Westmoreland Convalescent Hospital

National Labor Relations Board - Board Decisions

Jan 13, 1975

216 N.L.R.B. 123 (N.L.R.B. 1975)

WESTMORELAND CONVALESCENT HOSPITAL 123
Luceal Fitzpatrick d/b/a Westmoreland Convalescent
Hospital and Hospital & Institutional Workers
Union , Local 250, AFL-CIO. Cases 20-CA-9121
and 20-.RC-11754
DECISION AND REPORT ON POSTELECTION
OBJECTIONS
STATEMENT OF THE CASE
January 13, 1975
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On September 11, 1974, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in opposition to Charging Party's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,I 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint in its entirety be,
and it hereby is, dismissed.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for Hospital & Institutional
Wbrkers Union , Local 250, AFL-CIO, and that said
labor organization is not the exclusive representative
of all the employees, in the unit herein involved,
within the meaning of Section 9 (a) of the National
Labor Relations Act, as amended.
I The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard bry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was tried before me in San Jose,
California, on August 6, 1974. The charge in Case
20-CA-9121 was filed April 18, 1974, and amended May
31, by Hospital and Institutional Workers Union, Local
250, AFL-CIO (herein called the Union). The complaint
issued May 31, alleging that Luceal Fitzpatrick d/b/a
Westmoreland Convalescent Hospital (herein called Res-
pondent) has violated Section 8(a)(l) of the National
Labor Relations Act.
An election in Case 20-RC-11754 was held among
Respondent's employees April 19, 1974. It derived from a
petition filed by the Union November 21, 1973, and a
Stipulation For Certification Upon Consent Election
approved by the Regional Director for Region 20 on
March 19, 1974. The tally was five votes for union
representation and 20 against, with one challenged ballot.
The Union, on April 24, filed objections to the conduct of
the election.
The Regional Director, on June 4, issued his report
recommending that certain of the objections be overruled,
and concluding that other of the objections raised
"substantial and material issues of fact . . ., which issues
can best be resolved through a hearing." The Regional
Director noted in the same document that the unresolved
objection issues "are substantially similar" to that raised by
the above complaint, so ordered that the two cases be
"consolidated for purposes of a hearing before a duly
designated Administrative Law Judge." The Board adopt-
ed the Regional Director's report by order dated July 5.
Posttrial briefs were filed for the General Counsel,
Respondent, and the Union.
1. ISSUES
The issue in Case 20-CA-9121, as stated by the
complaint, is whether "on an unknown date in April 1974,
Respondent, by [Owner Luceal] Fitzpatrick, threatened
employees that no wage increases would be given if the
Union was selected as the collective bargaining representa-
tive."
The issue in Case 20-RC-11754 is whether conduct by
Respondent during the pendency of the election interfered
with free voter choice, requiring that the election be set
aside.
II. JURISDICTION
Respondent is a proprietorship owned by Luceal
Fitzpatrick , engaged in the operation of a convalescent
home in Saratoga , California . Its annual revenues exceed
$100,000, over $ 10,000 of which comes from the United
States Government through the Medicare program.
The complaint alleges, the answer admits , and it is found
that Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
216 NLRB No. 19
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within Section 2(5) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Evidence
At issue is the conduct of owner Fitzpatrick during an
employee meeting. The meeting was held in the dining
room of the hospital on April 10, 1974, and was attended
by 15 to 20 employees and supervisory personnel . The first
part of the meeting dealt with nursing techniques. That
concluded, Mrs. Fitzpatrick announced the date, time, and
place of the coming election in Case 20-RC-11754, and a
general discussion of unions and election procedures
ensued.
The General Counsel rests its entire case on the
testimony of Dawn Owens, one of those present at the
meeting . Owens was a nurses aid for Respondent until she
quit in anger 5 days after the meeting.' According to
Owens, Fitzpatrick shook her finger at the employees and
"stated that, if a union came in, by no means would we get
a raise in pay-not whatsoever." That alleged comment,
the General Counsel argues, comprises the violation.
Owens further testified that Fitzpatrick said that: (a)
"[I If the Union was voted in to the hospital, the workers
could be called off of their jobs to picket other hospitals,
without receiving compensation for our wages" ; (b) "[I If
we missed union meetings , we would be fined tremendous
amounts of money"; and (c) "[S ]he had gone through the
phone book and called convalescent hospitals in the area;
and that only three or four of them had the Union... .
[T]hat must mean that the Union was not very well
organized; or that the people who worked at these
hospitals did not want the Union in the hospitals."
Eight others testified concerning the meeting, none
corroborating Owens in any vital respect. Fitzpatrick
expressly denied saying there would be no raises should a
union get in, testifying that she did say: "As you know, if
the Union comes, we have to negotiate; and whatever we
negotiate, that will be your wage." Dan Soelberg, a
licensed practical nurse who works for Respondent on
occasion, corroborated Fitzpatrick in substance:
She said-I don't remember the exact words; but the
idea was that, just because the Umon gets in, it doesn't
absolutely mean that you are going to get a wage
increase. She said, "I am still the employer, and the
Union still has to negotiate any wage increases with
me; and I have to agree to any negotiations with the
Union."
None of the other witnesses testified to Fitzpatrick's saying
anything one way or the other about wages.
Fitzpatrick also denied the utterances attributed to her
by Owens about picketing, fines, and calling other
hospitals. Concerning these matters, Kitchen Supervisor
Madelyn Withers credibly testified that she raised the
possibility of fines for nonattendance at union meetings,
based on her experience with a union in the East;
Administrator Elizabeth Barker credibly testified that she
mentioned calling other hospitals about their experiences
with unions; and Dan Soelberg credibly testified that he
suggested the employees look up the numbers of other
hospitals in the telephone book and make their own
inquiries about the benefit levels at those with unions. No
one "owned up" to the picketing reference of which Owens
testified.
All of the witnesses impressed me as sincerely trying to
relate their best recollections.
B. Conclusion
Had Fitzpatrick threatened that raises would be withheld
should the Union be voted in, as Owens testified and the
General Counsel contends, it is inconceivable that this
vivid assertion would not have registered sufficiently with
anyone else to enable corroboration. Yet, corroboration
there is none . This is not to say that Owens lied. The more
likely explanation is that she misconstrued Fitzpatrick's
perfectly proper comment- that raises would be a matter
of negotiation , not automatic, with a union-as a blanket
threat to withhold raises . There are other indications, too,
that Owens was not listening carefully at the meeting, such
as her attribution to Fitzpatrick of sundry comments made
by others.
Owens, in short, is not credited that Fitzpatrick made the
assertion in question. The complaint therefore is without
merit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within Section
2(5) of the Act.
3. Respondent has not violated the Act as alleged in the
complaint.
OBJECTIONS
The Union's objections contained eight enumerated
allegations . The Board's order of July 5 adopted the
Regional Director's recommendation that Objection 1, 2, 4,
and 8 be overruled, leaving the remainder to be resolved by
hearing.
Objection 3 alleges that Respondent "made promises of
benefits" to induce an antiunion vote; Objection 5, that it
"made material misrepresentations of fact concerning the
Union's policies, programs , and costs of membership";
Objection 6, that it "threatened to close the facility and
take other retaliatory measures if the Union won the
election"; and Objection 7, that it "interfered with,
restrained , and/or coerced its employees in the exercise of
their rights guaranteed by Section 7 of the Act."
The breadth of these allegations notwithstanding, the
Union sees the objections in much narrower focus. As its
brief states:
1 Owens' quitting had nothing to do with the Union question, instead
stemming from an argument over staffing and dental care for patients.
WESTMORELAND CONVALESCENT HOSPITAL 125
The only issue which is presented is whether Luceal
Fitzpatrick threatened the employees . . . at a staff
meeting prior to the . . . election . . . . If Luceal
Fitzpatrick threatened the employees that if the union
were to win the election, they would receive no pay
raise, the objection to the election must be sustained
and a new election ordered.
The only evidence supportive of this position being
Owens' discredited testimony, previously discussed, it
follows that the objections must fail.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby issue the following
recommended:
ORDER2
The complaint in Case 20-CA-9121 is dismissed.
The objections in Case 20-RC-1 1754 are overruled in
their entirety . It accordingly is further recommended that a
certification of election result issue.
2 AJI outstanding motions inconsistent with this recommended Order
hereby are denied 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