542 F.2d 691 (7th Cir. 1976), 75-1864, N.L.R.B. v. Colonial Haven Nursing Home, Inc.

Docket Nº:75-1864.
Citation:542 F.2d 691
Party Name:45 A.L.R.Fed. 118, , NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLONIAL HAVEN NURSING HOME, INC., Respondent.
Case Date:September 15, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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542 F.2d 691 (7th Cir. 1976)

45 A.L.R.Fed. 118, ,




No. 75-1864.

United States Court of Appeals, Seventh Circuit

September 15, 1976

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[Copyrighted Material Omitted]

Argued April 8, 1976.

Rehearing Denied Oct. 22, 1976.

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Elliott Moore, Robert A. Giannasi, Andrew F. Tranovich, NLRB, Washington, D.C., for petitioner.

Elton L. French, St. Louis, Mo., for respondent.

Before PELL and SPRECHER, Circuit Judges, and JAMESON, Senior District Judge. [*]

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, 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 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 six employees occurred shortly after the receipt of the

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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" 1 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

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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 Home paid some sick benefits, citing two examples, and also explained that with a union 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." 2

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 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 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 Home, and read them a draft letter he proposed to give to Home. This letter accused 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 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 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 Home. 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 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...

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