Ascot Nursing Centre

National Labor Relations Board - Board Decisions

Feb 21, 1975

216 N.L.R.B. 680 (N.L.R.B. 1975)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dan Lipman, Norman Ruttenberg, and Abe Goldstein,
a Partnership, d/b/a Ascot Nursing Centre and
Local 222, United Nursing Home and Hospital
Employees' Federation and National Union of
Hospital and Health Care Employees /RWDSU,
AFL-CIO and Betty Zollicoffer and National
Union of Hospital and Health Care Employees,
RWDSU, AFL-CIO. Cases 30-CA-2590, 30-
CA-2611, and 30-CA-2634
February 21, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On October 10, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, both Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order as modified herein.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) of the Act by
discharging seven employees who were engaged in
protected concerted activities in connection with a
walkout by Respondent's third-shift employees. We
affirm this finding. We disagree, however, with the
Administrative Law Judge's failure to find violations
of Section 8(a)(1) with respect to the termination of
Cora Reed's employment and the interrogation of
Father Stehlik, and a violation of Section 8(a)(3) and
(1) in the discharge of Patricia Bounds.
Cora Reed's Termination
Cora Reed was a third-shift nurses aide who had
not worked the night of the walkout. According to
her testimony, which was credited by the Adminis-
trative Law Judge, the nursing director called her the
following morning, and told her that "the third shift
girls walked out" and "I want you to know that they
were fired because they walked out." She then
inquired whether Reed was coming in to work that
night. Reed "told her no, because I was part of the
third shift." Upon further inquiry as to her reasons,
Reed referred to the cut in compensable hours and
extra work-the two matters which had precipitated
216 NLRB No. 123
the dispute and walkout the previous night. Upon
being asked again whether she was coming in to
work, she "said no. You can put on my paper I quit,
or either I'm fired." According to Respondent's
records, Reed "terminated herself effective immedi-
ately" and her termination notice is checked in both
"quit" and "discharged" squares. The notice also
indicated she was not eligible for rehire. Later in the
day she received a telegram from Respondent stating
her resignation had been accepted and that she
should "not appear on these premises." The Admin-
istrative Law Judge concluded that Reed was not
discharged, but voluntarily resigned because she did
not like the working conditions.
A more realistic appraisal of the Reed termination
appears to be that she had the same grievances as the
third-shift nurses , made common cause with them by
joining in their walkout, and was willing to suffer the
consequences of termination by refusing to return to
work. It must be remembered that the nursing
director began her telephone conversation with Reed
by advising her that the third-shift aides had walked
out and were fired as a result. Reed's response was
that she would not come in to work because she "was
part of the third shift." Clearly, then, she was joining
the third-shift aides in the walkout with the under-
standing that this meant she would be discharged.
Her further explanation, upon being pressed, was to
recite the grievances that occasioned the walkout
thus further identifying herself with the third-shift
aides. In the circumstances, her statement that her
records could reflect that "I quit, or either I'm fired"
was nothing more than an expression of willingness
to accept the consequence of discharge, along with
the other third-shift aides, for joining the walkout.
The nursing director's introductory statement made
clear to Reed that her refusal to work would result in
her discharge. Thus, she was confronted with the
choice of being discharged or breaking ranks with
the protected concerted activity of the third-shift
aides. Her determination not to break ranks, of
which she advised the nursing director, meant that
she was fired. Her statement accepting this result did
not convert her discharge into a resignation. This
interpretation is fortified by the notations in Re-
spondent's records that she was discharged as well as
that she quit, and that she was not eligible for rehire,
and the further direction that she not appear on
Respondent's premises. The circumstances warrant
and indeed compel the conclusion that she was
discharged in violation of Section 8(a)(1) and should
be treated in the same manner as the other third-shift
aides with whom she made common cause . Even if
her conduct were to be construed as a resignation,
the further indication in her termination notice that
she was discharged and that she was not eligible for
ASCOT NURSING CENTRE
rehire, together with the telegraphic instruction that
she "not appear on these premises ," in themselves
constitute discriminatory action in violation of
Section 8(a)(1) for having engaged in protected
concerted activity.
Father Stehlik's Interrogation
Although the complaint was amended to allege a
violation of Section 8(a)(1) by interrogating an
employee concerning union sympathies, the Admin-
istrative Law Judge appears to discuss the question-
ing of Father Stehlik by supervisory employees not as
a separate violation but only as evidence of union
animus in connection with the discharge of employee
Patricia Bounds. He found Father Stehlik's testimo-
ny insufficient to provide proof of animus as to
Bounds and also, possibly as a disposition of the
claimed 8(a)(1) violation, "that Respondent did not
coercively interrogate Fr. Stehlik." 1
A day or two after the walkout of the third-shift
aides Father Stehlik was interviewed as a possible
replacement nurses aide by the administrator, the
director of nurses, and the assistant director. He was
hired a few days later. He had been told about the
walkout, which the assistant director of nurses
attributed to "a Union coming into the place." In an
initial interview with the administrator, he was asked
what he thought of unions. After giving an equivocal
response, the administrator told Father Stehlik that
he didn't like unions. In an interview which followed,
the director and assistant director of nurses also
asked him his feelings about unions.
Against the background of the recent work
stoppage which the supervisory employees attributed
to the Union and the discharge only a day or so
earlier of a number of employees for protected,
concerted activity and of a union steward because of
a belief that she influenced the walkout, the interro-
gation of a prospective employee by Respondent's
three top supervisors concerning his attitude toward
unions and the expression of dislike for unions by the
administrator can only be regarded as coercive, and
therefore violative of Section 8(a)(1).2
The Discharge of Patricia Bounds
Patricia Bounds, an aide on the second shift, was
discharged on February 17, purportedly for having
the previous day threatened Administrator Burns'
son, who was also an employee. The Administrative
I The Administrative Law Judge made his finding on the basis of
accepting Father Stehlik's testimony without consideration of the differing
version of Respondent's supervisory employees . In general, he did not credit
the testimony of the supervisory employees which conflicted with that of the
employees who were antagonists in the dispute. Father Stehlik was not
involved in the dispute and was hired as a replacement after the walkout. In
the circumstances , we deem it appropriate to credit his testimony
681
Law Judge found that Bounds did not threaten
Burns' son in any way, noted that Burns made no
effort to investigate the incident, did not accept
Burns' claim that he believed a threat had been
made, rejected Respondent's claimed reason for the
discharge as pretextual, and stated that he did not
know why Respondent discharged Bounds. He held,
nevertheless, that the record did not support a
finding of an 8(a)(3) violation because the General
Counsel had not established affirmatively that she
had been discharged for union or other protected
activities.
Where no real attempt is made to investigate the
alleged ground for a discharge and the reason given
for the discharge is false, there is basis for an
inference that there was an unlawful motive for the
discharge which the employer desired to conceal, at
least where the surrounding circumstances tend to
reinforce that inference. Shattuck Denn Mining
Corporation v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9,
1966); Reidbord Bros. Co., 189 NLRB 158, 170
(1971). The surrounding circumstances in the present
case provide substantial support for the inference
that Bounds was discharged for her union activity.
Animus toward protected concerted action and
unions is evidenced by Respondent's unlawful
discharge of the third-shift aides, the unlawful
discharge of Union Steward Betty Zollicoffer, the
unlawful interrogation of a prospective employee
concerning his attitude toward unions, and Adminis-
trator Burns' statement that he did not like unions.
Patricia Bounds was closely identified with the
union endeavors. She questioned Burns on January
10 as to his reasons for firing Union Steward Betty
Zollicoffer and with respect to other employee
grievances. She was also very active in the apparently
successful election campaign for the merger of Local
222 with the National Union of Hospital and Health
Care Employees. In this connection she solicited
Kevin Burns, son of the administrator, to support the
merger. The merger election was held on February
12, and was supported by Bounds because she
believed it would result in more effective collective
bargaining.
In light of the background of unfair labor practices
by Respondent and Bounds' prominent role in union
affairs, the pretextual reason for her discharge
warrants the inference, which we make, that she was
fired in violation of Section 8(a)(3).3
2 Ohio Hoist Manufacturing Co, 188 NLRB 902 (1971).
3 For the reasons fully set forth in the Administrative Law Judge's
Decision , Member Kennedy agrees with the Administrative Law Judge that
the General Counsel has not established that Patricia Bounds was
discharged in violation of Sec. 8(a)(3) of the Act. Accordingly , Member
Kennedy would adopt the Administrative Law Judge's recommended
dismissal of the complaint allegations as to Patricia Bounds.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amended Conclusions of Law
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
"3. By discharging Hosea Simmons , Billie Thom-
as, Ella Jordan, Gladys Peeler, Joan Holifield, Mary
Perkins, Cora Reed, and Betty Zollicoffer, Respond-
ent has violated Section 8(a)(1) of the Act; and by
subsequently discharging Patricia Bounds , Respond-
ent has violated Section 8(a)(3) and (1) of the Act."
Add the following, renumbering the present Con-
clusion of Law 4 as 5:
"4. By interrogating Father Edward Stehlik con-
cerning his attitude toward unions , Respondent has
violated Section 8(a)(1) of the Act."
WE WILL NOT discharge employees in reprisal
for union or other protected concerted activities
including the presentation of grievances or
lawfully striking in support thereof.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under the Act.
DAN LIPMAN, NORMAN
RUTTENBERG AND ABE
GOLDSTEIN, A
PARTNERSHIP, D/B/A
ASCOT NURSING CENTRE
DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Dan Lipman , Norman Ruttenberg and Abe Gold-
stein , a Partnership , d/b/a Ascot Nursing Centre,
Milwaukee , Wisconsin , its officers , agents , succes-
sors , and assigns , shall take the action set forth in the
said recommended Order , as so modified:
1. Add as paragraph 1(b) the following , reletter-
ing the present paragraph (b) as (c):
"(b) Interrogating applicants or employees con-
cerning their attitudes toward unions."
2. Add to the names listed in paragraph 2(a) the
names of Cora Reed and Patricia Bounds.
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
WE WILL reinstate the following named em-
ployees to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions,
and make them whole for earnings lost since their
discharges:
Hosea Simmons Joan Holifield
Billie Thomas Mary, Perkins
Ella Jordan Betty Zollicoffer
Gladys Peeler Cora Reed
Patricia Bounds
WE WILL NOT interrogate applicants or employ-
ees concerning their attitudes toward unions.
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge: Hearing in
this matter was held on April 30 - May 2, 1974, upon a
complaint issued by the General Counsel on March 29,
1974, and Respondent 's amended answer.
Upon the entire record in this case , including my
observation of the demeanor of witnesses and upon
consideration of briefs and supplemental memoranda, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent partnership operates a nursing care facility
in Milwaukee , Wisconsin , and I find, as all parties agree,
that Respondent is engaged in commerce within Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 222, United Nursing Home and Hospital Employ-
ees' Federation (herein called Local 222) and National
Union of Hospital and Health Care Employees/RWDSU,
AFL-CIO (herein called Hospital Employees), are labor
organizations within Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
All dates herein are in 1974 unless otherwise indicated.
The complaint, as amended at the hearing, alleges that
Respondent discharged nine nurses aides (eight on January
10 and one on February 17) and also constructively
discharged one of these nine , "all because of their
membership in and activities on behalf of Local 222
and/or Hospital Employees and/or because of their
protected concerted activities ." The principal questions in
most of these cases are whether the aides quit or were
discharged for walking out concertedly and, if the latter,
whether the walkout was protected concerted activity in
the circumstances hereinafter discussed.
Respondent purchased and assumed effective control of
the subject nursing facility on January 1, 1974. It renamed
the facility Ascot Nursing Centre and also took over the
personnel of its predecessor . Respondent's management
ASCOT NURSING CENTRE
team includes Administrator Donald Burns, Director of
Nursing Sandra Chmielewski, and Assistant Director of
Nurses Marsha Schmidt.
Ascot is a three-shift operation with some 70 employees
in all departments , including registered and practical
nurses and nurses aides; at relevant times it had approxi-
mately 120 patients, at least half being bed patients.
Local 222, United Nursing Home and Hospital Employ-
ees' Federation, was certified by the Board on October 30,
1973, upon an election in an appropriate bargaining unit
which included nurses aides then employed by Respond-
ent's predecessor . Local 222 did not adopt a contract with
Respondent's predecessor. Respondent recognized Local
222 in December 1973 and Administrator Burns thereafter
had several conversations with Local 222 Representative
Kenneth Islo and Local 222 Steward Betty Zollicoffer,
during which they discussed matters relating to wages,
hours and working conditions. Among the matters dis-
cussed was a proposal by Burns to shorten the work shifts
from 8-1/2 hours to 8 hours, including an unpaid lunch
period of 1/2 hour, with an accompanying increase in the
hourly wage rate . This increase would raise the hourly rate
to compensate the employees for the cut in hours and
would in effect also raise their weekly gross pay by 8 or 9
cents an hour. Islo accepted Burns' proposal , subject to the
aides' approval.
On January 2 and 3, Burns held afternoon meetings open
to aides on all shifts, but which - because of the timing of
the meetings - were attended by first-and second-shift
employees and not by third-shift personnel. Burns ex-
plained, and aides of the first two shifts approved, the
proposed changes. Although the third-shift aides had
requested that Burns meet with them , no such meeting was
scheduled and Burns never did discuss the changes or
other related matters with them before the events under
consideration here.
The mentioned changes were implemented retroactively
to January 1; and when third-shift nurses aides reported for
work shortly before their 11 p.m. starting time on January
9 they noticed for the first time that their time cards
credited them with only 7.5 hours of work instead of 8
hours which they had actually worked. While the record
establishes that Respondent did not intend to "short-
change" the employees, the record does show that the
employees believed this to be the case. This resulted from
the mentioned lack of communication respecting the wage
hour changes as well as confusion in processing employee
records , a situation which extended even beyond the
January 10 walkout herein. In any event, the third-shift
aides were much upset when they saw their time cards on
January 9.
Further upsetting the aides when they reported for work
on January 9 (Wednesday) was the fact, in addition to
other matters , that third-shift aides Hosea Simmons and
Billie Thomas found warning slips stating they would be
terminated if they refused to sterilize bedpans in an
autoclaving device. The previous night Simmons and
Thomas had been instructed to sterilize a large number of
stacked bedpans through use of an autoclaver. They
refused on the grounds , which I credit, that they did not
know how to use that equipment and had never been
683
instructed in its use, an excuse which their immediate
supervisor, Nurse Rogers, fully accepted at the time.
Although Nursing Director Chmielewski testified that one
or some of the third-shift aides had been taught to operate
this machine, such function had not previously been
performed on the shift, and Chmielewski was unable to say
definitely that either Simmons, Thomas, or even Nurse
Rogers had ever been taught how to operate the machine.
The third-shift aides upon reporting for work on January
thus were upset and concerned about being "cheated on
their paychecks," according to Schmidt's own testimony,
and by the warnings given Simmons and Thomas; the
aides discussed the situation and decided to request an
immediate meeting with Bums concerning these and other
employment problems. They meanwhile did not go about
their regular duties, and they registered their complaints
with nurses Calvin and Rogers (whom the parties stipulat-
ed were statutory supervisors). Calvin notified Assistant
Director Schmidt by telephone that the aides were not
working and were upset about certain grievances and
wanted to meet with Burns "right away ." Burns was at his
own residence at the time, a block or two away. Bums and
Schmidt discussed the matter and decided it would be a
bad managerial decision to grant the aides' request for an
immediate meeting, and Bums and Schmidt decided
instead to hold such meeting at 6 a.m. (Thursday). The
aides were advised accordingly. Meanwhile, the second
shift ended and the second-shift aides left the Centre, and
there were further phone calls and discussions. In the
words of third-shift aide Joan Holifield, "All in all it was
total chaos . Everybody was very upset." Although Re-
spondent claims that the aides had agreed to wait until 6
a.m. to meet with Burns and even though Bums might have
been informed to such effect by his subordinate supervi-
sors, the record does not establish any understanding
between the aides and management that the aides would
remain and perform their normal duties and wait until 6
a.m. to meet with Bums.
Rebuffed in their repeated efforts for 1-1/2 hours to have
Bums meet with them "immediately" to discuss their
grievances, the third-shift aides walked out at 12:30 a.m.
(January 10). No aide said a word 'at the time about
quitting permanently or to indicate that their walkout was
anything other than a protest over grievances and
Respondent's refusal to meet with them at once. Upon
being advised of the walkout, Bums and his son (also
employed by Respondent) and Chmielewski and Schmidt
shortly went to the Centre to replace the third-shift aides.
Joan Holifield, one of the third-shift aides who punched
in on January 9, had not been scheduled to work that
night, although she had worked on Wednesday night as a
rule, and regularly had Tuesday nights off, as she did on
January 8. She was not aware of this change in schedule
until after she checked in on January 9 and the commotion
developed. After one of the supervisors noticed she was
unscheduled, Holifield offered to leave, but waited at the
request of the other aides so that she might give them a ride
home, which she did after the walkout. She apparently
clocked out with the other aides at 12: 30 a.m.
Holifield then called Betty Zollicoffer, a second-shift
aide and a union steward, telling her what happened. At
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 1:30 a.m. on January 10 Zollicoffer phoned
the Centre , and told Bums that the second -shift aides also
might walk out unless he would meet with them to discuss
various described grievances . This was the only conversa-
tion Bums had with any of the aides that entire evening.
Thursday morning (January 10), Chmielewski called
Joan Holifield , the third-shift aide who had been present at
the walkout but had not been scheduled to work.
Chmielewski at the time was unaware that Holifield had
punched in and left with the other aides the night before,
and asked if Holifield would report to work that evening.
Holifield said this was doubtful, because her daughter was
hospitalized with a difficult pregnancy and she wanted to
be with her daughter at the hospital . But she would call if it
became possible for her to work , Holifield promised.
Neither Holifield nor Chmielewski gave any indication in
this conversation that Holifield had quit or been otherwise
terminated from her job . That evening , in fact, Holifield
had a friend notify Respondent of her inability to work
that night because of her daughter 's condition.
Chmielewski also received a call that morning from
Hosea Simmons, whom Chmielewski had tried to call
shortly after the walkout and who was returning that call.
Chmielewski inquired why Simmons had walked out and
told Simmons that she was terminated. Simmons respond-
ed, "You didn 't terminate me, I terminated myself," and
the call ended . (Simmons credibly testified that she did not
quit.)
By this time the decision had clearly been made to
terminate those aides who had walked out. About 11 a.m.
that morning Bums instructed that termination notices be
prepared, and the following telegram was accordingly sent
to third-shift aides Hosea Simmons , Billie Thomas, Ella
Jordan , Gladys Peeler, Joan Holifield , and Mary Perkins.
Your employment . . . has been terminated. Final
pay has been mailed to your home . Do not appear on
these premises.
A similar telegram was also sent to , but apparently not
received by, second-shift aide Betty Zollicoffer . Zollicoffer
thus reported for work a few hours later on her regular shift
on January 10, at which time Burns orally discharged her.
Second-shift employees witnessed the discharge of Union
Steward Zollicoffer and were upset by such action. They
discussed walking out in protest of their steward's
discharge,' but Zollicoffer told them not to do so and they
did not . Later that day, second-shift aide Pat Bounds and
another aide pressed Bums on his reason for discharging
Zollicoffer, and he replied that it was for influencing the
third-shift walkout . Respondent's subsequent discharge of
Bounds is discussed hereinafter.
A. Discharge or Quit?
Respondent claims that the third -shift aides quit work
individually and not concertedly and that its discharge of
the aides "was simply confirming the fact that they had all
quit by walking off the job" (Reap. br.). Such claim strains
credulity in the circumstances of this case 1, and in my
opinion warrants no further discussion , except to reject it. I
accordingly find that Respondent discharged the third-
shift aides because of their concerted walkout . While it is
not entirely clear that Holifield joined the walkout or that
she merely waited to drive other employees home after a
supervisor had told her she was not scheduled to work that
night ,- her case is essentially no different from the discharge
of the other third-shift aides and Burns testified that
Respondent treated her as if she had walked out.
Respondent's own records thus show that Respondent
discharged her for "verbally expressing complaints about
pay, job responsibilities, etc. Walked off the job . . . 12:30
a.m." - substantially the same purported reasons con-
tained in Respondent 's records for discharging the other
aides.
B. Was the Walkout Protected Concerted Activity?
Respondent's principal defense is that , even assuming
Respondent discharged the third -shift aides for a concerted
walkout, the discharges are not violative of the Act because
the attendant circumstances were purportedly such as to
remove the walkout from the protection of the Act.
Respondent relies, in this connection , on the fact that only
two LPN's were alone on duty to take care of 120 patients
when the aides walked out, that the aides left the facility at
night without reasonable notice to enable Respondent to
care for the patients, that the aides - before leaving that
night - "acted in a loud, argumentative fashion which
resulted in chaos and confusion," and that two supervisors
resigned because of the aides ' actions and a third became
ill. All of this s, contends Respondent, "clearly endangered
the health and safety of the patients."
The General Counsel urges in reply that the record is
bereft - and it is - of any showing that ill effects were in
fact visited upon any patients because of the walkout. The
General Counsel further asserts that supervisory personnel
were available and did come to the Centre to tend the
patients' needs when the aides left, and that the principal, if
not only,. actual detriment was inconvenience caused to
management rather than to patients ; and the General
Counsel , in effect, also asserts that Respondent itself could
have averted the walkout by granting the aides' request for
an immediate meeting rather than put off such meeting
until 6 a.m. It is relevant, in this connection, that
Respondent had not explained the wage-hour changes to
the third-shift employees despite their earlier requests for a
discussion with Burns and that such changes were among
their principal concerns in seeking an immediate meeting
that night. It is noted , moreover, that the employees in
question are low paid , unsophisticated individuals who
were upset because they believed they were being "c-
heated" and all they were seeking was a prompt meeting
with their employer to discuss grievances . It should be
mentioned in fairness to Respondent , that Respondent had
recently taken over the facility, and was at the time
undergoing licensure inspection by the State, all at a time
Indeed , in its opening statement, for example, Respondent listed 2 Respondent also claims , but without trustworthy record support, that
various purported reasons for discharging these employees , and its own unidentified aides made threats to personal safety and property.
internal records establish the fact of discharge.
ASCOT NURSING CENTRE 685
when it was attempting to establish its own management
procedures in a newly acquired facility.
Concerted activity, including a work stoppage, is
protected under the Act where employees pursue genuine
grievances whether or not the grievances be "soundly
based." The Masonic and Eastern Star Home of the District
of Columbia, 206 NLRB 789 (1973). And the Board applies
or has applied the same standard of conduct to nursing
homes as it does to other employers engaged in other
businesses (ibid). "We are aware that the resort to collective
action by the ["nurses aides , orderlies and housekeeping"]
employees . . . exerts unusual pressure because of the need
for the employer's customers or clients to have uninterrupt-
ed service. However, protection of the Act will not be
denied merely because someone not directly affected by
the controversy might consider the work stoppage to be ill-
timed, unreasonable or showing poor judgment" or
because concerted activities in nursing homes "might
`disturb' the patients" (ibid).
In recent amendments to the Act, effective August 25,
1974, -Public Law 93-360 generally makes it an unfair labor
practice for a union to strike a "health care institution"
without giving 10 days notice and also provides that
employees lose their employee status for engaging in a
strike absent such notice . "It is in the public interest to
insure the continuity of health care to the community and
the care and well being of patients by providing for a
statutory advance notice of any anticipated strike or
picketing" and the "10-day notice [in amended Section 8(g)
of the Act] is intended to give health care institutions
sufficient advance notice of a strike . . . to permit them to
make arrangement for the continuity of patient care." S.
Rep. No. 93-766, 93d Cong., 2d Sess. 4 (1974).
Referring to this new Section 8(g), Respondent urges that
such amendment merely articulates preexisting standards
applicable 'to health care institutions and that the walkout
is unprotected in the present case because of the employ-
ees' peremptory conduct in that connection . The General
Counsel , on the other hand, contends that Section 8(g)
involves new proscriptions heretofore not part of our
jurisprudence and that, as new statutory requirements, they
may not be applied retroactively.
The Masonic and Eastern Star Home case supports the
General Counsel 's views respecting preexisting standards.
The new amendments , therefore, do modify existing law in
the above-mentioned respects and thus may not be given
retroactive effect . Viewing the fact and circumstances of
this case within the principles of Masonic and Eastern Star
Home, supra, and cases cited therein, I conclude that the
aides, by presenting common grievances and walking out
concertedly, were engaged in protected concerted activity
within Section 7 of the Act and that Respondent violated
Section 8(axl) by discharging the aides3 for such activity.
Cf. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 14-
16 (1962); N.L.R.B. v. Pioneer Plastics Corp., 379 F.2d. 301,
307 (C.A. 1, 1967); N.LRB. v. Trumbull Asphalt Company
of Delaware, 327 F.2d, 841, 843 (C.A. 8, 1964); Electromec
Design and Development Co., Inc. v. N.LRB., 409 F.2d.
631, 634 (C.A. 9, 1969); Salt River Valley Water Users'
Association v. N.LR.B., 206 F.2d 235, 329 (C.A. 9, 1953).
Respondent claims that it discharged Zollicoffer for the
same reasons associated with its action in discharging the
third-shift aides. Bums testified that he believed Zollicoffer
was "aligned with and part of [the walkout]" and he told
Respondent bookkeeper Sandy Caravella that he was
terminating Zollicoffer for influencing the third-shift
walkout and for threatening a walkout by the second shift
concerning grievances . Zollicoffer, the shop steward, did
not participate in or encourage the walkout in any respect,
nor is her aforementioned call to Burns a • threat of
unlawful concerted action. The call itself is within the
ambit of protected activities. As Respondent's discharge of
the third-shift aides was unlawful, its discharge of
Zollicoffer was at least equally so. Respondent, by
discharging union steward Zollicoffer, violated Section
8(a)(1) of the Act.
C. Cora Reed's Separation
About 10 a.m. Thursday morning (January 10), Nursing
Director Chmielewski called Cora Reed, a third-shift aide
who had not reported for work on Wednesday. Reed
credibly testified as follows concerning this conversation:
"She [Chmielewski] asked me if I heard what
happened the night before. And, I asked her what
happened. And, she said, apparently, you don't know.
And, I asked her again, what happened. She say, the
third shift girls walked out last night. And, I says, why.
And, she says, I don't quite know. But, I want you to
know that they were fired because they walked out.
And then, she asked me if I was coming in that night.
And I told her no, because I was part of the third shift.
And, then, she asked me why. I says, because I had
worked some eight hour days and only got seven and a
half hours for them. Plus, they had a lot of extra work
there for us to do. And, then, she asked me, if my hours
were straightened out, would I come in. And, I told her,
no. And, she says , why. I said, well, I wasn't making
nothing as it was. And, since they had cut it down to
seven and a half hours, I wasn't making enough to
come over there for. And, then, she asked me, was I
coming. I said no . You can put on my paper I quit, or
either I'm fired. And, she says, okay, and she hung up.
Respondent's records state that Reed "terminated herself
effective immediately," and her termination notice is
checked in both "quit" and "discharged" squares, and the
notice also indicates that she was not eligible for rehire.
Later in the day of her conversation with Chmielewski,
Reed received a telegram from Respondent stating that her
resignation had been accepted and that she should "not
appear on these premises."
The General Counsel contends that Reed's separation
was violative of the Act, and he urges various theories in
such connection . The General Counsel thus claims
alternatively, inter alia, that Reed was actually discharged
for making common cause with the discharged aides who
had walked out and constructively discharged as well. As I
see her case, Reed advised Respondent that she was no
longer an employee of Respondent and that she didn't care
3 Simmons , Thomas, Jordan, Peeler, Holil'ield, and Perkins.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Respondent called it a quit or a discharge. She
advised Respondent, in effect, that she was severing her
employment because she didn't like the working conditions
and not because Respondent induced her to quit by
making her employment intolerable for union or other
protected reasons. This is neither a discharge nor a
constructive discharge, and I shall recommend dismissing
the complaint as to Reed.
D. Discharge of Patricia Bounds
Patricia Bounds, an aide on the second shift, was
discharged on February 17, purportedly for threatening
another employee the previous day. The supposedly
threatened employee was Kevin Bums, the 17-year-old son
of Administrator Bums. The General Counsel alleges that
the real reason for Bound's discharge was her prominence
in challenging Respondent concerning Zollicoffer's dis-
charge, in pressing other grievances, and her active role in
a campaign to have Local 222 merge with Hospital
Employees. A merger election was held on February 12
and the merger resolution apparently prevailed.
Bounds and another employee, as indicated above, did
question a reluctant Bums on January 10 concerning the
reasons for Zollicoffer's discharge and in discussing
various employee grievances with Bums that same day.
And the record also establishes that Bounds did take an
active role in the union-merger campaign. Burns denied
any knowledge of Bounds' activity in that campaign and
the record does not permit the inference that he had such
knowledge.
Burns testified that he discharged Bounds on the basis of
a report to him by his son, Kevin, that Bounds had
threatened Kevin on February 16, and he sent the
discharge notice without even discussing the matter with
Bounds . Bounds was a completely credible witness and she
denied making the threat. Bounds and another credible
corroborating witness explained the innocent context of
the allegedly threatening remark , and Respondent called
neither Kevin nor any other witness to establish Kevin's
alleged hearsay report to his father, and I find that Bounds
did not threaten Kevin in any respect. As indicated above,
Bums discharged Bounds without even discussing the
matter with Bounds or any other individual present at the
incident and he testified that he relied entirely on his son's
version of the matter . Burns did not investigate the matter
even after Bounds denied to him that she had threatened
his son.
Considering the circumstances of the discharge, I have
difficulty accepting Bum's claim that he himself believed
Bounds to have made the threat as purportedly reported to
him by Kevin. However, that does not answer the question
here. One may speculate, for example, that familial
considerations may have entered into the situation whether
or not one accepts Bum's testimony that Kevin did make
the report to his father. To find an unlawful discharge of
Bounds it is not enough that I reject Respondent's claimed
reason as pretextual . For the General Counsel still must
make a preponderant showing that Respondent discharged
Bounds for impermissible reasons.
The difficulty in this matter is an absence of a showing of
animus toward Bounds for union or other protected
reasons. Respondent did discharge the strikers, but, so far
as the record establishes, that was in reprisal for strike
activities and not for conventional union reasons. Bounds
did press Bums concerning the Zollicoffer discharge and
related matters, but that was more than a month earlier
and there is no independent showing in the record of
Respondent animosity toward Bounds in such connection.
Bounds was active in the union merger movement, and
even assuming, arguendo only, that Bums knew of such
activity, the record is barren - or practically so - of any
showing that Burns was opposed to the merger.
The only evidentiary item adduced in this connection is
the testimony of Fr. Edward Stehlik who applied for an
aides job a day or two after the January 10 walkout and
who was hired a few days later. Fr. Stehlik testified in
relevant part as follows concerning a job interview with
Bums:
A. Well, I had to go through an explanation of
what Old Catholic was. And he asked me why a priest
wanted to get into nursing. And, I told him of my
experience that I had worked as an orderly at another
nursing home . And, he also had mentioned the fact that
they were rehiring employees for the third shift,
because of a walkout that had taken place. And that
there were Union negotiations going on right now, or at
that time . And, I asked him if it was like an open or
closed shop. And, he said, well, you know, you didn't
have to join the Union, at that time, if you didn't want
to. And then, he asked me what I thought of Unions.
And, I said that I was a professional person all my life,
and it didn't make any difference one way or another.
Unions could be good or bad, you know. Depending on
the situation. And then, he said he didn't like Unions.
That was the gist of of the conversation. And then, I
went and saw the director of nurses and the assistant
director.
Q. And, where did you see them?
A. In their office up on the first floor. When it was
on first floor.
Q. And, what, if anything, was said?
A. They discussed also that they were rehiring
employees for the third shift. And, that they were -
would strongly consider me for the job of orderly. And
let me think now. They mentioned the walkout. And, I
asked, just briefly, what the walkout was about. And, I
believe Marsha Schmidt said it had to do with a Union
coming into the place. And then, they asked me my
feelings about the Union. And, I said relatively the
same thing that I had said to Mr. Burns.
Even accepting Fr. Stehlik's testimony without consider-
ation of Respondent witnesses' differing version of the
interview, I find it insufficient, either separately or in
combination with all other evidentiary matters urged by
the General Counsel, to supply the needed proof of animus
as to Bounds to establish that Respondent discharged
Bounds for union or other protected considerations. I do
not know why Respondent discharged Bounds, but I do
conclude that the record does not satisfy the statutory
requirements of proof to sustain a violation respecting her
discharge . Considering the entire tenor and context of the
ASCOT NURSING CENTRE 687
Fr. Stehlik testimony, I also find that Respondent did not
coercively interrogate Fr. Stehlik.
CONCLUSIONS OF LAW
1. Respondent partnership, doing business as Ascot
Nursing Centre, is an employer within Section 2(6) and (7)
of the Act.
2. Local 222 and Hospital Employees are labor
organizations within Section 2(5) of the Act.
3. By discharging Hosea Simmons, Billie Thomas, Ella
Jordan, Gladys Peeler, Joan Holifield, Mary Perkins, and
Betty Zollicoffer, Respondent has violated Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies and purposes of
the Act. Among other things, the recommended Order
shall require Respondent to reinstate and make whole the
below-named employees in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings, and the entire record and
pursuant to Section 10(c) of the Act, I issue the following
recommended:
ORDER4
Respondent, Dan Lipman, Norman Ruttenberg and Abe
Goldstein, a partnership, d/b/a Ascot Nursing Centre,
Milwaukee, Wisconsin, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees for engaging in union or other protected
concerted activities, including but not limited to presenting
a In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
grievances and engaging in a strike or work stoppage in
support of grievances.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer to the following named employees immediate
and full reinstatement to their former jobs or, if these jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay that
they may have suffered by reason of the discrimination
against them, in the manner set forth in the section of this
Decision entitled the "Remedy":
Hosea Simmons Joan Holifield
Billie Thomas Mary Perkins
Ella Jordan Betty Zollicoffer
Gladys Peeler
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze the amount
of backpay due under the terms of this Order.
(c) Post at Respondent's Ascot Nursing Centre, Milwau-
kee, Wisconsin, copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms provided by
the Regional Director for Region 30, after being duly
signed by Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily placed.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
over by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Insofar as the complaint alleges matters not found herein
to have violated the Act, the complaint is hereby dismissed.
S In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court Appeals Enforcing an Order of
the National Relations Board "