Cadiz Convalescent CenterDownload PDFNational Labor Relations Board - Board DecisionsSep 30, 1981258 N.L.R.B. 539 (N.L.R.B. 1981) Copy Citation CADIZ CONVALESCENT CENTER Cadiz Convalescent Center and United Steelworkers of America, AFL-CIO-CLC. Cases 8-CA- 13392, 8-CA-13497-2, and 8-CA-13979 September 30, 1981 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 15, 1981, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief opposing the General Counsel's excep- tions. 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 briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the remainder of the complaint which was not settled between the parties be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: United Steelworkers of America, AFL-CIO-CLC, herein called the Union or the Charging Party, filed the charge in Case 8-CA-13392 on November 27, 1979,1 the charge in Case 8-CA-13497-2 on February 4, 1980, and the charge in Case 8-CA-13979 on June 30, 1980, against Cadiz Convalescent Center, Inc., herein called Respondent or the Company, alleging that Respondent committed viola- tions of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. The complaint in Case 8-CA-13392 which was issued by the Regional Director for Region 8 on May 18, 1980, al- leges that the Union represented the majority of the em- ployees in an appropriate unit and that a fair election could not be held because of the many serious alleged 8(aXl) activities of Martha Peshek, Respondent's owner and administrator, and the discharge of four employees on October 10. The complaint noted that three of those individuals were rehired the following day. 'Unless otherwise specified, the events herein took place during the fall and winter of 1979-80. On July 21, 1980, the Regional Director issued an order consolidating cases, amended consolidated com- plaint, and notice of consolidated hearing, adding Case 8-CA-13497-2, and alleging that Timothy Beach was discharged on January 25, 1980, because of his union and concerted activities and because he had violated Re- spondent's illegal no-solicitation rule. This complaint added an allegation that Respondent had promulgated and maintained no-solicitation and no-access rules on Oc- tober 17 for the purpose of interfering with its employ- ees' union activities, and charged that Respondent violat- ed Section 8(a)(5) of the Act by not negotiating and bar- gaining with the Union about the promulgation and effect of such rules. A second order consolidating cases and complaint and notice of consolidated hearing, adding Case 8-CA-13979, was issued by the Regional Director on July 23, 1980. The third case added an allegation of 8(a)(1) threats by Martha Peshek in May 1980. Respondent's answer, as amended and amplified at the hearing in this matter, admits the service and commerce allegations, the status of the Union and the status of var- ious supervisors, denies that Dr. Freeman was an agent of Respondent, and denies that it had violated the Act, while admitting the discharge of certain individuals. After opening the hearing, the General Counsel, Re- spondent, and the Union entered into a settlement agree- ment disposing of most of the issues in this case and pro- viding for recognition of the Union, backpay, and waiver of reinstatement for one alleged 8(a)(3) discriminatee, and backpay for the three others who were reinstated the following day. The settlement agreement, which has a nonadmission clause, also remedies all alleged 8(a)(l) violations with the exceptions of the promulgation of the alleged illegal no-solicitation and no-access rules and the discharge of Timothy Beach. During the hearing of the matter, the General Counsel withdrew paragraph 10(j) of the complaint which alleges that the promulgation and maintenance of the alleged illegal no-solicitation and no- access rules violated Section 8(a)(5) of the Act. Thus the questions remaining to be decided are wheth- er the no-solicitation and no-access rules promulgated by Respondent on October 17 were promulgated to inhibit the employees' union activities and therefore violated Section 8(a)(1) of the Act and whether Timothy Beach was discharged in violation of Section 8(a)(l) and (3) of the Act. Based on the evidence in this case, I find that Respondent did not violate either Section 8(a)(1) of the Act by the promulgation of those rules or that it violated Section 8(a)(l) and (3) of the Act by its discharge of Timothy Beach. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in Cadiz, Ohio, on November 18 and 19, 1980. Respondent and the General Counsel submitted briefs which have been carefully considered. Upon the entire record in this case, including the ex- hibits and testimony, and upon my evaluation of the reli- ability of the witnesses based on the evidence and their demeanor, I make the following: 258 NLRB No. 77 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Respondent is an Ohio corporation located in Cadiz, Ohio, where it is engaged in the operation of a nursing home. Respondent was a sole proprietorship engaged in such business until it was incorporated and, as a sole pro- prietorship and later as a corporation, it annually re- ceived gross revenues in excess of $100,000 from such operation and annually received goods and services di- rectly from points outside of Ohio which were valued in excess of $15,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Facts The settlement agreement in this matter provided that the parties could introduce as evidence in the balance of the case the matters which were encompassed by the set- tlement agreement. The General Counsel introduced ex- tensive evidence which showed that Respondent en- gaged in rather flagrant violations of Section 8(a)(l) and (3) of the Act during the first few days of the Union's organizational drive which began on October 10. After that initial period, Respondent secured legal counsel. Respondent's employees are on three shifts: 7 a.m. to 3 p.m., 3 to 11 p.m., and 11 p.m. to 7 a.m. Martha Peshek is on duty during the daytime, usually until around 5 p.m., as is her director of nursing. For the balance of the second shift and during the third shift, usually a regis- tered nurse or an LPN is in charge of particular areas. In addition to RNs and LPNs, Respondent also employs aides and orderlies who wait on patients, see that they are kept clean and dry, and assist with their feeding. Medications are usually handled by RNs. B. The October 17 Rules The General Counsel does not attack the rules which were promulgated on October 17 as being facially un- lawful or illegal, but rather claims that the promulgation of these rules on that date following the beginning of the union organization was meant to interfere with such or- ganization and, in essence, claims that no such rules ex- isted prior to that time or were known by any employee to have existed. Respondent demonstrated that, in its policy manual predating the union organizational drive, it had a no-so- licitation rule and a no-access rule which provided for solicitation or access only with the permission of the ad- ministrator. This policy manual was kept at the nurses' desks for perusal by any employee. Respondent claimed that in the past such rules had been posted on its bulletin board but through the years had been removed. It is clear that the no-solicitation rule and the no-access rule in such discretionary form would have been facially un- lawful if continued in existenece or if enforced by Re- spondent. The General Counsel claims that the manual had not been distributed or shown to the employees and there was some question as to whether employees had bothered to read the manual. The General Counsel maintained that the Employer had permitted various solicitations in the past and that Peshek herself had sold Amway products to patients at the Home. There was also evidence that an Avon lady left a catalogue at the nurses desk and would come in during the evening hours after Peshek and other front office supervisors had left the establishment and would take orders. There was no evidence to determine wheth- er such orders were taken on employees' breaks or not, or that either Peshek or the director of nursing or anyone other than RNs, LPNs, and other employees knew of the presence of the Avon lady on Respondent's premises. Here, the vice of the no-solicitation and no-access rules, which were in existence at the time the Union started its organizational campaign, was that they were discretionary solely by Peshek as to whether solicitation or access would be allowed. As shown by the testimony concerning October 10, she did not allow any solicitation that day for the Union and her activities would appear to be violative of the Act. Respondent claims that in these circumstances it has been given a Hobson's Choice by the General Counsel, either to let a facially discriminatory rule remain in exist- ence and be attacked for maintaining an illegal rule or to promulgate a new facially nondiscriminatory rule and be attacked for promulgating it. The fact is that the prior rule was in existence and in essence was being enforced by Peshek on October 10 when she forbade solicitation on the premises that day. The fact that the witnesses produced by the General Counsel did not bother to read or pay attention to the sections in the manual which contained the no-solicita- tion and no-access rules is no denial that they existed. Certainly if the prior rule had remained in effect, any union solicitation would have been more inhibited than by the new rule. I find that the replacement of a facially unlawful rule by a presumptively lawful rule, even though promulgated at the time of the Union's organiza- tional campaign, cannot be found to violate the Act and accordingly determine that allegation of the complaint must be dismissed. C. The Discharge of Timothy Beach Preliminarily, Beach was not an impressive witness since he demonstrated a poor memory, particularly during cross-examination, and while on direct examina- tion was not exerting himself to search his memory for answers to questions propounded to him. Martha Peshek had some difficulty remembering events during part of her testimony but, as she explained, she had recently been released from the hospital where she was undergo- ing intensive nuclear medicine therapy. Where there are contradictions between Peshek and Timothy Beach, I would credit Peshek. 560 CADIZ CONVALESCENT CENTER Beach was hired in March 1979 as an orderly on the 11 p.m. to 7 a.m. shift and was shown his duties by other orderlies, aides, and a supervisor. Later in his employ- ment he moved to the 3 to 11 p.m. shift. Peshek stated that Beach was a poor employee, that his attendance record was bad, and that he received a number of warnings. Respondent's exhibits show that for the period of less than 1 year Beach was absent at least 82 days. On September 10, 1979, Nancy Herron, one of the al- leged 8(a)(3)'s in this case, wrote up Beach concerning the poor quality of his work and advised him he would be given a reasonable length of time to improve or he would be replaced. On December 4, 1979, the annual evaluation for Beach was prepared by a person who was a union suporter and resulted in a very low rating with no single category being rated above average. Peshek testified that the rating was as low as it could possibly be and still retain the employee. Beach admitted that Peshek discussed the December evaluation with him and told him that if he did not improve she would have to let him go. Beach testified that on one occasion he visited the Home while on leave and that he had a union button on. Later in his testimony he admitted the button was hidden by his jacket. There is no clear testimony, and certainly none from Beach, that anyone at Respondent knew of his support for the Union until late in his employment when his solicitation for the Union became known to Respond- ent. On Sunday, December 30, Beach went to work at his station and in a short time returned to the nursing station and, using some foul language, told Barger, who was in charge, that he was unhappy with the mess the men had been left in and walked out. Beach said there might have been patients in the lobby next to the nursing station at the time he used the foul language and acknowledged that he was written up for leaving the Home. After a short period, he called and apologized and came back to work. Barger wrote a memorandum of the incident which was given to Peshek or 2 days later and noted that Beach was very upset, used vulgar language, and was rude to her and to Administrator Morgan. Barger and Morgan checked the patients and found that there was no "mess" and felt Beach's behavior was unwarranted. It noted that after using an obscenity Beach left but called back a half hour later, apologized, said he wanted to come back to work because he did not want to lose his job, and explained that his wife had left him and taken their baby, and he felt she was abusing the child. Thereafter, on January 1, Beach overdosed on some nerve medicine and was hospitalized and absent from work from January 1 through January 9. He testified that he had a conversation with Supervi- sor Sandy Beck but did not recall what he said. Asked if he told her that had he been sent back to the men's sec- tion he would not be responsible, he denied it. He said that Beck knew he had abused his prescription pills. Peshek testified that, if she had been at the Home at the time of the incident, Beach would have been dis- charged, but Beach thereafter was absent for almost 10 days. Peshek did not say why she did not terminate Beach rather than take him back at that time, and we can only surmise she took all his personal troubles into con- sideration and allowed him to continue his employment. A week or so later, another employee told her Beach was soliciting for the Union while at work. She did not specify whether the reported occurrence was on work- time or breaktime but said that since there had been no complaints about Beach's actions she did not enforce the no-solicitation rule at that time. A day or so before Beach's discharge, an employee named Muse and another employee named Fletcher told Peshek that they had been solicited by Beach while on company time. She said Muse told her Beach talked to him about the Union and offered to send the union repre- sentative to his house, and he told Beach not to do so or he would kick him. Fletcher told her Beach tried to get him to sign a union card but, if he would not, Beach would send someone to Fletcher's house to talk to him about the Union. After receiving these complaints she called Beach to the office and told him he had been warned many times in the past and had not been written up on occasions when he should have been. Despite that, he had received two written warnings and had been warned that he could be fired if he did not improve. Now he had violat- ed the rule concerning solicitation and she was terminat- ing him. She said she might have given him the names of the two employees who complained about him. She testified that she considered Beach's poor work record, his absentee record, the prior writeups, including the December 30 confrontation between Beach and Barger, and these solicitations which violated the rule and decided that he should be discharged. Thereafter, when Beach filed for unemployment com- pensation, she contested the claim and gave as the rea- sons for his termination that it was due to his neglect of patient care, insubordination, failure to follow company policy, and using foul language. Beach testified that on January 29 Jody Muse was called to Martha Peshek's office and returned a few min- utes later and he then was called to the office. Peshek asked if he knew what he had done, and he said he did not. She said she had two witnesses who said he had asked them to sign union cards, and he denied doing so. She held up two timecards and said she could produce the two witnesses who would say he had done so. He said she would not have to call them, that he had not asked them to sign cards. He testified that Peshek said he was terminated for violating the rule and that his work had not been up to standards. Beach said that on January 24 he had talked to an or- derly named Gordon Fletcher and asked if he had heard they were trying to get a union and Gordon said he had not. He asked what Gordon felt about having a union, and Gordon replied they should get one. He told Gordon he would speak to him later and denied offering him a card to sign. Beach said Muse was not around at the time and he had no conversation with Muse about a union. 561 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARID Beach denied saying anything to any person about sending a union representative to their home. Asked what solicitation meant, Beach stated it was his under- standing from his uncle that he could talk about the Union and there was nothing Peshek could do about it, as long as he did not ask anyone to sign a union card and there was no interference with the employees' work. He gave a second definition, that solicitation meant only asking someone to sign a union card and denied that he had done so. Beach did not deny that his conversation with Fletch- er on January 24 was on company time and not on breaktime, but said it amounted only to a conversation and not to a solicitation. I credit Peshek's testimony that she had specific com- plaints from Muse and Fletcher that while they were on duty Beach asked them to sign union cards. As noted previously, I do not credit Beach where there is a con- troversy, since his memory was so poor on a number of items. In the circumstances of this case, it is clear that Peshek had been involved heavily in antiunion activities during the initial part of the Union's campaign in October, and it is also clear that in January she knew Beach was in- volved in union solicitation and that his soliciting activi- ties were one of the reasons for his discharge. Consider- ing just these facts, a prima facie case of discrimination can be established. We must then consider Respondent's defense wherein it states Beach would have been dis- charged in any event. Here, it is clear that Beach was an unreliable employee with a bad work record for absen- teeism and a poor attitude towards Respondent and ques- tions as to his stability as demonstrated by his actions and statements. Beach had been warned to improve and had been told before the December 30 incident that his job was in jeopardy. Respondent apparently took pity on him on that occasion because of his many personal prob- lems, but again Beach violated Respondent's rules. I be- lieve he did solicit both Muse and Fletcher. Under the circumstances here, where I have found that the no-solicitation rule was not improperly promul- gated and was valid, and since I find that Beach violated that rule and that Respondent had sufficient cause to dis- charge Beach, I further find that the Act was not violat- ed by his termination. I conclude and find that the complaint allegations of 8(a)(l) and (3) violations, which were litigated in this matter, have not been proven and will therefore dismiss the remainder of the complaint. Upon the foregoing findings of fact and the entire record and pursuant to Section 10(c) of the Act, I hereby issues the following recommended: ORDER 2 The remainder of the complaint which was not settled between the parties is hereby dismissed. h i the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions. and recommended Order herein, shall, as provided in Sec. 102.48 of he 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 562 Copy with citationCopy as parenthetical citation