Alliance Medical Inn-New Haven

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1081 (N.L.R.B. 1971)

ALLIANCE MEDICAL INN 1081
Heritage House of Connecticut, Inc. d/b/a Alliance
Medical Inn-New Haven and Local 1199, Drug and
Hospital Union, Retail, Wholesale and Department
Store Union, AFL-CIO. Case 1-CA-7320
August 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND KENNEDY
On May 10, 1971, Trial- Examiner Benjamin K.
Blackburn issued-his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor 'practices
and recommending that it cease and desist -therefrom
and take certain affirmative action; as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief; and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers, in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial-
Examiner made at the hearing and finds that no
prejudicial error, was --committed. The rulings are
hereby, affirmed. The Board has considered `the Trial
Examiner's Decision, the exceptions, the-briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.'
1. The Trial Examiner found that Respondent
discriminatorily promulgated and enforced a no-
solicitation rule against union organizing in the
nursing home in violation of Section `8(a)(1) of the
Act. We agree. but. solely for the following reasons.
As found by the Trial'Examiner, there is evidence
that Respondent's predecessor, Extendicare, posted a
general no-solicitation rule at Heritage'-House in the
employees' dining room. However, it is undisputed
that the piece _of, paper,on which the rule appeared
had been removed a few months before Respondent
assumed controLof the home. It is also uncontradict-
ed that Respondent's predecessor permitted-solicita-
tion of other kinds during working time such as the
selling of stuffed animals and frozen lasagna. In fact,
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board's established policy not to overrule a
Trial Examiner's resolutions - with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 363 (CA. 3). We have carefully examined the record
and, find no, basis for reversing his findings.
some of this solicitation was done by Barbara
Tarutis, the director of nursing services under both
Extendicare and Respondent.
Respondent took over Heritage House on Septem-
ber 1.20n September 18, Steven Potash, a regional
administrator of Respondent, became the acting
administrator of the nursing home during the period
which is material to this case. During the last week of
September, the Union commenced a campaign to
organize, and become the collective-bargaining repre-
sentative of Respondent's employees: In this connec-
tion, Edward Cooper, one of the alleged-discrimina-
tees herein, spoke to William Morico, the union
organizer, in front of the nursing home on September
30. At, this time Morico gave Cooper a number of
blank union authorization cards. Cooper and his wife
Faye, the other alleged discriminatee herein, each
signed one of these cards on October I and returned
them to the Union. The remainder of the blank cards
were left in the laundry which was operated by, the
Coopers. Mrs. Cooper testified',-that = when other
employees had inquired about obtaining union
authorization cards while she was delivering linen on
the nursing- home floors, she had responded by
telling them they could get them in the laundry. She
also said that when nurses came to the laundry room
for linen, she had, in response to their questions,
engaged in several discussions concerning the Union.
At 3:30 p.m. on October 6, Mr. ' Cooper and 16
other, employees of 'Respondent attended a union
meeting' at the union hall. On October 7, Potash
called, Mrs. Cooper to his office-and discharged her
for soliciting for the Union on worktime. Subse-
quently, following the discharge of "the Coopers,
Respondent's employees were told by their-supervi-
sors that they were not to talk about the Union on
working time.
Although a rule prohibiting union solicitation
which is limited to employees' worktime is presumed'
to be valid, the presumption of validity may be
rebutted by a showing that the rule was adopted for a
discriminatory purpose.3 In the instant case, we are
satisfied that the General Counsel made out a prima
facie case rebutting the presumption of validity by
proving the following: (1) ' the ban was orally
promulgated at a time of intense union activity and
was-specifically directed in the first instance at one of
only two employee organizers for the Union; (2) the
rule on ' its face, and as enforced, prohibited only"
union organizing activities; and (3) the Respondent'
2 All dates hereinafter are in 1970 . We hereby correct the inadvertent,
error of the Trial Examiner concerning the date that Respondent took over
Heritage ' House. It did so in September rather than in Aprilas stated in the
Trial Examiner 's Decision.
3 See Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d
177 (C.A. 5).
192 NLRB No. 158
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was hostile to union organizing efforts, as reflected
by, its conduct found violative of Section 8(a)(3) and
(1) in firing Faye Cooper. Under these circumstances
it was incumbent upon Respondent to show that the
rule, although limited to union activity, was never-
theless required in order to maintain production or
discipline. This Respondent did not do. We find,
therefore, that the Respondent's promulgation' and
enforcement of the rule prohibiting only solicitation
and discussion relating to the Union was motivated,
not by a purpose to maintain production and
discipline, but by a purpose to interfere with the
employees' right of self-organization, and thus
violated Section 8(a)(1) of,the Act.
2. The Trial Examiner also found, based on Mrs.
Cooper's credited testimony, that she did not solicit'
for the Union on worktime' on October 6. He
therefore concluded that Respondent's asserted
reason for discharging her, namely that she solicited
union authorization cards during working hours, was
pretextual and that Respondent discharged 'Mrs.
Cooper on October 7 because of her union activities,
thereby violating Section ` 8(a)(3) and (1) of the Act.
We agree with the `Trial Examiner's finding that Mrs.
Cooper did not in fact solicit for the Union on
working time on October 6 or at any other time by
merely responding to the queries of her fellow
workers concerning the Union and how they might
obtain union authorization cards. However, assum-
ing arguendo that she did solicit for the Union on
working time, we would still find that Respondent
violated Section 8(a)(3) and (1) of the Act by
discharging Mrs. Cooper for violating its hereina-
bove found 'invalid no-solicitation rule.
3. The Trial - Examiner concluded that Respon-
dent's discharge of Edward Cooper was discrimina-
torily motivated in violation of Section 8(a)(3) and
(1) of the Act. We find merit in Respondent's
exception to this finding.
As`the Trial Examiner found, Cooper had been late
for work on at least two occasions between Septem-
ber 1 and October' 8. He also habitually refused to
abide by Respondent's rule requiring its employees
to clock' out for half an hour sometime during their
shifts to indicate a lunch break even though they
might-not, in fact, take time off for lunch. In this
regard Cooper had received numerous warnings from
both Respondent's predecessor and Respondent's
own supervisors. In addition, after being asked in
late September by Mrs. Tarutis, upon Potash's
instructions, to 'count all the -soiled linen in the
laundry, Cooper had refused to do what he had been
told and cursed at Mrs. Tarutis. This incident was
reported to Potash. Finally, Potash had been told by
other employees that they were afraid to go into the
laundry room when Cooper was there because- of
Cooper's rudeness. ' -
On .October 8, Cooper was scheduled to-report for
work at 7 a.m. When he had not arrived or phoned
by 7:10, Mrs. Tarutis called employee Stevenson to
replace him. Cooper, who had overslept, arrived at
the nursing home around 7:20 a.m. Before he went
into the home, he saw Union Representative William
Morico, who was outside the nursing home, and
stopped to ask him about his wife's discharge the day
before. When Stevenson arrived at the home a
minute or two after Cooper, he saw Cooper talking to
Morico. He told Mrs. Tarutis what he had, seen and
she sent a nurse, to the front door to check on
Cooper. The nurse reported that Cooper was talking
to the Union representative. Cooper entered the
building and. clocked in at 7:31 a,m. Mrs. Tarutis
told- Potash what had happened. However, she did
not recall whether she reported to Potash that the
man to whom Cooper was talking was a union
official.
Thereafter, Potash ordered his executive; secretary
to check Cooper's timecards and find out how often
Cooper had broken the, rule about clocking out for
half an hour in the middle of his shift. She reported
to Potash that Cooper had broken the rule on 20 of
the 21 days he had worked since Respondent took
over the nursing home, on September 'l. About 11,
a.m. Potash called Cooper to his, office and fired him.
The Trial Examiner concluded that "Potash him-
self conceded . . . that he would not' have fired
Cooper if Cooper had,not stopped to talk to Morico
when cooper was already late for work.", He-rested:
this finding upon a portion of Potash's testimony
wherein he used the expression "the straw that, broke,
the camel's back" was, that "while.rhe [Cooper ] was, a
half hour late, part of that half hour was spent in
talking to somebody else in front of -the-,facility."
When asked whether he knew to w 1 om Cooper 'was
talking;, Potash responded "I believe the person was
some union representative." The Trial Examiner then
went on to conclude that Cooper, was discharged
specifically because the -person he. spoke to was, a
union organizer, as opposed to a person unconnected
with the Union's 'organizational campaign, in light of
Respondent's discriminatory discharge of Mrs. Coop-
er ,the i night; before; 'the "clearly coercive°', interro-
gation -of Mrs. Cooper by Potash .about her hus-
band's union activities, during, Mrs. Cooper's, dis-
charge, interview; 'and Respondent's illegal promul-
gation and enforcement of a discriminatory -no-
solicitation rule.
Contrary to the Trial Examiner, we cannot find
that Potash's testimony established that "but'for'' the ,
discussion, with Morico on the day of his discharge
Cooper would not have been fired. In the context of
ALLIANCE MEDICAL INN 1083
Potash's entire testimony, it is clear that this
conversation was merely one of several reasons
Potash put forth as the basis for his discharge of
Cooper. Thus, when initially asked by the General
Counsel, "Why did you fire Edward . Cooper?"
Potash responded by stating that he did so because
of repeated complaints concerning a lack of linen;
Cooper's intimidation of fellow workers who went
down to the laundry to get linen ; Cooper's tampering
with the work schedule in the facility by interchang-
iing his time with his wife's time; and Cooper's failure
to follow rules and regulations concerning clocking
out and in for hunch. It was only when asked did he
have "[a]ny other reasons for discharging. Mr.
Cooper," that Potash made his "straw that broke the
camel's back" comment. In this context, we believe it
is reasonable to conclude that although'the tardiness
was the last - incident to :'occur before Cooper's
discharge it was just one of several other reasons
which taken together would have resulted in his
discharge in any event.
The Trial Examiner does not question that all these
reasons are justified grounds for discharge. But if we
understand his reference to pretextual grounds for
discriminatory action, the Trial Examiner is in fact
saying that but for Cooper's talking to a union
organizer Respondent would not have discharged
him for his undisputably inexcusable behavior.
Certainly, we cannot say that Respondent, as the
Trial Examiner implies, had condoned Cooper's
misconduct by not firing him previously since Potash
had only been on the job for about 2 weeks before
Cooper's discharge, during which time he engaged in
an extensive review of all aspects of the home, and
Respondent had only been operating the nursing
home a little over a month. Moreover, the record is
devoid of any - evidence of comparable situations
where conduct of the kind involved herein was not
the subject of disciplinary action- by Respondent.
Indeed, the record shows that areas of the home
other than-the laundry received similar scrutiny from
Potash, which resulted in the discharge of certain
employees. None of- these discharges have been
alleged to be discriminatory. Finally,, and most
significantly,, while the Trial Examiner apparently
regarded Potash's statement that he believed, that
Cooper had been talking to a-union organizer as an
admission of, Respondent's knowledge of Cooper's
union activities at the time he discharged him, it is
clear from Potash's testimony immediately following
the aforesaid comment that Potash found out that
Cooper had ' been talking_ specifically to a union
organizer only after he had discharged him: As the
Trial Examiner did not specifically credit Cooper's
testimony that Potash had at the time of his dismissal
told Cooper that he was discharging him for talking
to the union representative on company time, and
Cooper himself testified that he "did [not] talk to any
other employees about the Union after [he] got the
cards," we are unable to conclude that on October 8,
when Cooper was discharged, Respondent had
knowledge of Cooper's union activities or that he had
been talking to, a union organizer on the day of his
discharge.
One piece of evidence that the Trial Examiner
relied upon as proving that Cooper's discharge was
discriminatorily motivated was the alleged illegal
interrogation of Mrs. Cooper by Potash about her
husband's union activities during Mrs. Cooper's
discharge. The.Trial Examiner correctly found that
he was precluded ' from finding the interrogation to
be an independent violation -of Section 8(a)(1) as the
complaint does not allege it as an independent
violation nor was if fully litigated at the hearing.
However, he used this evidence to find a Section
8(a)(3) violation concerning the discharge of, Edward
Cooper. Since - it was not fully litigated for the
purpose of finding an independent violation=of the
Act, it was certainly not fully litigated for the
purpose of bolstering a Section 8(a)(3) violation and
therefore could not be "clearly coercive" as the Trial
Examiner found.
Finally, the fact that Mrs. Cooper was fired by
Respondent for her union activities or that Respon-
dent promulgated and enforced an illegal no-
solicitation rule does not serve alone, as a substitute
for proof that the action taken in regard to Mr.
Cooper was discriminatorily motivated,,nor does it
serve to shift the burden to Respondent to establish
its innocence. To conclude that because Respondent
violated the Act in Mrs. Cooper's case and as regards
the no-solicitation rule, it did so also in Mr. Cooper's
case is to say that its employees who have engaged in
union activities are thereafter forever immune from
the imposition of any disciplinary action by Respon-
dent. This is a conclusion that we cannot accept. The
Act's grant of rights to employees to engage in
organizing activities, to - belong to a union, and to
engage in collective bargaining was not intended to
deprive management of its right to manage its
business.
We have carefully examined the evidence concern-
ing Edward Cooper's discharge and find, on the
record as a whole, that he was discharged for cause
and not because of his union activities.4
4 For the reasons set forth by the Trial Examiner , Member Brown finds and (1) of the Act.
that employee Edward Cooper was discharged in violation of Section 8(a)(3)
1084 DECISIONS OF NATIONAL; LABOR,-RELATIONS BOARD
THE REMEDY
- We have found in agreement with the Trial
Examiner that Respondent engaged in conduct
violative of Section 8(a)(3) and (1) of the Act and,
accordingly, we adopt his remedial recommendations
in that regard: However , we have found, contrary to
the Trial-'Examiner, that ' Respondent did not engage
in conduct violative ' of Section 8(a)(3) and (1) of the
Act by its discharge of Edward ' Cooper. Accordingly,
we shall order that the complaint be dismissed with
respect to the allegation that Respondent discrimina-
torily discharged' Edward Cooper.
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 Trial Examiner as modified below
and hereby orders that Respondent, Heritage House
of Connecticut, Inc. d/b/a ` Alliance Medical Inn-
New Haven, New Haven, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial-Examiner's recommended
Order, as so modified:
1. - Substitute the following paragraph for para
graph 2(b) of the recommended Order.
"(b) Pay Faye Cooper any earnings she lost as a
result of her discharge on October 7, 1970, respec-
tively, plus 6 percent interest.''
2. Delete paragraph 2(c) of the recommended
Order,
3. Add the following as the last paragraph of the
recommended Order:
"IT - IS HEREBY FURTHER ORDERED that the
complaint-, herein be, and it hereby is, dismissed
insofar as it 'alleges that Respondent violated the Act
by discharging Edward, Cooper."
4. ' Substitute the attached notice for the Trial
Examiner's notice.
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 having found,
after a trial, that we violated Federallaw by
discharging an employee in order to discourage
membership in a labor organization and by promul-
gating and enforcing a rule, that employees are only
permitted to solicit for a union at Heritage House on
their breaks or other nonworktime:
The -National Labor Relations Act gives, all
employees ,these rights:
To, engage in self-organization
To form,;join, or help unions
To bargain collectively through a representa-
tive .of.theirown choosing
To,act together for, collective bargaining or
other,aid or protection ;
To refrain from , any or- all , of these things.
WE, WILL , NOT ,discharge you in , order to
discourage , membership in, Local 1199,,Drug and
Hospital Union; Retail , Wholesale and,Depart-
ment Store Union,. AFL-CIQ,, or any other labor
-organization.
WE WILL NOT promulgate , and, enforce any
more discriminatory-no-solicitation rules.,
WE WILL, NOT interfere with you, or attemptg to
restrain or coerce you, in the exercise of the above
rights.
WE WILL pay Faye Cooper for any earnings she
lost as a result of her discharge on October 7,
1970, plus k percent interest.,
All our employees are,free, if they choose , to; join
Local 1199, Drug, - and Hospital , Union, Retail,
Wholesale and Department Store . Union,,AFL-CIO,
or any other labor organization.
HERITAGE HOUSE OF
CONNECTICUT, INC.
D/B/A, ALLIANCE, '
MEDICAL INN-NEW
HAVEN
(Employer)r
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must , remain posted for 60 consecutive
days' from the, date of posting, and must not be
altered, defaced,, or covered , by -any =other ^ material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to,the
Board's Office, Bulfinch Building, Seventh Floor,. 15
New Chardon Street, Boston, Massachusetts -02114,
Telephone 617-223-3330.
TRIAL EXAMINER'S, DECISION
STATEMENT OF^THE CASE
BENJAMIN K., BLACKBURN, Trial Examiner: Local 1199,
Drug and Hospital Union, Retail,,, Wholesale and Depart-'
ment Store Union, AFL-CIO, referred to herein as the
Charging, Party or the Union, filed an unfair labor, practice
charge against Heritage House of Connecticut, Inc. d/b/a
ALLIANCE MEDICAL INN 1685
Alliance Medical Inn-New Haven, referred to herein as
Respondent, on October -13, 1970,1 and amended it on
October 23. On January 22, 1971, the General Counsel of
the National Labor Relations Board, by the Acting
Regional Director for Region I (Boston, Massachusetts),
issued a complaint alleging violation of Section 8(a)(1) and
(3), of the Act ^ The complaint was subsequently amended
on February 9, 1971, and at the hearing. Respondent's
answers, duly filed, admitted certain allegations of the
complaint and denied others, including the allegation that
it had committed any unfair labor practices.
Pursuant to due notice, hearing was held before me in
New Haven,, Connecticut, on March 9, 1971. The issue
litigated was, Respondent's motive for discharging Faye
Cooper on October 7 and her husband, Edward Cooper,
on - October 58. All, parties appeared and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and
to file briefs. Upontthe entire record, including briefs filed
by the General Counsel and Respondent, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE 'BUSINESS OF RESPONDENT
Alliance Medical Inns, referred to herein as Alliance, has
its headquarters in Stratford, Connecticut, and is engaged
in the business- of-,operating-proprietary nursing homes.
Respondent, , a Connecticut corporation, is. one of those
homes., It is -located in , New Haven and is known as
Heritage. House. During the calendar year just prior to
issuance of the complaint in this case, Alliance and
Respondent each had gross revenue in excess of $100,000
and each received drugs and supplies valued in excess of
$10,000 which originated outside the State of Connecticut.
On the basis of these admitted facts, I find Respondent is
engaged .in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Facts
1. Background
Heritage House was formerly operated by Extendicare
Corporation. It was taken over by Alliance on April I.
Robert Taylor, was administrator of the, home under
Extendicare. He remained in that position for a, few days
under Alliance. When he left, Barbara Tarutis, director of
nursing services, took over the duties of administrator on
an interim basis until Steven Potash, a regional administra-
tor for Alliance,, arrived on the scene around September 18.
Potash acted as administrator of Heritage House during the
period thereafter which is relevant to this case. Mrs.
Tarutis continued under Alliance as director of nursing
services.
Edward and Faye Cooper operated the laundry at
Heritage House under Extendicare. They continued in
those positions under Alliance. Mrs. Cooper first went to
work at Heritage House as a nurses aide in June 1969 and
transferred to the laundry, at her own request, in June
1970. Cooper worked at Heritage, House from August to
December 1969, left, then was rehired in May 1970.
Edward Cooper ran the laundry on the first shift; Mrs.
Cooper, on the second. No one worked in the laundry on
the third shift.
The Union began a campaign to organize Respondent's
employees around the last week in September. Cooper
talked to William Morico, the organizer, in front of the
home on September 30 and accepted a number of blank
authorization cards from him. Cooper and his wife each
signed one of these cards on October, l and returned them
to the Union. The balance of the blank cards Cooper had
received from Morico were left in the laundry,
The Union petitioned for a Board election (Case
1-RC-11299). It was held on January 5, 1971. The results,
were 27 votes for representation by the Union, 25 against,
and 5 challenged ballots. Two of the challenged ballots
were cast by the Coopers. Respondent filed timely
objections. The Regional Director has not yet issued his
report on Respondent's objections and the challenges
which are, of course , determinative in the event Respon-
dent's objections are overruled.
2. Foreground
A few days after Potash arrived on the scene, he held a
meeting-with nurses and nurses aides in which he was told
by them that Cooper was frequently rude to them when
they went to the laundry to pick up clean linen, so much so
that they were afraid to go into the laundry when Cooper
was there.
Potash also ordered an inventory of the home's linen
supply to see whether there was enough on hand to comply
with a state requirement of three complete sets for each
occupied bed. Mrs. Tarutis selected 11 a.m. on a given day
in late September as the time for the inventory. She sent
word to Cooper that morning to count all the soiled linen
in the laundry starting at 11 a.m. At 11 a.m. she went to the
laundry and reminded Cooper to start his count because
the personnel on the upper floors of the home were starting
their counts at the same time. Cooper did not reply.
Around 1 pm. Cooper went to Mrs. Tarutis' office and
said,;to her,"[H]ey you, how the hell you think I'm gonna
get this done at this time when I don't have enough time to
do it." Mrs. Tarutis reported to Potash that Cooper had
refused to do the linen , count. Potash told Mrs. Tarutis to
tell Cooper to do what he was told or report to Potash.
Instead, Mrs. Tarutis elected to reschedule the linen count
for the next day. Cooper counted dirty linen that day
without incident.
Both before and after September 1, employees at
Heritage House were required to clock out for half an hour
3 Dates are 1970 unless otherwise indicated.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime during their shifts to indicate a lunch break even
though they might not, in fact, take time off for lunch.
Cooper habitually violated this rule. He was warned about
it by Taylor during the period in which Taylor was
adananisirator. He was warned about it by Mrs. Tarutis in
the period when she' acted as administrator. On more than
one occasion after Potash's arrival and before' October 8,
Mary Ellen Massicotte, executive secretary to each of the
administrators in turn; called Potash's attention to Coop-
er's continuing failure to abide by the rule. Potash had Miss
Massicotte tell Cooper to clock out and in as he was
supposed to.
3. The discharges of the Coopers'
Faye Cooper- went to work as usual at 3 p.m. on
Tuesday, October 6. In the early evening she went from the
laundry to the third floor of the home to deliver some
personal linen which she had laundered to the patients who'
owned it, a not unusual event. On her way back to the
laundry she stopped to chat at the nurses' station. Several
eniployees'were present. One of the women asked her if-she
knew how' the Union was doing. She said she did not.
Another woman asked her for an authorization card. Mrs.
Cooper said, "I don't have any on me. I don't carry
'em.... [I if you want one, there is one in the laundry,"
The other woman replied, "Okay," and' Mrs. Cooper
walked away, Selma Baker, the nurse in charge of the third
floor, heard the conversation.
On October 7 Potash summoned Mrs. Cooper to his
office and discharged her for soliciting for the Union on
worktime. She asked him to tell her who had reported this
to him. He refused. She denied that she had solicited for
the' Union. He asked if her husband had any part in
passing out cards for the Union. She said she"did not know,
He asked how Cooper, who had been having trouble with
his back, was feeling. She said that he was feeling pretty
good. Potash said he wanted Cooper to have a physical
examination and he would pay for it. Potash asked how
Mrs. Cooper thought her husband would feel about' Mrs.
Cooper's being - fired, Mrs. Cooper said, "Well,' l don't
think he'll feel too good about it." Mrs. Cooper asked if
Potash wanted her to finish the shift because, otherwise,
the staff would be short of linens. Potash told her not to
worry about it, he would take care of it. Mrs. Cooper went
home' and' told her husband what 'had happened.
Cooper wag scheduled to report for work at 7 a.m. on
October 8. When he had not arrived or phoned by'7:10,
Mrs. Tarutis sent for one Stevenson, a porter who worked
at the home and lived nearby, to come to work and take
over operation of the laundry. Cooper, who had overslept,
arrived at the home around 7:20 a.m. At the entrance he
ran into Morico, the union organizer. He stopped tb talk to
Morico! He told Morico about his wife's being discharged
the night before. When'Stevenson arrived at the home a
minute ' or two after Cooper, he saw Cooper talking to
2 This finding is based on Cooper's timecard for October 8, which is, in
evidence. That his scheduled reporting time that day was 7 a.m. is
undisputed. The other time findings in this paragraph are my approxima-
tions' based on the record as a whole . Cooper estimated he talked to Morico
5 to 7 minutes. Respondent 's witnesses testified he talked anywhere from 10
to 20 minutes. No witness impressed me as having any clear recollection of
Morico in front of'the building. He told Mrs. Tarutis what
he had seen. Mrs. Tarutis sent Stevenson to the laundry to
get the machines-started and a ,nurse to the front door to
check on what Cooper was doing. The nurse reported that
Cooper was talking-to- the union representative. Cooper
came into the-building and clocked in at 7:31 a.m.2 He
went to work in the'iaundry. Mrs. Tarutis told Potash what
had happened.
Potash ordered Miss Massicotte to check Cooper's
timecards and find-out how often Cooper had broken the
rule about clocking out for half an hour in the middle of
his shift. She did so. She reported"to Potash, accurately,
that Cooper had broken'the rule'on-20 of the 21 days he
had worked since Alliance took over °Henitage House on
September 1. 1
Around 11 a.m., Potash summoned Cooper to his office
and fired him for talking to Morico on company time 'that
morning.
Following the discharges of the Coopers, orderlies' and
nurses aides were instructed by the licensed nurses with
whom they worked that they were to talk about the Union
in order to solicit-members' only on their breaks and not on
worktime.
B. Analysis,and Conclusions
1. The discharge of Faye Cooper
My . findings, above as to what happened on the evening
of October 6 are based on the credited--testimony of Faye
Cooper. She-was the only, person present -on that occasion
who testified. Mrs. Tarutis testified that, approximately-10
days before-October 6 and again a few days)later, Mrs.
Cummings, the evening supervisor, told her that . Mrs.
Cooper was soliciting for the Union on worktime and that
she had instructed Mrs. Cummings to warn Mrs. Cooper.
Mrs. Tarutis also ' testified that, when she telephone the
home on the evening of October 6, Mrs. Cummings told
her Mrs. Cooper had "approached her with a union card
... on [Mrs. Cooper's] work time." Mrs. Tarutis then
reported to Potash, presumably on the morning of October
7, that Mrs. Cooper was soliciting for the Union on
company time. -
Mrs. Tarutis' testimony about what Mrs. Cooper did is,
of course, hearsay and will not sustain a finding that Mrs.
Cooper did, in fact, solicit for the, Union on worktime,
either on the evening of October 6 or at any other time. I
find, based on Mrs. Cooper's account of what happened
that evening, that she did not solicit for the Union on
worktime on October 6. Respondent's asserted reason for
discharging Mrs. Cooper was that she solicited union
authorization cards during' working hours. Mrs. Cooper
testified credibly that she did not solicit for' the Union
during company time. Respondent offered no competent
evidence to the contrary. I find, therefore, that Respondent
discharged Faye Cooper on October 7"because of her
just how much time Cooper stood in front of the building before reporting
for work. I conclude,'as indicated, that the truth lies somewhere in the
middle. In my view, it is immaterial whether Cooper paused as little as
minutes oi'as many as 20 because the diapositive fact is that he stopped to
talk, not how long he took.
ALLIANCE MEDICAL INN
union activities, thereby violating Section 8(a)(3) and (1) of
the Act. United Aircraft Corporation, (Pratt & Whitney
Division), 179 NLRB No. 160.
2. The discharge of Edward Cooper
The case of Edward Cooper is more difficult. In the first
place, his is clearly a "but for" situation; i.e., but for his
stopping to talk to Morico on the morning of October 8, he
would not have been discharged. Cooper-had been late for
work on at least two prior occasions between September I
and October 8 and not been fired for it. He had stubbornly
refused to abide 7by the rule about clocking out and in at
lunchtime, despite numerous warnings and not been fired
for it. He had cursed at Mrs. Tarutis during the linen count
incident and refused. to do what he was told and not been
fired for it. Potash had been told by other employees that
they were afraid to go into the laundry room when Cooper
was there , and Cooper had not been fired for it. Finally,
and most importantly, Potash himself conceded, when he
testified thus, that he would not have fired Cooper if
Cooper had not stopped to talk to Morico when Cooper
was already late for work:
Q. Excuse me . Any other reasons for discharging
Mr. Cooper?
A. Well, the straw that broke the camel's back, so to
speak, was on the day that he was terminated. I walked
into the home at approximately 8:00 o'clock or so in
the morning. And the-first thing that-hit me was that
Mr. Cooper had _not come on the job. He was-had
clocked in, I believe, about one half hour late.
And with the critical linen problem that I had, this
just-this just was too much at that point for me to
'really 'take. As a result, I also learned that while he was
a half hour late, part of that half hour was spent in
talking to somebody else in front of the facility. And
that just to me was a little bit too much.
Q. Whom was he talking to, do you know?
A. I believe the person was some union representa-
tive. [Emphasis supplied.]
The question of whether Cooper's discharge was an
unfair labor practice, then, comes down to whether Cooper
was discharged, because the person he had the temerity to
speak to instead of coming in to go to work immediately
was aunion organizer or whether he would have been fired
under- the circumstances no matter whom he had stopped
to speak to. Stated another way, if Cooper would have
been discharged if he had stopped to talk to some person
unconnected with the Union's organizing campaign about
some subject unrelated to Section.7 rights, there is no
violation of the Act. The -Act has been violated only if the
controlling factor in the situation can be found to be the
fact that the person to whom Cooper talked was Morico
and not someone else. -
There are three aspects of this record which bear on this
question . First is the, fact, as found above, that Respondent
discriminated against Mrs. Cooper when it discharged her
the night before. Second is, die fact that Potash interrogat-
ed Mrs . Cooper about her husband's union activities when,
during the discharge interview, Potash asked Mrs. Cooper
if her husband had any part in passing out cards for the
Union. The General Counsel refers to this in his brief as
1081
"the unlawful interrogation of his wife concerning the
Union activities of Mr. Cooper." However, the complaint
does not allege it as an independent violation of Section
8(a)(1), such an issue was not fully litigated at the hearing,
and I am, therefore, precluded from finding it to be an
unfair labor practice even though it is, I think, clearly
coercive within the meaning of that section of the Act.
Third is the one independent violation of Section 8(a)(1)
which is alleged in the complaint. As finally amended, the
complaint alleges and Respondent's answer` denies a
violation of Section 8(aXl) in that Respondent "did at its
New Haven home . . . [sjince on or about October 7, 1970
maintain or enforce in a discriminatory manner a rule
against solicitation as to employees soliciting for a Union
during work time."The evidence bearing on this subsidiary
issue establishes that, while a general no-solicitation rule
may have been posted at Heritage House when it was
operated by Extendicare Corporation, the paper disap-
peared long before Alliance came on the,scene and, in any
event, the rule was much honored in the breach under
Extendicare. Mrs. Cooper herself sold stuffed animals to
staff members and patients at Eastertime in 1970, while
Mrs. Tarutis peddled frozen lasagna, which she stored ° in
the home's refrigerators, at one time, apparently in early
1970. There is, however, no evidence of any such activity in
the home in the period between September 1, when
Alliance took over, and October 7-8, when the Coopers
were-discharged.
When Potash told Mrs. Cooper that he was discharging
her for soliciting for the Union on company time; he
promulgated a rule on Respondent's behalf which limited
such solicitation to nonworking time. Lou De Young's
Market Basket, Inc., 159 NLRB 854. Such"a rule is, of
course, presumptively valid. Topeka Discount, Inc., 181
NLRB No. 8; Hosiery Corporation of America, 175 NLRB
No. 31; Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 52x.
The question is whether the General Counsel has managed
to rebut that presumption. I find that he has. While this
case cannot be said to be on all fours with Hosiery
Corporation and Pepsi-Cola, supra, since, strictly speaking,
the General Counsel has not proved other kinds of
solicitation by Respondent after it took over Heritage
House, I think it is significant that there _is also no
indication in the record, from either side, that Alliance has
changed any of Extendicare's policies or practices. There,
fore, based on the undisputed fact that Respondent's ban
on solicitation was not promulgated until after the advent
of union organization and that the rule on its face
prohibited only union organizing activities and based on
Respondent's failure to demonstrate that the rule, although
limited to union activity, was legitimately required in order
to maintain discipline, I find that Respondent's motive for
promulgating it was a discriminatory one. Based on the
undisputed fact that nurses have told other employees they
are only to talk about the Union on their breaks, I find that
Respondent has enforced its no-solicitation rule since the
discharge of Mrs. Cooper. By promulgating' and enforcing
a no-solicitation rule for the purpose of interfering with its
employees' Section 7 rights, Respondent has violated
Section 8(a)(1) of the Act.
Although the question is a close one, I am persuaded by
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these three aspects of the record (viz, that Respondent
committed unfair labor practices when it discharged Mrs.
Cooper and when it promulgated and enforced a discrimi-
natory no-solicitation rule and that Potash indicated his
concern about Cooper's union activities when he interro-
gated Mrs. Cooper even though, technically, Respondent
did not commit an unfair labor practice in that episode)
that Potash would not have discharged Cooper if, on the
morning of October 8, Cooper had stopped in front of the
home to talk to anyone other than a union organizer. I
find, therefore, that Respondent discharged Edward
Cooper for engaging in union activities, thereby violating
Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAw
1. Heritage House of Connecticut, Inc. d/b/a Alliance
Medical Inn-New Haven is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 1199, Drug and Hospital Union, Retail,
Wholesale and Department Store Union, AFL-CIO, is a
labor organization within, the meaning of Section 2(5) of
the Act.
3. By discharging Faye Cooper, on October 7 and
Edward Cooper on October 8, 1970, for engaging in union
activities, Respondent has violated Section 8(a)(3) and (1)
of the Act.
4. By promulgating a no-solicitation rule on October 7,
1970, and enforcing it thereafter for the purpose of
interfering with employees' Section 7 rights, Respondent
has violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and remedy them: I
will recommend 'that Respondent be ordered to rescind the
discriminatory no-solicitation rule it promulgated on
October 7, 1970. The complaint indicates that Faye Cooper
was reinstated to her former or a substantially equivalent
position on December 3. Therefore, an order that she be
reinstated is unnecessary. There is, however, no indication
that she has also been made whole for any wages lost as a
result of Respondent's discrimination. In order to remedy
the discriminatory discharges of Faye and Edward Cooper,
therefore, I will recommend that Respondent be required
to offer reinstatement only to Edward Cooper but to make
both of them whole with backpay computed on a quarterly
basis, plus interest at 6 percent per annum, as prescribed in
F. W. Woolworth Company, 90 NLRB 289, and Isis
3 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor ' Relations Board, the
findings, conclusions, and recommended Order herein shall, as providedIn
Section 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.
Plumbing & Heating Co., 138 NLRB 716-Finally, I will
recommend that Respondent post appropriate notices.
Upon the foregoing findings of fact,,conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I' hereby issue the following recommended:3
ORDER
Heritage House of Connecticut, Inc. d/b/a Alliance
Medical Inn-New Haven,, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
'(a) Discharging its employees in order to discourage
membership in Local 1199, Drug and Hospital' "Union,
Retail, Wholesale and Department- Store Union,'
AFL-CIO, or any otherlabor organization.
(b) Promulgating and enforcing no-solicitation rules for
the purpose of interfering with employees' Section 7 rights.
(c) In any like or related manner interfering with,
restraining, or" coercing employees in the exercise of rights,
guaranteed in Section 7 of the Act.
2. Take `the following affirmative i action necessary to
effectuate the policies of the Act:
(a) Rescind the rule it promulgated on October 7, 1970,
that employees are only permitted to solicit for the Union
at Heritage House on their breaks or other nbnworktime.
(b) Offer Edward Cooper immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position and pay him and ^ Faye
Cooper any earnings they lost,as a result of their- discharges
on October 8 and 7, 1970, respectively, plus 6 ^ percent
interest.
(c) We will notify immediately the above-named individ-
ual if presently serving in the Armed Forces of the United
States, of the right to full reinstatement; upon application
after discharge from the Armed Forces, in accordance with
the' Selective Service Act and the, Universal Military
Training and Service Act.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all -other' records
necessary to analyze the amount of backpay due,under the
terms of this Order.
(e) Post at its nursing home known as Heritage House in
New Haven, Connecticut, copies of the attached w, notice,
marked "Appendix "4 Copies of said notice, on forms
provided by the: Regional Director for Region,, 1, after
being duly signed by Respondent's representative, shall be
posted by ,it immediately upon receipt therpof,1 and -,be
maintained by it for 60, consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are.-customarily, posted. Reasonable steps, shall
be taken by Respondent to insure that said notices are not
altered, defaced, or, covered by any other material.
(f) Notify, the Regional Director for Region -1, in writing,
4 In the event that ,the Board's Order is euforcedby s Judgment of a
United States Court of Appeals, the words in the' notice reading POOSTEDs
BY ORDER OF THE NATIONAL LABOR RELATIONS BOt D''' shall
be changed to read "POSTED PURSUANT TO A JUDGMENT OF-THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
ALLIANCE MEDICAL INN 1089
within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5
a In the event that this recommended Order is adopted by the Board the date of this Order, what steps the Respondent has taken to comply
after exceptions have been filed, =this provision shall be modified to read: herewith."
"Notify the Regional , Director for Region 1, m writing, within 20 days from
It