New London Convalescent Home

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 893 (N.L.R.B. 1986)

NEW LONDON CONVALESCENT HOME 893
Eastern Connecticut Health Services , Inc. d/b/a
New London Convalescent Home and New Eng-
land Health Care Employees Union , District
1199, National Union of Hospital and Health
Care Employees, AFL-CIO." Case 39-CA-
2265
30 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 June 1986 Administrative Law Judge
Julius Cohn issued the attached supplemental deci-
sion . The Respondent filed exceptions and a sup-
porting brief, the General Counsel filed a cross-ex-
ception, and both the General Counsel and the
Charging Party filed answering briefs .274 NLRB
1442 (1985), to reflect the correct name of the
Charging Party.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions2 and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Eastern
Connecticut Health Services , Inc. d/b/a New
London Convalescent Home , Waterford, Connecti-
cut, its officers , agents, successors, and assigns,
shall take the action set forth in the Order, except
that the attached notice is substituted for that of
the administrative law judge.
' We amend the caption herein and in New London Convalescent Home,
$ We find it unnecessary to rely on the judge's conclusion that mem-
bers' approval of the direct affiliation necessarily constituted implied ap-
proval of the prior disaffiliation.
In accord with the General Counsel's cross-exception , we shall sub-
stitute a notice deleting an inadvertent typographical error.
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with New Eng-
land Health Care Employees Union , District 1199,
National Union of Hospital and Health Care Em-
ployees, AFL-CIO as the exclusive representative
of the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All service and maintenance employees, in-
cluding nurses ' aides, dietary employees,
housekeeping employees , laundry employees,
and maintenance employees ; excluding all reg-
istered nurses , all other professional employees
and technical employees including , but not
limited to, licensed practical nurses , recreation
directors , and beauticians, office clerical em-
ployees, and guards and supervisors as defined
in the Act.
EASTERN CONNECTICUT HEALTH
SERVICES, INC., D/B/A NEW LONDON
CONVALESCENT HOME
Thomas W. Meiklejohn, Esq., for the General Counsel.
Michael Miller, Esq. (Kunkel & Miller), of St. Petersburg,
Florida, for the Respondent.
Miriam L. Gafney, Esq. (Freedman & Lorry, P.C.), of
Philadelphia, Pennsylvania , for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JULIUS COHN , Administrative Law Judge. On 29
March 1985 the Board issued a Decision and Order in
New London Convalescent Home, 274 NLRB 1442 ( 1985).
This was based on consideration by the Board of a
Motion for Summary Judgment made by the General
Counsel, requesting that an order be entered directing
Eastern Connecticut Health Services , Inc., d/b/a New
London Convalescent Home (Respondent) to bargain
with New England Health Care Employees Union, Dis-
trict 1199 , RWDSU, AFL-CIO (NEHCEU). The Board
found , with the exception of one contention , that Re-
spondent had failed to raise any other issue "properly lit-
igable in this unfair labor practice proceeding." The
Board did find , however , that Respondent had raised a
material issue with respect to "the Union 's disaffiliation
from the Retail , Wholesale and Department Store Union
and its affiliation with the National Union of Hospital
and Health Care Employees ." The Board concluded that
a hearing should be held limited to the issue of whether
the Union's reaffiliation after the certification comported
with the due-process standard set forth in Amoco Produc-
281 NLRB No. 120
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion Co., 262 NLRB 1240 (1982). For this purpose the
Board remanded the proceeding for hearing before an
administrative law judge. By designation of the associate
chief administrative law judge, I conducted such hearing
on 16 December 1985 and 22 January 1986 at Hartford,
Connecticut. I
All parties were given full opportunity to submit evi-
dence relevant to the Board's Order and remand. Fol-
lowing the close of hearing, the General Counsel, Charg-
ing Party, and Respondent submitted briefs. These, to-
gether with supplemental briefs filed by all parties, have
been carefully considered.
On the entire record2 of the remanded hearing and
from my observation of the witnesses, I make the follow-
ing3
1. ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS
A. The Voting Issue
The stated purpose of the remanded hearing is to take
evidence on the issue arising from an allegation that em-
ployees were not afforded the opportunity of voting on a
change in affiliation of NEHCEU. The fact of this issue
is resolved, at this point, in a simple stipulation of the
parties that "no member of the NUHHCE or non-mem-
bers represented by the NUHHCE were given an oppor-
tunity to vote on whether NUHHCE should disaffiliate
from the RWDSU."4 However a brief statement of back-
ground facts, all stipulated or uncontradicted, will bring
the issue into clearer focus.
At the time of the representation election conducted
among Respondent's employees in 1983, there were 11
geographic districts, of which NEHCEU was one, all af-
filiated with the National. The National was established
in 1973, and its constitution provided that it "be deemed
for all purposes a single indivisible entity of the Retail,
Wholesale & Department Store Union (RWDSU), AFL-
CIO." Further, it stated that the National shall issue cer-
tificates of affiliation to its Districts, and that relation-
ships by Districts with the RWDSU shall be through the
National. On 1 September 1979 NEHCEU received its
"Certificate of Affiliation" as a District from the Nation-
al.
Problems concerning the relationship between
RWDSU and National began in 1982 when RWDSU
amended its constitution to provide that an affiliate could
not secede or disaffiliate without approval of the
RWDSU executive board. This was a right, which had
1 In accordance with the understanding of the parties and their agree-
ment, the hearing dealt with the issue of the effect of the disaffiliation of
the National Union of Hospital and Health Care Employees from the
Retail , Wholesale and Department Store Union (RWDSU), AFL-CIO,
and its simultaneous direct affiliation with AFL-CIO.
2 Following the close of hearing, Respondent made a motion to cor-
rect transcript. As this motion refers to typographical and other minor
errors, and there being no opposition, the motion is granted.
s At the hearing, the parties stipulated to the introduction and receipt
of the transcript and exhibits (other than the formal papers) of another
proceeding dealing with the same issue . That case is Canterbury Villa of
Waterford, Inc., Case 39-CA-t797. A supplemental decision by me is
being issued simultaneously with the instant case
4 National Union of Hospital and Health Care Employees, herein des-
ignated as NUHHCE or National, is the "National Union" with which
NEHCEU is affiliated
been previously guaranteed by RWDSU to its affiliates.
Other events occurred, including an attempt by RWDSU
to impose a trusteeship on the National, all of which led
to litigation.
In February 1984, a request by the National for a sepa-
rate charter from AFL-CIO was rejected. However on 3
May 1984 a settlement agreement, approved by the U.S.
district court, was executed by RWDSU, the National,
and the New York District 1199. As a result, RWDSU
and the National jointly requested AFL-CIO to offer an
independent charter to the National, which was granted
by the AFL-CIO executive council on 7 May 1984.
Thereafter on 6 June 1984, the executive board of
NUHHCE voted to disaffiliate from RWDSU, effective
1 October. Neither members nor nonmembers represent-
ed by NUHHCE voted on this issue of disaffiliation. The
executive board also voted to advise AFL-CIO of its in-
tention to accept an independent charter from AFL-CIO
effective 1 October. These decisions were implemented
in writing by President Henry Nicholas of the National.
It should be noted, at this point, that New York District
1199, a party to the court settlement, was not included in
these decisions because it had determined to remain as a
division or affiliate of RWDSU, and disaffiliate from the
National.
Pursuant to a notice to all its Districts and areas, dated
13 July 1984, and a mailing on 31 July 1984, the National
conducted a referendum by mail ballot in which mem-
bers voted to approve or disapprove amendments to the
constitution of the National and direct affiliation with
AFL-CIO. Ballots were mailed to all members in good
standing as of 30 April 1984. A substantial number of Re-
spondent's employees in the unit found appropriate
herein were not in that category and, therefore, did not
have an opportunity to vote in this referendum.
The AFL-CIO chartered NUHHCE (National) as of 1
October 1984. The National, now an AFL-CIO affiliate,
issued a new certificate of affiliation to District 1199 NE,
New England Health Care Employees Union.
While these events involving disaffiliation by the Na-
tional from RWDSU and direct affiliation with AFL-
CIO were occurring, the voting issue had to be consid-
ered in the light of the Board's decision in Amoco Pro-
duction Co., 262 NLRB 1240 (1982), affd. sub nom. Oil
Workers Local 4-14 v. NLRB, 721 F.2d 150 (5th Cir.
1983) (Amoco IV). In that case, the Board held that an
employer was not required to bargain with an independ-
ent union whose members voted to affiliate with Oil
Chemical and Atomic Workers International Union,
AFL-CIO. The reason therefor was that nonmembers of
the independent were not permitted to vote. Respondent
herein relied on Amoco IV and cases following it, as did
the Board in remanding this case for hearing.
However, subsequent to the close of this remanded
hearing, the Supreme Court had occasion to rule on this
voting issue . In NLRB v. Financial Institution Employees,
475 U.S. 192 (1986), (Sea-First), the Court reversed
Amoco IV and its progeny, holding "that the Board ex-
ceeded its authority under the Act in requiring that non-
union employees be allowed to vote for affiliation before
it would order the employer to bargain with the affili-
NEW LONDON CONVALESCENT HOME 895
ated union." The Court relied on statutory policy that
matters of affiliation/disaffiliation are internal union af-
fairs with which the Board is precluded from interfering.
Accordingly , Respondent 's principal contention here,
that it be relieved of its duty to bargain because of non-
members not voting , is effectively denied by Sea-First.
However, the Court did say that in a situation where the
changes wrought by affiliation are such that a question
of representation is raised , the Board may conduct a rep-
resentation election.
B. The Organization and Structure Issue
The General Counsel urges dismissal of Respondent's
defense on the narrow ground that the Board 's remand is
literally confined to the voting issue . However, the hear-
ing on the remand was conducted pre-Sea-First when
Amoco IV was still viable . As it is stipulated that a "sub-
stantial" number of the unit employees, members or non-
members, did not vote , the General Counsel was forced
to litigate on the basis that , in the circumstances, voting
was not even required . Thus, the hearing was basically
one involving the structure and organization of Charging
Party Union and the National . In order that the Board
may take full advantage of this record , I believe it should
be discussed.
Prior to Amoco IV, the Board normally applied two
tests to an affiliation situation. First , there had to be due
process safeguards . See Newspapers, Inc., 210 NLRB 8, 9
(1974). However, in considering standards for application
of due process, attention must now be directed to the
Sea-First finding regarding unauthorized intrusion in in-
ternal union affairs . In this instance , the disaffiliation of
the National from RWDSU was approved by duly elect-
ed officers of the National and delegates from the Dis-
tricts, who also incorporated the required changes by
amendment of the constitution of the National . Perhaps
unique in this case , the disaffiliation was one of the re-
sults of litigation between the National on one side and
both the RWDSU and New York District 1199 on the
other . As noted , the litigation was concluded by a settle-
ment agreement providing for the disaffiliation, among
other things, and that agreement was approved by a
United States district court, thereby providing judicial
guidance for the process. Finally, on notice to all Dis-
tricts and members, a referendum by mail ballot was
conducted in which the members approved the direct af-
filiation to AFL-CIO. I would conclude that members
would thereby be impliedly voting approval of the disaf-
filiation . Respondent contends, on the basis of record tes-
timony , that since 2000 ballots were returned by the post
office because the addressee was unknown due process
was not obtained. The record further shows that more
than 60,000 ballots were mailed, and the National made
additional efforts to locate the 2000 members who, no
doubt, failed to notify their union of changes in address.
In any case, a substantial number of ballots were count-
ed. I find in all these circumstances that due process was
observed under pre-Amoco IV standards , and certainly
would comply with Sea-First.
The second test applied by the Board , as stated by the
Court in Sea-First, was one of "substantial `continuity'
between the pre- and post -affiliation union . The focus of
this inquiry was whether the affiliation had substantially
changed the union : The Board considered such factors as
whether union retained local autonomy and local offi-
cers, and continued to follow established procedures."
Applying this test, it is clear that there was more than
"substantial continuity" between the pre- and post- disaf-
filiation union . The certified union in the instant case is
the local , NEHCEU. For all practical purposes, the
entity remained intact after the National disaffiliated
from RWDSU and affiliated directly with AFL-CIO.
Jerome P . Brown , president of NEHCEU, testified with-
out contradiction that he has been president of the New
England District since 1979 , and continues in that posi-
tion . All other officers and staff of the District remained
in the same capacities . There was no change in the
manner in which officers were elected . As was the case
prior to the disaffiliation , representatives of New Eng-
land still serve on the executive board of the National.
The geographical jurisdiction of the New England Dis-
trict is unchanged . In addition , procedures for organizing
employees are the same, as are the methods for negotia-
tion of collective-bargaining agreements and their admin-
istration by the Districts . Moreover , the RWDSU was
never involved in any of these activities . Thus as far as
the NEHCEU, the certified union, is concerned , the dis-
affiliation was a cosmetic change . Indeed , it appears that
the original affiliation to RWDSU simply afforded the
National and its Districts indirect access to AFL-CIO,
which they now have obtained directly.
Respondent contends that there has been a "disruption
of existing intraunion relationships" as a result of the dis-
affiliation from RWDSU. It relies on the fact that New
York District 1199 remained affiliated with RWDSU,
and in effect , seceded from the National . It points to the
testimony of President Brown of the National that the
departure of the New York District resulted in a consid-
erable loss of income because approximately half of the
National's overall membership was lost . However, to
conclude that this inevitably leads to "financial instabil-
ity" is speculation . The settlement agreement provided
for proportionate distribution of funds between New
York District 1199 and the National-the latter's pension
fund , independently administered, remains intact . Clearly
the loss of perhaps half of its dues-income would cause
the National to run a leaner administration operation.
But bigger is not always better . There is no affirmative
evidence that the smaller National was in any trouble.
More importantly , the New England District 1199 re-
mained intact and virtually unaffected.
In support of its allegations of disruption and change,
Respondent called Doris Turner as a witness. Turner had
been president of New York District 1199 since 1982 and
secretary of the National from its inception until she dis-
affiliated from the National in 1984 . Basically , she con-
firmed the split of her New York District 1199 from the
National and the consequent loss of membership and
money to the National . Turner quite candidly testified
that there was very little, if any , actual assistance ren-
dered by RWDSU to the National or its Districts. Thus
RWDSU did not pay any of the salaries of the officers of
the National , nor was she aware of any loans made by
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RWDSU to the National . She stated that RWDSU did
not assist National or the Districts in bargaining. The
only positive assistance her District received from
RWDSU was during a strike in 1984 but it appears that
this was no different from calling a sister labor union or
the Central Trades and Labor Council.
The record fails to reveal any impact on NEHCEU,
the Charging Party, which is the certified representative
of Respondent 's employees . In sum , I find that a "sub-
stantial continuity " does in fact exist . Nor has a question
concerning representation been raised . The Supreme
Court in Sea-First has indicated that otherwise an affili-
ation vote is a purely internal union affair . See NLRB v.
Insulfab Plastics, 789 F.2d 961 (1st. Cir. 1986).
Accordingly, on the basis of my findings above with
respect to the issues raised by the Board 's Order remand-
ing this proceeding , and particularly in view of the inter-
vening Decision of the Supreme Court in Sea-First, I find
that Respondent has not sustained its defense with regard
to the validity of the National 's disaffiliation from
RWDSU . As the Board has already found no merit to
the Respondent 's other answers and defenses to the
Motion for Summary Judgment , I find that Respondent
has violated Section 8(a)(1) and (5) of the Act by refus-
ing to bargain with NEHCEU.
The General Counsel and Charging Party moved at
the remanded hearing that the caption of this proceeding
and the Board 's Order in 274 NLRB 1442 be amended to
reflect the correct name of the Charging Party. I recom-
mend granting of this motion so that the name of Union
as it appears in the caption and the Board 's Order be
changed to "New England Health Care Employees
Union, District 1199 National Union of Hospital and
Health Care Employees, AFL-CIO."
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, I recommend that it be
ordered to cease and desist, to bargain on request with
the Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period pro-
vided by law, the initial period of the certification shall
begin on the date the Respondent begins to bargain in
good faith with the Union. Mar-Jac Poultry Co., 136
NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U .S. 817 (1964); Burnett Construction Co., 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
S If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
ORDER
The Respondent , Eastern Connecticut Health Services,
Inc. d/b/a New London Convalescent Home , Water-
ford, Connecticut, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with England Health Care Em-
ployees Union, District 1199 , National Union of Hospital
and Health Care Employees , AFL-CIO as the exclusive
bargaining representative of the employees in the bar-
gaining unit.
(b) 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, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement:
All service and maintenance employees employed
by the Employer including nurses' aides, dietary
employees , housekeeping employees , laundry em-
ployees, and maintenance employees ; excluding all
registered nurses, all other professional employees
and technical employees including, but not limited
to, licensed practical nurses , recreation directors,
and beauticians , office clerical employees, and
guards and supervisors as defined in the Act.
(b) Post at its facility in Waterford, Connecticut,
copies of the attached notice marked "Appendix."e
Copies of the notice, on forms provided by the Officer in
Charge for Subregion 39, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Officer in Charge in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses
9 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 Nation-
al 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."