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National Labor Relations Board v. Colonial Haven Nursing Home Inc.

decided: September 15, 1976.


On Application for Enforcement of an Order of The National Labor Relations Board

Pell and Sprecher, Circuit Judges, and Jameson, Senior District Judge.*fn*

Author: Pell

Pell, Circuit Judge.

The National Labor Relations Board (Board) seeks enforcement of its order issued June 30, 1975, against Colonial Haven Nursing Home, Inc. (Home). The Board's Decision and Order are reported at 218 NLRB No. 137. The principal issue is whether substantial evidence on the record as a whole supports the Board's findings that the Home committed unfair labor practices.

I. Factual Background

The Home is engaged in the operation of a proprietary, professional care nursing home in Granite City, Illinois. In October 1973 the Home hired some employees and opened the facility for business. On February 5, 1974, James Potterton, Union Field Representative for Service and Hospital Employees, Local No. 50 of the Service Employees International Union, AFL-CIO (the Union), visited the Home and began distributing union literature to the employees. He was told that he should leave the premises. Thereafter, the Union continued organizational efforts and received signed Union authorization cards from 23 out of the approximately 50 employees employed at the Home prior to March 5, when it filed a representation petition with the Board. At about noon of the following day, the Home received a copy of the Union's representation petition. This representation petition was dismissed by the Regional Director on April 23, 1974, essentially upon the basis that the present employee complement was not representative of that which would be employed in the future inasmuch as the Home planned to establish more job classifications and to hire more employees.

During the period between the filing and the dismissal of the representation petition, Home Administrator Jerry Walter spoke to several employees about job evaluations and raises. While the specific rulings of the Administrative Law Judge (ALJ) and the Board will be developed in greater detail hereinafter, we note at this point by way of background that most of these conversations with some five employees occurred shortly after the receipt of the representation petition at the Home, that the ALJ found the interrogation violative of Section 8(a)(1) of the Act but found no impropriety in the wage increases and no improper implication of future wage increases. The Board affirmed these holdings except with regard to a wage increase to one employee only and implied wage increases. The issue of principal importance in the present proceeding is the status of the rights of discharged employees following a strike occurring subsequent to the dismissal by the Regional Director of the representation petition. The discharges were the basis of a second unfair labor practice charge, which has been consolidated with the first set of alleged unfair labor practices, being those which occurred prior to the dismissal of the representation proceeding.

While it appears to us that the first set of unfair labor practices are on the whole extremely mild and of a technical nature which could scarcely have had any real effect in a representation election, or in influencing employees in the exercise of their statutory rights, they do assume a place of significance as a fulcrum for the second set of charges. Because of their importance in this respect, we set forth the facts regarding the earlier claimed unfair labor practices in greater detail than we would ordinarily. If they were all that was involved in the case, we no doubt, accepting the expertise of the Board, would have given brief treatment to them notwithstanding any feeling that we might have had that they were arguably of insufficient importance to bring into play Board procedures.

Home Administrator Walter asked employee Bridick on March 6, 1974, if she had heard anything about the Union. After receiving a negative reply, he began discussing the disadvantages of a union and gave her a paycheck which he indicated would reflect a ten cent per hour pay increase. Later that evening, during a job evaluation interview with employee Barry, Walter asked if she had been approached by any Union people. Barry replied that she had not. As she was leaving, Walter told her that she would receive a nickel raise.

Still later that evening or early March 7, 1974, in an evaluation interview with employee Pierson, Walter asked her if she had seen a petition going around the nursing home. When Pierson responded negatively, Walter then told her that he had been an administrator of thirteen nursing homes, that none of them had a union, and they got along quite well without a union. He stated that he was a "nickel and dime man"*fn1 and would rather give the employees a raise when he thought that they really needed it rather than to spend it out every three or six months. He also stated that he had been an administrator at a nursing home where the nurse's aides could get as high as $2.85 an hour but which was non-union. As Pierson left, Walter told her that she would be getting a dime raise.

On March 7, Walter spoke to employee Willaredt about her job evaluation and told her she would be getting a nickel raise. Walter then began discussing the Union and asked her if she had heard about a Union petition. When she replied that she had not, he began discussing the disadvantages of a union, noting specifically that at some homes where he had worked, girls who worked at it could make good wages like between $2.85 and $3.00 an hour.

Also on March 7, Home President Robert Swiatek visited employee Gregory at the local hospital and asked her if the Union had bothered her. When she replied in the negative, Swiatek said that was fine because "there was something about a union going on." During the latter part of March, Swiatek had another conversation with Gregory about the Union. After he noted that both of them were "pretty good friends," he told her that if she heard anything about the Union, she was to let him know.

Approximately a month later, on April 24, 1974, Walter asked employee Lieneman whether she had been informed about her raise. He also asked her why the employees wanted a union in the Home. When she said that a union might be able to secure sick benefits, Walter told her that the Home paid some sick benefits, citing two examples, and also explained that with a union the Home might be unable to terminate unsatisfactory workers. In the early morning of April 27, 1974, Administrator Walter approached employee Pierson as she was preparing to clock out for the day and told her that she would be getting a twenty-five cent an hour increase for being in charge. He then instructed her to write on her time card the number of days she had been in charge so that she would be paid at the new rate. About three minutes later, Director of Nursing Skube informed Pierson for the first time that she was "in charge."*fn2

The Union received the Decision and Order of the Regional Director dismissing the Union's representation petition on April 24, 1974. On that and the following day, the Union held meetings with the Home employees to discuss what action should be taken in the future. After informing the employees that the petition had been dismissed, Union Representative Potterton outlined three possible alternatives to meet the situation: filing of a new petition, appeal of the dismissal decision, or filing unfair labor practice charges based upon unfair labor practices allegedly committed by the Home during the seven-week organizational campaign.

At the meetings on April 25, Potterton discussed with the employees the mechanics of a strike, told them that they would have to vote on whether to strike the Home, and read them a draft letter he proposed to give to the Home. This letter accused the Home of engaging in unfair labor practices and of repeatedly refusing to recognize the rights of its employees. The letter also warned that unless action in good faith were taken to settle the charges by Saturday, April 27 at 6:30 a.m., a strike would ensue. Potterton also advised the employees that if they went "out on strike because of the unfair labor practices, that the company had committed, that they could not be replaced."

The employees present at the meetings on April 25 voted to strike the Home if it did not respond to Potterton's letter by 6:30 a.m. on April 27. Also on April 25, Potterton filed unfair labor practice charges alleging violations of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), against the Home with the Board's Regional Office in St. Louis, Missouri. On the following day, he delivered the letter and a copy of the alleged unfair labor practice charges to the Home. The Home making no response to the Union's letter, approximately thirty-seven employees struck at the designated time and continued on strike until May 31, 1974.

During the first two days of the strike, both President Swiatek and Mr. Will McCain, executive vice president of Nursing Home Managers, Inc., the company managing the operations of the Home, photographed employees carrying picket signs in front of the Home and also attempted to use an inoperative movie camera for the same purpose. The picture taking, according to testimony at the hearing, was pursuant to advice of counsel although the motivation or reason for the advice was not developed. Here the Home argues that the question of what picketing is proper and what is improper is frequently a question of litigation and that the purpose of the photography was for possible use as evidence. The record does not indicate any untoward picketing incidents.

Some of the picket signs displayed during the thirty-five day strike stated "COLONIAL HAVEN UNFAIR -- SERVICE AND HOSPITAL EMPLOYEES UNION, LOCAL 50" and "COLONIAL HAVEN ON STRIKE, SERVICE AND HOSPITAL EMPLOYEES UNION, LOCAL 50 AFL-CIO." Other picket signs stated "A UNION WILL MEAN BETTER PATIENT CARE," and "$1.60 IS A MEDIEVAL WAGE." A handbill was also distributed to visitors and relatives of patients asking that patients be moved to other homes, a long list on the handbill specifying where the Union thought the patients should be sent. On the other side of the handbill, it was stated that the employer had refused to recognize the Union, that the Home was understaffed, and that employees were only paid the minimum wage.

On May 31, the Union sent and the Home received a letter indicating that the striking employees were unconditionally offering to return to work and that they would report to work at their regular starting times on Monday, June 3, 1974. When the striking employees reported for work, they were informed that they had been replaced and that they would have to make new applications for employment.

II. Administrative Proceedings

On the day when the striking employees were not allowed to report back to work, the Union filed an unfair labor practice charge claiming that the Home had discriminated against its employees in regard to terms and conditions of employment by refusing to reinstate them after they had made an unconditional offer to return to work from an unfair labor practice strike. Subsequently, as we have previously noted, the case arising from this charge was consolidated with that arising out of the charges filed on April 25. Upon the facts set forth above, the ALJ found and concluded that the Home had violated § 8(a)(1) of the Act by questioning employees Barry, Pierson, Willaredt, Gregory, and Lieneman in a manner constituting interference, restraint, and coercion within the meaning of the Act. The ALJ found and concluded that the evidence was insufficient to warrant an inference that the wage increases were given or promised in order to discourage employee union activity, and he recommended that the allegations of unlawful conduct in such regard be dismissed.

The ALJ in his decision treated the matters of the payment of wage increases and of the implied promises separately. With regard to the first aspect of the matter, the decision noted that the company had plans to evaluate employee job performance and to grant wage increases where warranted within 3 to 6 months after employment and previous evaluations, which had been made known to most employees at time of hiring, and that the job evaluations were made in February prior to knowledge of the organizational drive at which time the wage increases had been determined. The ALJ concluded that the timing of the Union's representation drive had no bearing on the job evaluations and wage increases granted. The Board affirmed the finding and ruling as to the wage increases granted in early March.*fn3 The ALJ also found the record did not support the General Counsel's position that the March 6th conferences with Walter constituted implied promises of wage increases if the employees would abandon the Union. Because of the rationale upon which he had found the granting of the March wage increases proper, i.e., that the action was planned and carried out without regard to the organizational drive, which rationale the Board apparently accepted, the ALJ likewise found no improper implication of wage increases in exchange for abandonment of the Union. The Board, however, with regard to future wage increases found that Walter was clearly attempting to impress upon employees Pierson, Willaredt, and Bridick that they would get wage increases in the future without the assistance of the Union. We have some difficulty in following the Board's reasoning on this point inasmuch as the core of the ALJ's approach was that the preexisting evaluation plan would have accomplished future wage increases when warranted and such plan was not motivated or made effective by virtue of the Union drive.

The ALJ concluded that the striking activity of the employees constituted unprotected activity. Upon considering all of the facts, the ALJ was persuaded that the strike was not an unfair labor practice strike, and that the overriding reason for the strike was for an unlawful purpose, viz., the obtaining of recognition by the Union as an exclusive bargaining agent in a bargaining unit which the Regional Director had determined to be a non-representative complement. The ALJ concluded that the overwhelming weight of the facts revealed that the Union and the employees were motivated in having a strike as a means of putting pressure on the Home to recognize immediately and voluntarily the Union as bargaining agent rather than waiting until the proper time for an election or recognition.

Based upon his conclusion that the strike clearly was for an unlawful purpose and that the employees' striking activity was not protected, the ALJ concluded that the taking of pictures or purported taking of pictures of the strikers did not constitute conduct violative of § 8(a)(1) of the Act. Similarly, the ALJ concluded that the Home had no obligation to reinstate the employees on the basis of rights as unfair labor strikers or even as economic strikers, and he concluded and found that the Home's failure to reinstate the employees upon their unconditional offer to work did not constitute conduct violative of §§ 8(a)(1) and (3) of the Act.

The counsel for the General Counsel timely filed exceptions to the ALJ's Decision, together with a supporting brief. The Home filed a document labelled as a Brief to the Board in Support of Cross-Exceptions to the Exceptions of the General Counsel.*fn4 Although it is questionable that this document complied exactly with applicable Board Rules and Regulations specifically dealing with cross-exceptions, the answering brief did place before the Board the major contentions of the parties.*fn5 Upon its ...

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