any employee-timely
receipt of wage payment for previously rendered services.
The next question is whether the four were discharged
because they exercised their right to engage in that protect-
ed concerted activity. The efforts of management to avert
the filing of the wage claims, the hostility expressed by
management on learning the), had been filed, the timing of
the discharges, and the immediate replacement of the dis-
chargees with new employees all support a conclusion that
this indeed was the reason for the discharge, and I there-
fore so find and conclude.
I further find and conclude that by so discharging the
four the Hospital violated Section 8(a)( ) of the Act.
Findings have been entered above that Levine. at perti-
nent times, was identified to the employees as part owner
and vice president of the Hospital; that he functioned as a
staff physician at the Hospital: and that he directed the
Hospital's employees in the performance of their duties.
On the basis of these findings, I conclude that, at the time
(February 12) he stated to Canter, Lawson. Okoye. and
Webb that the Hospital would be forced to close its opera-
tion if they filed wage claims against it with the State, he
was a supervisor and agent of the Hospital acting on its
behalf.
The next question is whether such statement was viola-
7See cases cited in fn 6
tive of the Act. I find it was; the statement carries an im-
plied threat to close the Hospital and thereby terminate the
employment of the employees to whom it was uttered if
they engaged in concerted activity protected under the
Act-filing claims with a state agency against the Hospital
in an attempt to collect overdue and unpaid wages. Such
an implied threat interferes with, restrains, and coerces em-
ployees in the exercise of their rights under Section 7 of the
Act. I therefore find and conclude that by such implied
threat the Hospital committed an additional violation of
Section 8(a)( ) of the Act.
CONCLUSIONS OF LAW
1. At times pertinent, the Hospital was an employer en-
gaged in commerce in a business affecting commerce with-
in the meaning of Section 2(2), (6), (7), and (14) of the Act.
2. At times pertinent, Levine, Umpstead, Dorr, Sanchez,
and Alyea were supervisors and agents of the Hospital act-
ing on its behalf within the meaning of Section 2(2), (I 11),
and (13) of the Act.
3. The Hospital violated Section 8(a)(1) of the Act by
Levine's February 12 statement to employees that the Hos-
pital would be forced to close its operations if they filed
claims against the Hospital with the California Department
of Industrial Relations for overdue, unpaid wages.
4. The Hospital violated Section 8(a)(l) of the Act by
discharging Canter, Lawson, Okoye, and Webb for filing
the claims alluded to in the previous paragraph.
5. The aforesaid unfair labor practices affected com-
merce as defined in the Act.
1liF RFMFDY
The Board normally requires that discriminatees be rein-
stated and made whole for their wage and benefl' losses,
that the Respondent cease and desist from committing the
unfair labor practices found to have occurred and refrain
from committing those or similar unfair labor practices,
and that the Respondent post notices to its employees to
that effect.
Such a remedy is obviously inappropriate here, inas-
much as the Hospital has ceased its operations and a Trus-
tee in Bankruptcy is winding up its affairs.
I therefore shall recommend the Board issue an Order
directing the Hospital to make Canter, Lawson, Okoye,
and Webb whole for any wage and benefit losses they may
have suffered over the period extending from the date they
were discharged to the date the Hospital ceased operations,
with the losses and interest thereon computed in the man-
ner prescribed in F 4I'. Woolworth Company, 90 NLRB
289 (1950). and Florida Steel Corporation, 231 NLRB 651
( 1977):# to establish a preferential hiring list containing the
names of Canter, Lawson. Okoye, and Webb in their re-
spective job categories and give first preference to those
employees in the event it resumes operations; and to send
letters to its employees notifying them of the Board's Order
and its compliance therewith.
On the basis of the foregoing findings of fact, conclu-
Sec. 2cnerall.. hi, Pl/i,,lhim ol, nd H.alrlml ( , I I8 N RB 716 (1962)
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I therefore shall recommend the issuance
of the following:
ORDER 9
The Respondent, Bel Air Chateau Hospital, Inc., d/b/a
University Heights Hospital, Los Angeles, California, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with closure of the Hospital
in the event they file claims with the California Depart-
ment of Industrial Relations against the Hospital for over-
due, unpaid wages for services rendered.
(b) Discharging employees for filing such claims.
(c) Otherwise interfering with, restraining, or coercing
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following action designed to effectuate the
purposes of the Act:
(a) Make Sharon Canter, Jean Lawson, Elizabeth Ok-
oye, and Sundae Webb whole for any wage and benefit
losses they may have suffered as a result of their unlawful
discharges in the manner provided in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
National Labor Relations Board agents, for examination
and copying, all records necessary to determine the
amount of the payments due under this Order.
(c) Establish a preferential recall list containing the
names of Sharon Canter, Jean Lawson, Elizabeth Okoye,
and Sundae Webb and, in the event the Hospital resumes
operations, give first preference to those employees in re-
call to their respective job categories.
(d) Send letters to employees notifying them of this Or-
der and the Hospital's compliance therewith.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
the Hospital has taken to comply herewith.
294