Americare Convalescent Center

National Labor Relations Board - Board Decisions

Jul 15, 1986

280 N.L.R.B. 1206 (N.L.R.B. 1986)

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shore Pointe Associates , Inc., d/b/a Americare Con-
valescent Center and Michigan Health Care As-
, District 1199M , National Union of
Health Care Employees, AFI.-CIO. Case 7-
CA-24086
15 July 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 17 April 1986 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.'
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 brief and has
decided to affirm the judge 's rulings, findings,2 and
conclusions3 and to adopt the recommended Order
as modified.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
2.
"2. By soliciting grievances, by threatening em-
ployees, by making promises to employees, and by
conveying to employees the futility of selecting a
union as their bargaining representative , the Re-
spondent has violated Section 8(a)(1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Shore Pointe Associates, Inc., d/b/a
Americare Convalescent Center, Detroit, Michi-
gan, its officers, agents, successors, and assigns,
' No exceptions were filed by the Respondent.
We find meet in the General Counsel 's exceptions to the judge's
finding that the statement of the Respondent 's official, Seghk, that if the
Union came in, "she would not be able to give employees recognition or
bonuses for excellent work" constituted a promise of benefit rather than,
as we find, a threat of reprisal . We also note his incorrect reference to
discriminates Ronnie Williams as Gloria Williams , and his failure to in-
clude in the notice language in the order relating to the Respondent's un-
lawful solicitation of employee grievances.
In addition , we note that the judge erroneously stated in the first sen-
tence of the "Discussion" in sec. III,B of his decision that "Love was
clearly never a supervisor within the meaning of Section 2(11) of the
Act." Rather, the record shows, and the judge's next sentence reflects,
that Love had previously been a supervisor of the nurses.
s The General Counsel has excepted to the judge 's failure to make a
separate legal conclusion and provide a remedy for his finding that the
Respondent engaged in conduct which conveyed to employees the futilr
ty of selecting a union as the ir bargaining representative We find ment
in this exception and shall amend the conclusions of law and modify the
Order and notice accordingly.
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(b).
"(b) Soliciting grievances from or threatening or
promising benefits to any employee to affect his
union support or activities, or conveying to em-
ployees the futility of selecting a union as their bar-
gaining representative."
2. Substitute the following for paragraph 2(a).
"(a) Offer Thelma Hooper, Vickie Bey, Steph-
anie Thompson, Fred Evans, Margaret Killough,
Patricia Garrett, Charles Smith, Carolyn Scott,
April Rae Gilliard, Vilma Curry, Francine
Schaffner, and Ronnie Williams immediate and full
reinstatement to their former jobs or , if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them , in the manner set forth in the
remedy section of the decision."
3. Substitute the attached notice for that of the
administrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Michigan
Health Care Associates, District 1199M, National
Union of Health Care Employees, AFL-CIO or
any other union.
WE WILL NOT solicit grievances or threaten you
or promise benefits to affect your union support or
activities , or convey to you the futility of selecting
a union as your bargaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
280 NLRB No. 130
AMERICARE CONVALESCENT CENTER
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Thelma Hooper, Vickie Bey,
Stephanie Thompson, Fred Evans, Margaret Kil-
lough, Patricia Garrett, Charles Smith, Carolyn
Scott, April Rae Gilliard, Vilma Curry, Francine
Schaffner, and Ronnie Williams immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL notify each of them, that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
SHORE POINTE ASSOCIATES, INC.,
D/B/A AMERICARE CONVALESCENT
CENTER
John Ciaramitero, Esq., for the General Counsel.
Roy R. Hunsinger, Esq. (Stringari, Fritz, Kreger, Ahearn,
Benett & Hunsinger), of Detroit, Michigan, for the Re-
spondent.
Eilleen M. Hayess Esq., of Detroit, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. On
charges filed on 10 December 19841 by Michigan Health
Care Associates, District 1199M, International Union of
Health Care Employees, AFL-CIO (the Union), the
General Counsel issued a complaint on 31 January 1985
alleging that by soliciting grievances, promising benefits,
making threats , and stating the futility of an imminent
vote on union representation, and by discriminatorily dis-
charging 12 employees, Shore Pointe Associates, Inc.,
d/b/a Americare Convalescent Center (Respondent)
interfered with, restrained, and coerced its employees in
the exercise of rights under Section 7 of the National
Labor Relations Act (the Act), in violation of Section
8(axl) and (3) of the Act. A hearing was held before me
at Detroit, Michigan, and all parties thereafter submitted
briefs.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
i All dates are in 1984 unless otherwise indicated
FINDINGS OF FACT
1. JURISDICTION
1207
Respondent provides longterm geriatric care services
at its facility in Detroit, Michigan. It admits and I find
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It is stip-
ulated and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
A. Respondent's Economic History and Sale
Respondent's corporate predecessor filed Chapter XI
bankruptcy in October 1982, while the Federal Internal
Revenue Service was threatening foreclosure for failure
to turn over withholdings on wages. An arrangement
was approved by which Respondent was to pay its tax
obligations in full, and 50 percent of other debts, over a
3-year period at the rate of about $8000 per month to the
IRS; $4000 per month to state and local tax authorities;
and $500 to $800 per month to general creditors. Subject
to making these payments, Respondent was discharged
from bankruptcy about December 1983. The controlling
stockholder wanted to sell the business, but a purchaser
could not be found until, in mid-October, an agreement
was reached with Aysel Seglik , a registered nurse em-
ployed by the absentee owner as administrator and gen-
eral manager since 1978.
Though the terms of the purchase are not in the
record, it is undisputed that Respondent purchased the
business retroactively as of 1 October, and that Respond-
ent is obligated to continue the monthly payments of
$12,500 to $12,800 under the agreement by which its
predecessor was discharged from bankruptcy. Because it
did not have the capital necessary to operate, Respond-
ent borrowed receivables of about $170,000 from the
seller to be repaid at the rate of $10,000 per month.
B. Staffing and Staff Functions
Respondent's facility has two residential floors, each of
which must be staffed by at least one nurse2 and a suffi-
cient number of nurses aides and/or orderlies to provide
an employee-patient ratio of 1:8 from 7 a.m. to 3 p.m.,
1:12 from 3 p.m. to 11 p.m., and 1:15 from 11 p.m. to 7
a.m. Certain functions, such as obtaining and dispensing
medications, can only be performed by nurses, who must
also sign approval on records required to be kept by
aides, such as daily reports of body functions and vital
signs and of food and supplement consumption by each
patient. Nurses direct aides and orderlies and are author-
ized to send an aid or orderly home if unable to works
and to prepare written reprimands for failure to perform
work properly. Such reports are forwarded to the office
of the director of nurses (DON) for proper reprimand to
2 Seglik, as administrator , is a registered nurse, as is the director of
nursing. Other personnel referred to as nurses are licensed practical
nurses or graduate nurses awaiting licensing.
s Nurses also see that aides and orderlies do not work over 40 hours
per week, or overstaff or understaff a shift
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be given by the director. Nurses are not authorized to
hire or fire aides or orderlies, or make effective recom-
mendations pertaining thereto, and may direct them only
to the extent of seeing that predetermined tasks are ac-
complished.
Nurses are hired and fired by and are responsible to
the DON.4 There were two different individuals em-
ployed as DONs , and they will simply be referred to as
the DON rather than by name.
Nurses, orderlies, and aides work a 40-hour week.
Since staffing is required around the clock, 7 days per
week, schedules of personnel assignments are required
and are prepared by the DON on 6-week cycles. Nurses
categorized as full time , i.e., 40 hours per week, are gen-
erally assigned the same shift and operating on the same
floor at all times ; as part-time, i.e., less than 40 scheduled
hours per week, and , after Seglik's purchase, as contin-
gent, i.e., not scheduled but called on an as-needed basis.
When a scheduled nurse is unable to work all or part of
her shift , the absence is made up by trading scheduled
shifts, by having another nurse work a double shift, by
adding to the number of hours a part-time nurse will
work or, after Seglik's purchase , by calling in a contin-
gent nurse.
C. Positions Added Prior to Seglik's Purchase
Only one nurse per floor is required by state regula-
tion, but in April as Seglik and the DON began prepar-
ing for the annual licensing re-examination to take place
in October or September it was recognized that many re-
quired functions were not being performed. It was decid-
ed to utilize one additional nurse daily on both morning
and afternoon shifts to assist the charge nurses.
In addition, the DON wanted a person to exercise au-
thority over the nurses on those shifts . Harold Love was
chosen and given the title of in-service patient care coor-
dinator.5
The job summary provides, in part, the following:
Orientation and on-the-job training for professional
and nonprofessional Nursing Personnel . Will pro-
vide skilled training , continued education, and lead-
ership and management development for selected
personnel in harmony with the basic policies of the
facility. Systematically plans and documents pro-
grams. A Nurse Attendant Manual and Nursing
Procedure Manual will be continually assessed and
any necessary changes will be implemented by eval-
uating the needs of the personnel in relationship to
the needs of the patient . In Service programs will
be planned that will assure individualized rehabilita-
tive nursing care . Will follow directions for infec-
tion control tabulations and will give inservice to all
nursing personnel-tabulate meetings.
Actually, the administrator has also hired, and certainly has fired,
nurses.
a The job description titles the position as patient care coordination,
but it was referred to by the nurses as the care coordinator , which is the
title that will be used herein.
The summary also provides : the title of jobs super-
vised : all nursing personnel and nursing personnel in ori-
entation.
The testimony of individual nurses was that while
Love occupied this position they considered him their
supervisor , and in her statement to the Board and in her
trial testimony Seglik also categorized Love as a supervi-
sor.
D. Union Organizational Effort
Following Respondent 's relicensing examination, it ap-
parently received some letter derogatory of some aspect
of nursing . Nurses Hooper and Brown , both of whom
had been hired in May, asked to speak with Seglik about
it, but she would not see them .6 They then spoke to
Love, and asked him about contacting the Union.7
On 9 October, the Union filed a petition to recertify as
exclusive collective-bargaining agent of a unit consisting
of "all licensed Practical Nurses and all Graduate Practi-
cal Nurses" with the usual exclusions . On 30 October
Respondent consented to an election , to be held 30 No-
vember. The Union won the election by a vote of 6 to 1,
and on 10 December was certified the exclusive bargain-
ing agent of a unit consisting of:
All licensed practical nurses and graduate practical
nurses employed by the Employer at its facility lo-
cated at 19211 Anglin, Detroit, Michigan; but ex-
cluding all employees covered under an existing
collective bargaining agreement , Administrator, As-
sistant Administrator , Director of Nursing, Assistant
to the Director of Nursing , office clerical employ-
ees, guards and supervisors as defined in the Act.
E. Dates ofHire and Termination
The following nurses were hired on the dates indicat-
ed, and remained as employees of Respondent as of the
hearing:
Name Date of hire
Reilly 8/26/76
Whitty 5/17/82
Vargesi 6/30/82
Galloway 12/3/82
Braxton 9/12/83
Love 12/27/83
Cox 4/11/84
Bryant 5/2/84
Brown 5/3/84
The following nurses were hired and terminated as in-
dicated:
s Seglik testified that during this period she was completely involved
with details of the purchase and other matters, and did not have time for
a meeting.
T The Union previously represented a bargaining unit of Respondent's
predecessor's nurses but, at a time not indicated in the record, was decer-
tified. Love gave them the name and phone number of the union employ-
ee to contact , and they did so. Hooper and Brown obtained authorization
cards, which they distributed among the employees, had signed and re-
turned to the Union, apparently had all nurses wearing union buttons,
and had a number of employees, including Love, attending union meet-
ings.
AMERICARE CONVALESCENT CENTER 1209
Name Hire date Termination
Hooper 5/7/84 11/26/84
Bey 5/8/84 11/26/84
Thompson 5/22/84 11/27/84
Evans 5/24/84 11/27/84
Killough 6/8/84 11/27/84
Garrett 7/23/84 11/27/84
Smith 8/14/84 11/27/84
Scott 9/10/84 11/27/84
Gilliard 9/11/84 11/26/84
Curry 10/12/84 11/27/84
Schaffner 10/15/84 11/27/84
Williams 10/27/84 11/27/84
Hooper, Bey, and Gilliard have thereafter been placed
on the list of "contingent nurses" and have been phoned
from time to time with requests to do part-time work.
III. UNFAIR LABOR PRACTICES
A. Seglik 's Direct Statements
On 8 November Seglik called a mandatory meeting of
nurses . She told them that she had become the owner of
the facility ; that because they all were "one family"
there was no need for a third party to come in and rep-
resent the employees; that she was always ready and
willing to talk with employees and to help with their
problems . Some employees spoke up, complaining that
Seglik would not meet with them in the past, and that
supplies were not always available . Seglik replied that
she had been too engrossed in details of the purchase of
the facility to meet as requested, but that she would be
available to meet and to take care of supply shortages in
the future. Other nurses complained of economic mat-
ters, such as minimal benefits and holidays, and on these
matters Seglik merely listened and "smiled" and made no
response.
On 16 November nurses were informed by the em-
ployee from whom they normally received their pay-
checks that distribution of the checks would be made by
Seglik, in her office. A group of nurses went into the
office together where Seglik again told them that they
were all one "family," which did not need to bring out-
siders in to solve problems; that if outsiders came in
communications would break down and that she would
not be able to give employees recognition or bonuses for
excellent work; 8 and that if they had any problems in the
future they could come and discuss the problems with
her directly.
Discussion
A number of statements made by Seglik are alleged as
violations of Section 8(aXl) of the Act. It is well settled
that the test of interference , restraint , or coercion does
S Respondent's practice had been to give Christmas bonuses of $50 to
the nurses and up to $100 to department heads and others.
not turn on Respondent 's motive or its success . The test
is whether Respondent engaged in conduct that could
reasonably be said to tend to interfere with the free exer-
cise of employees ' rights under the Act .9 From these
statements, from Seglik 's statements made through
Harold Love, next discussed, and through Seglik's mass
discharge of employees, thereafter discussed, I find that
Respondent displayed an antiunion attitude that in all the
circumstances tended to interfere with the free exercise
by employees of their rights.
Seglik stated to the nurses prior to their representation
election that there was no need for a "third party," i.e., a
union, to represent employees . Section 8(c) of the Act
provides that such a statement is not an unfair labor
practice "if such expression contains no threat of reprisal
or force or promise of benefit ." At the same time, Seglik
solicited grievances and stated to her captive -audience
employees that if the Union came in she would not be
able to give bonuses, a clear promise of benefit,' ° and
that communications would break down and she would
not be available to meet and take care of adverse work-
ing conditions in the future, an implied promise of bene-
fits by correction."
Regarding Seglik's failure to respond to the complaints
of nurses about minimal benefits and holidays, no prom-
ises can be implied from her silent smile, and no unfair
labor practice arose from it.
B. Seglik's Statements Through Harold Love
Love was hired during 1983 as a nurse . In February or
March he was made "afternoon supervisor ," in which he
assumed "total responsibility of the building ," advising,
staffing, and disciplining the nurses, nurses aids, and or-
derlies. In late April or the beginning of May, when the
current DON was employed , Love was removed from
the position of afternoon supervisor and made "patient
care in service coordinator ," as previously described.
Love had no authority to hire, fire, or discipline employ-
ees, those being functions of the DON and/or Seglik. At
the end of November this position was eliminated and
Love was returned to nursing duties.
After the compulsory nurses' meeting of 12 November
a group of nurses went to Love's office , where he told
them12 Seglik had told him that if the nurses thought
they had it easy that they had "another think coming"
because she would make it "tough" for them and see that
no union came in, and would not allow a union to tell
her what she could do . Seglik denied that she had made
any such statement . About the week of 19 November,
Love told nurses that Seglik proposed to change his
status as supervisor, but not his salary, so that he could
vote "for her" in the representation election, and that if
9 Fairleigh Dickinson University, 264 NLRB 725 (1982); Waco, Inc., 273
NLRB 746 (1985).
10 Gayston Corp., 265 NLRB 1 (1982); Metro Center, 267 NLRB 288
(1983).
11 Windsor Industries, 265 NLRB 1009 (1982), as distinguished from
Mariposa Press, 273 NLRB 528 (1984), in which it was found that there
was no implied promise to , as here, "take care of" complaints.
12 Love was not called as a witness by either party . Decision was re-
served and a continuing objection was noted in all testimony regarding
Love's statements on the grounds of hearsay.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not vote against the Union his job was in jeop-
ardy. Seglik denied making any of the statements alleged.
Discussion
Love was clearly never a supervisor within the mean-
ing of Section 2(11) of the Act. It is also true that Love
had been a supervisory employee in terms of directing
nurses in the performance of their duties, and at the time
of his statements he was still in a position superior to
that of the other nurses . The other nurses therefore
could and properly did not consider Love to be an agent
of Respondent . Seglik denied that Love was authorized
to make statements on behalf of Respondent , but Section
2(13) of the Act provides that such argument is not pre-
vailing.
Seglik also denied that she had made the alleged state-
ments to Love . Because Love did not testify in person,
Seglik's denial is uncontroverted . t 3 However , self-serv-
ing statements of an employer or of an employee are not
to be accepted merely because they are uncontradicted,
when the record as a whole casts doubt on those state-
ments.' 4
In view of the fording above that Seglik engaged in
the unfair labor practices of interfering with, restraining,
or coercing employees in the free exercise of their rights
by telling them that selection of a union was not neces-
sary, soliciting grievances , threatening that bonuses
would be lost if the Union were elected and impliedly
promising that working conditions would improve if it
were not, I find a clear union animus on the part of Re-
spondent . As I observed it, Seglik's entire testimony was
too self-serving, always showing that her intentions were
virtuous, and that it was others who misinterpreted her
meaning . I find, in short, that Seglik did tell Love, and
further through Love as an agent did tell the other
nurses, that she would not let a union get in and would
make difficulties for employees voting for a union to the
point of discharging them . Each of such statements con-
stitutes a separate unfair labor practice.
C. Mass Discharges
On 26 and 27 November, immediately prior to the rep-
resentation election of 30 November , Seglik discharged
12 of the 21 nurses . Those discharged were the least
senior, as can be seen from the lists previously set forth.
Respondent presented testimony that the discharges
were solely the result of economic necessity . Abramson,
as accountant for the facility prior to as well as after its
sale to Seglik , testified that the facility, had since bank-
ruptcy, been operating marginally financially and that he
was constantly reviewing costs with Seglik, urging her
to reduce expenses in all categories . When Seglik pur-
chased the facility, in addition to being required to meet
the monthly payments established by the bankruptcy
court, Seglik would have to borrow about $170,000 in
13 Testimony by the nurses of what Love said he had been told by
Seglik is hearsay evidence, admissible only as proof that Love made the
statements to the nurses , and not as proof that the statements were true.
14 Aero Corp., 237 NLRB 455 fn. 1 (1978), citing NLRB v. Walton, 396
U.S. 404, 408 (1962); and NLRB P. Howell Chevrolet Co, 204 F.2d 79, 86
(9th Cir. 1953), affd. 346 U.S. 482.
receivables from the seller , to be repaid at the rate of
$10,000 per month . Abramson testified that he advised
Seglik not to go forward with the purchase on these
terms, but she did and was later required to borrow an
additional $435,000 to meet current obligations. At the
time of the purchase, according to Abramson, current
expenses exceeded current income by $12,000 per month.
During 1984 and 1985 Seglik reduced the number of
employees in the maintenance and the housekeeping de-
partments , then merged them , and then did away with
them completely, contracting the work out at a cost,
whether additional or at a saving , not reported. One
part-time office worker was also discharged . Abramson
testified that after the purchase he specifically advised
Seglik to review nursing costs and to reduce them if pos-
sible.
No nurses aides or orderlies were discharged. One
part-time office worker was discharged.
Only one employee was hired after the nurses were
discharged . The daughter of a friend , this individual,
named Max , was a licensed practical nurse but for per-
sonal reasons was not working . Max became an unpaid
"volunteer," cleaning up the office paperwork in January
1985. After about 10 days she had finished that assign-
ment, and was sent by Seglik to the DON to assist there
with accumulated paperwork prepared by aides and or-
derlies, but which required review and signature by a
nurse . Max was proficient at her work, and at some time
not indicated in the record asked for and was given an
unspecified hourly wage rate . Max would occasionally
"pass medicine" or perform other nursing functions, but
does not work full shifts as a nurse.
During November , at the economic low point of the
facility and in the face of the specific advice to reduce
nursing costs, Seglik directed the DON to select two
nurses and make them supervisors, for duties and at a
salary to be determined later by Seglik.15
During this same period Seglik felt it necessary to re-
furbish her office at a cost of $ 1500, and to increase her
salary by $5000 per year. A more luxurious model car
was leased for Seglik 's use, but she testified that it cost
no more than the cars previously leased . Christmas bo-
nuses of $50 to $100 were paid to employees in Decem-
ber.
Discussion
After the mass discharges of 26 and 27 November, a
total of 9 full- and part-time nurses fulfilled the state min-
imum requirement of one nurse for each of two floors,
on three shifts per day, 7 days per week . In order to staff
the facility with one extra nurse per shift, on only two
shifts per day, a total of 12 additional nurses had been
employed on full- or part-time status. The mass dis-
15 Nurses Brown and Hooper, the two most active union supporters,
were interviewed by the DON. The nurses testified that the DON stated
that Seglik had specified that she wanted Brown and Hooper to be the
ones given supervisory status, which Seglik denies. The dispute is moot
because the offers were not alleged as unfair labor practices , but proven
merely to show that at the time Seghk in fact had no desire or intent to
reduce nursing expenses and in fact recognized a need to increase nursing
costa
AMERICARE CONVALESCENT CENTER
charges of 26 and 27 November thus effectuated a 25-
percent reduction in function and expenses, while reduc-
ing the staff by 59 percent.
These discharges are alleged as violations of Section
8(aXl) and (3) of the Act, and the Wright Line method of
analysis clearly applies.16 In the typical case, counsel for
General Counsel must demonstrate that the Employer
was aware of prounion sentiments or acts of the individ-
ual employees discharged, and inferentially that all
prounion employees were discriminated against . Counsel
for General Counsel can, however, proceed on the
theory that the Employer ordered general layoffs for the
purpose of discouraging union activity even if not all
prounion employees are directly affected.17 "[G]eneral
retaliation by an employer against the workforce can dis-
courage the exercise of section 7 rights just as effectively
as adverse action taken against only known union sup-
porters." 18
I consider that counsel for the General Counsel has
met his burden in proving a prima facie case. Respondent
began hiring additional nurses on 11 April, and hired a
total of 15 of them between then and 27 October in the
face of what Abramson testified was a continuing series
of warnings to reduce costs. After Seglik's purchase of
the facility in mid-October, despite such alleged warn-
ings, Seglik increased her own salary, refurbished her
office, and paid Christmas bonuses. Either the alleged
advice was not given, or was knowingly disregarded by
Seglik . The only logical reason for the mass discharges is
the implementation of the threats made by Seglik direct-
ly to the nurses, and to and through Love, in order to
impose a chilling effect on work unit members about to
vote on union representation. The chilling effect of the
discharges was of course supplemented by Seglik's im-
plied promise of corrective changes in work conditions
and threat not to pay bonuses if the employees voted for
union representation.
Having had a prima facie case presented against it, it
became the burden of Respondent to show, by a prepon-
derance of the evidence, that the employees would have
been laid off even if they were not about to engage in
the protected activity of voting in the representation
election. This it attempted to do by showing an econom-
ic basis for the discharges. I do not credit that such con-
ditions existed. As pointed out above, Seglik had been
hiring additional nurses between April and the end of
October; she incurred other, avoidable business expenses;
she was eventually required to hire another nurse to ac-
complish required paper work. Allegedly losing over
$12,000 per month while over its head in debt, Respond-
ent somehow survived the 5 months prior to hearing.19
On the basis of the above, and of the previously dis-
cussed union animus, I find that the 15 discharges consti-
tuted violations of Section 8(a)(1) of the Act, as well as
discriminations in the hire or tenure of employment of
1e Wright Line, 251 NLRB 1083 (1980), NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
17 Birch Run Welding v. NLRB, 761 F.2d 1175, 1179-1180 (6th Cu
1985).
is Birch Run Welding Y. NLRB, supra at 1180.
19 If Respondent is sufficiently by viable to file exceptions , it might be
noted that it has miraculously survived a further period
1211
these employees in violation of Section 8(a)(3) of the
Act.
CONCLUSIONS OF LAW
1. Respondent Shore Pointe Associates, Inc., d/b/a
Americare Convalescent Center is an employer engaged
in commerce within the meaning of the Act.
2. By soliciting grievances, by threatening employees,
and by making promises to employees, the Respondent
has violated Section 8(a)(1) of the Act.
3. By discriminatorily discharging employees Hooper
and Bey on 26 November 1984 and employees Thomp-
son, Evans, Killough, Garrett, Smith, Scott, Gilliard,
Curry, Schaffner, and Williams on 27 November 1984, in
order to impose a chilling effect on employees about to
vote in a representation election, the Respondent has vio-
lated Section 8(a)(1) and (3) of the Act.
4. These violations constitute unfair labor practices
that affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent, having discriminatorily discharged 15 em-
ployees must offer them reinstatement and make them
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from the date of discharge to
the date of proper offer of reinstatement, less any net in-
terim earnings as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Shore Pointe Associates, Inc., d/b/a
Americare Convalescent Center, Detroit, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting the Michigan Health Care
Associates, District 1199M, National Union of Health
Care Employees, AFL-CIO, or any other union.
(b) Soliciting grievances from, threatening, or promis-
ing benefits to any employee to affect their union sup-
port or activities.
(c) 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.
S0 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
Board and all objections to them shall be deemed waived for all pur-
poses.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Thelma Hooper, Vickie Bey, Stephanie
Thompson , Fred Evans , Margaret Killough, Patricia
Garrett, Charles Smith , Carolyn Scott, April Rae Gil-
liard , Vilna Curry, Francine Schaffner , and Gloria Wil-
liams immediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of
the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Detroit, Michigan, copies of
the attached notice marked "Appendix."21 Copies of the
notice , on forms provided by the Regional Director for
Region 7, after being signed by the Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
a' 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."