Ashville-Whitney Nursing Home

National Labor Relations Board - Board Decisions

Jan 29, 1971

188 N.L.R.B. 235 (N.L.R.B. 1971)

ASHVILLE-WHITNEY NURSING HOME
Ashville-Whitney Nursing Home and Jim H . Pierce,
Lessee and Retail, Wholesale & Department Store
Union, AFL-CIO. Case 10-CA-8200
January 29, 1971
DECISION AND ORDER
By MEMBERS FANNING , BROWN , AND JENKINS
On August 20, 1970, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices alleged
in the complaint and recommending that they take
certain affirmative action as set forth in the attached
Trial Examiner's Decision. Thereafter the Respon-
dents filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case , and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner with the following addition.
Respondents urge dismissal of this case primarily
on the grounds that Clark, the owner of the nursing
home, was never served with the charge, and that
Pierce, the lessee, was not served within 6 months of
the alleged unfair labor practice, all of which contra-
vene Section 10(b) of the Act.'
In support of their contentions, Respondents argue
that Pierce was not the agent of Clark at the time the
charge was served, because there had been a change
in ownership of the nursing home which terminated
whatever agency relationship might otherwise have
existed between Clark and Pierce. The seriousness of
these allegations, raised for the first time before the
Board., cannot be questioned. Having duly examined
the record, however, the Board finds these exceptions
to be without merit.
The Union filed its charge against Respondent,
Ashville-Whitney Nursing Home, Mr. E. L. Clark,
owner. Mr. Jim Pierce, administrator, on March 5,
1970, alleging violations of Section 8(a)(1) and (3) of
the Act on and after September 21, 1969. Since the
10(b) period for this charge would not expire until on
or about March 22, 1970, the charge was timely filed.
The charge was served on Ashville-Whitney Nursing
Home and received by Jim Pierce on March 6, 1970.
235
Resondents contend that this service was defective as
to Clark, since ownership of the nursing home was
transferred to Pierce by way of a lease agreement
dated January 1, 1970.
The evidence reveals that although the lease agree-
ment was purportedly executed on January 1, 1970, it
was not filed with the Alabama Bureau of Licensure
and Certification until May 11, 1970, when the nurs-
ing home license was changed from Clark to Pierce.
Until May 11, 1970, the application on file with the
Bureau named Clark as owner of the establishment
with Pierce as the administrator. Under these circum-
stances we hold that for the purposes of service Clark
held Pierce out to be his apparent agent until May 11,
1970, so that the charge filed on March 5, 1970, and
received by Pierce on March 6, 1970, constituted valid
service on Clark.
In view of our holding, the amendment to the
charge naming Pierce as lessee-owner -operator, made
at the hearing without objection by Respondents'
counsel, conforms to Section 102.17 of the Board's
Rules and Regulations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
Respondents E. L. Clark, owner, Jim H. Pierce, lessee
of the Ashville-Whitney Nursing Home, their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Or-
der.
' Section 10(b) provides that " . no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of
the charge with the Board and the service of a copy thereof upon the person
against whom such charge is made .11
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN , Trial Examiner : Upon charges filed on
March 5 and June 9 , 1970, by Retail, Wholesale & Depart-
ment Store Union, AFL-CIO , herein called the Union, the
General Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 10 (Atlanta, Geor-
gia), issued a complaint , dated June 10, 1970 , against Ash-
ville-Whitney Nursing Home' and Jim H. Pierce, Lessee,
herein called the Respondent . With respect to the unfair
labor practices , the complaint as amended alleges, in sub-
stance , and Respondents duly filed answer denies, that
Respondent violated Section 8(a)(1) and (3) of the Act by
refusing to employ 17 named employees.
This case was tried before me at Ashville , Alabama, on
1 As amended at the instant teal without objection.
188 NLRB No. 31
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 7, 1970. All parties were given full opportunity to par-
ticlpate in said trial and to file briefs. pore reasons herei-
nafter indicated , I find that Respondent violated Section
8(aXl) and (3)•of the Act.
Upon the entire record in the case 2 and from my observa-
tion of the witnesses while testifying under oath , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
In September 1969, Ashville-Whitney Nursing Home was
a sole proprietorship of E. L. Clark, an individual, with his
place of business located at Ashville, Alabama, where he
was engaged in the business of operating a proprietary nurs-
ing home and related facilities providing skilled nursing
health care and convalescent services . Respondent Jim H.
Pierce was the administrator of the nursing home for Mr.
Clark. On January 1, 1970, Mr. Pierce leased the building
and equipment from Mr. Clark and since that time has been
the lessee-operator of the Ashville-Whitney Nursing Home.
Mrs. Pierce became acting administrator until May 11,
1970, when she became the administrator.
Ashville-Whitney Nursing Home began operating on
September 22, 1969. The revenue received from the nursing
home from that date through June 1970, was approximately
$84,000 to $93,000. Projecting the monthly receipts for the
balance of the period to September 22, 1970, the revenue
received from the nursing home will clearly be in excess of
$100,000. Moreover, as of the time of the instant trial, the
monthly revenue was well over $10,000. Purchases of sup-
plies have been made from Ipco of Atlanta, Georgia, in the
following amounts: the first month approximately $200; the
second month , approximately $400; and then an automatic
shipment of approximately $90 to $100 each month.
As it is clear from the above-admitted facts that the reve-
nue received from the Ashville-Whitney Nursing Home ex-
ceeds $ 100,000 per year and that the amount of interstate
purchases is more than de minimus, I find that Respondents
are en a ed in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Board's standards for assert-
Ingtj3
jurisdiction over proprietary nursing homes have been
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's counsel admitted at
the instant trial, and I find, that Retail, Wholesale & De-
partment Store Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
Prior to September 1969, Mid-South Convalescent and
Medicare Centers, Inc., herein called Mid-South, was oper-
ating the facility at Ashville, Alabama, under the name of
Whitney Nursing Homes . In early 1969 the Union began to
organize-the nursing home employees and in February re-
quested Mid-South to recognize it as exclusive bargaining
agent. When Mid-South refused, the employees struck and
2 I hereby note and correct the following obvious inadvertent error in the
typewritten transcript of the testimony On p. 80, 1. 17, the word " list" is
Mid-South hired replacements . The strike was later settled
by an informal Board settlement whereby Mid-South reins-
tated the strikers with backpay . However , it also retained
the replacements , thereby creating a situation where there
were more employees than were needed . In the later part of
August 1969 , Mid-South ceased operating at the Ashville
facility and removed its patients . On September 22, 1969,
the Ashville-Whitney Nursing Home began operating as a
separate entity from Mid-South and with an entirely new
work force . Mr. Pierce was the administrator of the nursing
home for Respondent , Mr. Clark , the owner-operator at
that time . Although the 13 employees who had struck and
4 nonstrikers who became union members after the strike all
applied for employment with the Respondent , none admit-
tedly were hired by Mr. Pierce who had decided not to
employ anyone who had worked for Mid -South.
The principal issue litigated in this trial is whether the
failure to hire these 17 employees was due to their union and
concerted activities in violation of Section 8(aXl) and (3) of
the Act, as alleged in the complaint . There are also the usual
credibility issues.
B. The Facts
Mrs. Elizabeth Egger was employed as a licensed practi-
cal nurse at the Mid-South Nursing Home until it ceased to
operate on August 27, 1969. While so employed she was
chairman of the group that was organizing the employees
for the Union. She and 13 of the alleged discrimmatees
participated in the 1969 strike and returned to work after its
settlement . Thereafter, the remaining four alleged discrimi-
natees , who were strike replacements , became union mem-
bers during the first part of August and attended union
meetings.
About August 15, 1969, Mr. Pierce, at the instructions of
owner-operator Clark, moved his trailer onto the premises
of, or near, the Whitney Nursin^ Home. Pierce had been
instructed by Clark to go there ' for the purpose of taking
over the nursing home for him" when the time came to take
it over. Pierce posted signs seeking aersonnelplications for employ-
ment to be filed with the p in the trailer. At that
time, Pierce expected to be either the administrator or the
assistant administrator when Mr. Clark took over the nurs.
ing home.
About the same time Pierce had a discussion with Mrs.
Egger at the home of Mrs. Gail Hunter. Pierce was explain-
in how he expected to run the nursing home which Mr.
Clark was taking over. He stated that Mrs. Hunter, a reg-
istered nurse , would be the director of nurses , ans asked if
Egger would work for him. She answered that she would.
On Thursday, August 21, 1969, Mrs. Audrey Hopper
came to Mrs. Egger's home, stated that she was the assistant
administrator of-the Sand Mountain Nursing Home at that
time and was helping Mr. Clark in opening the Ashville-
Whitney Nursing ome,4 and asked if Egger would give her
a list of he employees who were in the union group to sign
employment applications because they were unable to get
any applications and they had to have these applications by
the end of the week . Egger repled that she could not give her
the list without first checking with Union Representative
Taylor. Hopper asked Egger to try to contact Taylor and to
meet her at the trailer about 4 p.m. The trailer was the home
of Mr. and Mrs. Pierce and was located on or near the
premises of the Whitney Nursing Home, as above men-
tioned. Egger rephed that she would be at the trailer to talk
to her and Mr. Pierce.
corrected to read " letter." s Mrs. Hopper was also the fiance of Mr Clark at that time and had
3 University Nursing Home, Inc., 168 NLRB No. 53. become Mrs . Clark by the time of the instant trial.
ASHVILLE-WHITNEY NURSING HOME
Egger went to the trailer about 4 p.m. Mr . and Mrs . Pierce
and Hopper were present . Both Hopper and Mr . Pierce told
Egger that they were in desparate need of applicants' names
to submit to the State in order to fill out their application
for a license to run the nursing home . Mr. Pierce added that
he had been unable to get anyone to sign any applications.
Egger told Pierce that she could not give him a list of names
or any applications until she had talked with the union
representative or unless they had a meeting with the union
representative . Hopper asked her to contact the union rep-
resentatives that afternoon for a meeting.
Mrs. Egger telephone Union Representative Taylor at the
union hall in Gadsden , Alambama , and informed him that
Mr. and Mrs . Pierce and Mrs . Hopper wanted to have a
meeting about hiring the employees then workin g at Mid-
South . Taylor and International Representative Daniel im-
mediately drove to the trailer that same afternoon. Also
present were Egger , Mr. and Mrs . Pierce and Hopper.
After the introductions were made , Mr. Pierce explained
to the union representatives that the reason he needed the
list of names of qualified applicants was in order to get the
State license for the nursing home . They replied that they
felt that could be arranged but they wanted assurance that
their people would be hired . Daniel requested that they
recognize the Union as the bargaining agent . Mr. Pierce and
Mrs. Hopper- stated they did not want to recognize the
Union without an election . Daniel then stated that he would
have to check with the Union's attorney before he could
give them a list of their people.
The union representatives and Mrs . Egger thereupon left
the trailer . After a telephone call had been made to the
Union 's attorney , they returned to the trailer . Daniel told
Pierce and Hopper that they could give them a list of the
names of their people upon the assurance that they would
be hired . Pierce stated that he greatly appreciated getting
such a list because he needed it before the weekend and that
he needed the applications as soon as possible . Both Pierce
and Hopper gave their assurance that the employees on the
list would be hired . To show their good faith and trust, the
union representatives agreed not to accept a proffered letter
giving such assurance.
Daniel then asked Mrs. Egger to write down the names
of the union employees , as she was familiar with the unit.
Egger did so and handed the list to Mrs. Hopper . The list
contains the names of the 17 alleged discriminatees named
in the complaint . Eger and Discriminatee Robert Thomas
filled out an application at that time in the trailer and turned
them over to Hopper who , in turn , gave Egger additional
applications for the other employees on the list. Mrs. Egger
took the applications back to the nursing home and passed
them out to the other employees whose names were on the
list. All but four employees returned their signed applica-
tions to Mrs. Egger who , in turn , delivered them to Mr.
Pierce the following Monday night at his trailer . The re-
maining four employees also returned their signed applica-
tions to Pierce.
As administrator of the Ashville -Whitney Nursing Home
for Mr . Clark, Mr. Pierce did the luring of all personnel. He
began operating the nursing home on September 22, 1969,
with anentirely new work force and admittedly did not hire
anyone on the list submitted by the Union. He testified that
the real reason why he wanted the list of names from the
Union was to find out who the union employees were.
Katherine Woods , an employee of the Mid-South Nurs-
ing Home , had participated in the 1969 strike and was a
union member from the beginning of its organization. Her
name appeared on the list submitted by the Union. She
signed an employment application for Mrs . Egger and this
237
application was in the group which Mrs. Egger had returned
to Mr. Pierce about August 25. About 2 weeks later, after
Mid-South had ceased operating, she saw Pierce in the yard
at his trailer and asked if he needed any nurses aides . Pierce
first inquired if she had worked for Mid-South. When she
replied in the affirmative, he stated that he would not hire
"any of the girls that worked for Mid-South because of their
union activities," adding that he had already hired his
staff.'
C. Contentions and Conclusions
In his opening statement at the instant trial , the General
Counsel contended that in refusing to employ the 17 dis-
criminatees , Pierce was discriminatorily motivated because
of their union membership and strike activity while em-
ployed at Mid-South Nursing Home . On the other hand,
Respondent 's counsel contended in his opening statement
that most of the alleged discriminatees had never filed any
applications for employment with Ashville -Whitney Nurs-
ing Home . When asked by the Trial Examiner what his
position was with respect to those who had filed applica-
tions , he replied , "our position is that we dust, at that time,
we didn't want to employ them." When further pressed by
the Trial Examiner as to the reason for not wanting them,
Respondent 's counsel stated , "well, we had other competent
help, other applicants ." In response to the Trial Examiner's
further query as to why others were selected in preference
to the discriminatees, counsel stated , "because we felt they
were better qualified , I'm sure."
Obviously, there is no merit to the defenses recited by
Respondent 's counsel in his opening statement. As previ-
ously found , all 17 discriminatees had signed employment
applications which were delivered to Pierce in the ratter part
of August . Not one scintilla of evidence was adduced to
support the contention that others were hired because "we
felt they were better qualified." On the contrary , the testi-
mony of Jim Pierce, Respondent 's only witness , not only
refutes this contention but shifts to a still different defense.
When called as a witness by the General Counsel under
Rule 43(b) of the Federal Rules of Civil Procedure , Pierce
testified that he "told a little white lie" when he had in-
formed Mrs. Egger that he needed the applications from her
people in order to get his license and promised to hire the
applicants. When asked by the General Counsel for the
reason why he wanted the names , Pierce testified, "I refuse
to answer on the Fifth Amendment ." Upon being directed
by the Trial Examiner to answer , Pierce testified that it was
because he "just wanted to see who was on the list." He then
admitted that the decision whom to hire was left up to him
after filing the application for the State license to operate
the Ashville-Whitney Nursing Home but before its opening
and that he did not hire anyone from the list or the applica-
tions submitted by Mrs . Egger. He first gave as his reason
for not doing so `because I didn't want to." When pressed
by the General Counsel to explain why he felt it necessary
to he to Mrs. Egger about hiring these employees and need-
ing their applications, he testified that he wanted to find out
5 The findings in this section are based on admissions of Mr . Pierce and
the credited testimony of Mrs. Egger, Daniel , Taylor, and Katherine Woods.
Although sitting at counsel tabel throughout the trial , Mrs. Pierce was not
called as a witness . Nor were Mrs. Hopper or Mr. Clark called as witnesses
or any claim made of their unavailability. To the extent that Pierce 's testimo-
ny differs from that set forth in the text , I do not credit him. Pierce impressed
me very unfavorably. He displayed a poor memory when it suited his pur-
pose, was vague and evasive at times, admitted that he had hed to Mrs Egger
concerning the purpose of the list of names, and generally impressed me as
an unreliable and untrustworthy witness.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who was employed at the nursing home, that there were two
sets of employees there, that one set was union and one set
was nonunion and that he had to decide whether "to hire
all union, all nonunion or part union or part nonunion."
Later on in his testimony he further explained that he want-
ed the list of union employees so that when he made his
decision whether to hire union or nonunion employees, he
would know which was which. He further testified that his
final decision was not to hire anyone who had been em-
ployed at the Mid-South Nursing Home.
When called as a witness by Respondent at the time of
the presentation of its case, Pierce first testified that until
January 1, 1970, when he was the administrator for Respon-
dent Clark, his policy had been not to hire anyone who had
been "associated with the Mid-South Nursing Home until
they got the chip off their shoulder and came in as a human
being and applied for a job and be interviewed." He again
testified that the real reason he wanted the list of union
people from Mrs. Eger and their applications was so that
`I'd know who was o the union, and who was not union,"
and that he finally decided to start with a new staff and not
to hire anyone, union or nonunion, "associated" with the
Mid-South Nursing Home "because of the misuse of the
union people" and the hard feelings engendered thereby. He
answered in the affirmative in response to the leading ques-
tion of Respondent's counsel that his hiring policy was
based "on formal application and personal interview, " and
testified that none of the discruninatees had come in for
interviews. However, he admitted that he never called any
of them in for interviews and reiterated on cross-examina-
tion that at that time he would not in any event have hired
anyone who was "associated" with the Mid-South Nursing
Home, thereby automatically waiving the asserted require-
ment for an interview.
The names of all 17 discriminatees appeared on the union
list submitted to Pierce on August 21, 1969, by Mrs. Egger
and their applications were delivered to Pierce shortly there-
after, as ppreviously found. All were employees of Mid-South
NursingbIome. Thirteen of these discri ninatees participat-
ed in the 1969 strike at that Nursing Home and were reins-
tated after its settlement. The remaining four were strike
replacements who joined the Union and became active un-
ion adherents after the strike. Pierce found out from the
above-mentioned list and applications submitted to him
that all 17 were union members who were employed at the
Mid-South Nursing Home. He admitted that that was his
real reason for asking for the list and that he "lied" to Mrs.
Egger in order to get it. He then admittedly deliberately
refused to employ any of them.
Upon consideration of all the foregoing in the light of the
entire record as a whole, I am convinced and find that in
refusing to hire these employees Pierce was discriminatorily
motivated because of the 1969 union and concerted activi-
ties engaged in by employees of the Mid-South Nursing
Home. Not only may this conclusion reasonably be inferred
from Pierce's testimony but it is rendered crystal clear from
his statement to Discriminatee Katherine Woods, a few
weeks after the applications of the discriminatees had been
submitted, that he would not hire "any of the girls that
worked for Mid-South because of their union activities," as
previously found. His additional decision also not to hire
any of the nonunion employees of Mid-South, I further
find, was but a byproduct of his discriminatory motivation,
above-mentioned, and also served as a tactic designed to
conceal such discrimination 6
6 Moreover, there is no showing that any of the nonunion employees either
desired to , or applied for, work at the Ashville-Whitney Nursing Home
I find that by Pierce's conduct in discriminatorily refusing
to employ the 17 discriminatees, Respondent E. L. Clark,
the then owner-operator of the Ashville-Whitney Nursing
Home for which Pierce was then the administrator, discrim-
inated with respect to their hire and tenure of employment,
thereby discoura g membership in the Union, in violation
of Section 8(axl)and (3) of the Act. I further find, as is
self-evident from the record, that on and after January 1,
1970, Respondent Jim H. Pierce, as the lessee-operator of
the Ashville-Whitney Nursing Home, was a successor fof
Respondent E. L. Clark.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section III, above,
occurring in connection with the operations of Respondents
as described in Section I, above , have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By the refusal to employ the 17 named discriminatees
under the circumstances previously described, Respondent
E. L. Clark has discriminated with respect to their hire and
tenure of employment, thereby discouraging membership in
the Union, and has thereby engaged in unfair labor prac-
tices within the meaning of Section 8(aX3) of the Act.
2. By the foregoing conduct , Respondent E. L. Clark has
also interfered with, restrained , and coerced his employees
in the exercise of their statutory rights guaranteed by Sec-
tion 7 of the Act and thereby has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair laborpractices affecting commerce within the meaning of Section2(6) and (7) of the Act.
THE REMEDY
I have found that Respondent E. L. Clark violated Sec-
tion 8(axl) and (3) of the Act by the conduct of his adminis-
trator, Respondent James H. Pierce, in discriminatorily
refusing to employ the 17 discriminatees. Clark operated the
Ashville-Whitney Nursing Home from September 22, 1969,
to January 1, 1970, when the premises were leased to Pierce
who then became the lessee-operator. I will therefore re-
commend that Respondent Clark make the 17 discrimina-
tees whole for any loss of earnings they may have suffered
as a result of the discrimination, by payment to each of a
sum of money equal to that which each normally would
have earned as wages from September 22, 1969, to January
1, 1970, less net earnings during such period, with backpay
and interest thereon to be computed in the manner de-
scribed by the Board in F. W. Woolworth Co., 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
I have also found that Respondent James H. Pierce oper-
ated the Ashville-Whitney Nursing Home on and after Jan-
uary 1, 1970, as the successor of Respondent Clark. As
Pierce was the person who committed the unfair labor prac-
tices while serving as administrator for Clark, the logic of
the Board's Perma Vinyl? decision makes Pierce a successor
7Prrma Vinyl Corporation, Dade Plastics Co. and United Stater Pipe and
Foundry Company, 164 NLRB 968, enfd. sub nom. United States Pipe and
Foundry Company, v. N.LR B, 398 F .2d 544 (C.A. 5).
ASHVILLE-WHITNEY NURSING HOME
liable to remedy the unfair labor practices of the predeces-
sor in order to effectuate the policies of the Act. I will
therefore recommend that Respondent Pierce offer the 17
discriminatees immediate and full reinstatement to the jobs
they would have occupied absent the discriminatory reflusal
to employ them or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to any seniori
ty rights or privileges, and make each whole for any loss of
earnings each may have suffered as a result of the discrim-
ination, by payment to each of a sum of money equal to that
which each normally would have earned as wages from
September 22, 1969, to the date of Respondent Pierce's offer
of reinstatement, less net earnings during such period, with
backpay and interest thereon to be computed in the manner
described in the preceding paragraph. Respondent Pierce's
liability for backpay and interest from September 22, 1969,
to January 1, 1970, shall be joint and several with that of
Respondent Clark.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
A. Respondent E. L. Clark, his agents, and assigns, shall:
1. Make whole the 17 discriminatees listed in Appendix
A, attached hereto, in the manner set forth in the Remedy
section of this Decision, for any loss of earnings each mad
have suffered from September 22, 1969 to January 1, 1970,
as a result of the discrimination against them.
2. Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary for
determining the amount of backpay due under the terms of
this Decision.
3. Notify the Regional Director for Region 10, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.8
B. Respondent James H. Pierce, lessee-operator of the
Ashville-Whitney Nursing Home, Ashville, Alabama, his
agents , successors and assigns, shall:
1. Offer the 17 discriminatees listed in the attached Ap-
pendix A, immediate and full reinstatement to the jobs they
would have occupied absent the discrimination against
them or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to any seniority rights or
privileges, and make them whole, in the manner set forth in
the Remedy section of this Decision, for any loss of earnings
each may have suffered from September 22, 1969 to the date
of Respondent's offer of reinstatement, as a result of the
discrimination against them.
2. Notify the above-stated 17 discriminatees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement, upon ap lication, in accordance
with the Selective Service Act andpthe Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
3. Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Recommended Order.
4. Post at the Ashville-Whitney Nursing Home in Ash-
ville, Alabama, copies of the attached notice marked "Ap-
pendix B."9 Copies of said notice, on forms provided by the
Regional Director for Region 10 (Atlanta, Georgia), after
239
being duly signed by Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt thereof,
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.
5. Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.1°
8 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify the Regional Director for Re-
gion 10, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
9 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, recommendations , and Recommended Order herein shall, as
provided in 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 . In the event that the Board's
Order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted By Order Of The National Labor Rela-
tions Board" 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."
10 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX A
1. Kathryn Nelson
2. Gertrude Roden
3 Katherine Woods
4. Flora Nelson
5. Carrie Woods
6. Helen Atkins
7. Willie Mae Baker
8. Mae Ruth Woods
9. Betty Cook
10. Lillie Whisenant
11. Yvonne Bothwell
12. Jodie Osborn
13. Mable Washburn
14. Mary Mostella
15. Robert Thomas
16. Willie J. Thomas
17. Ruth Cash
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B WE WILL notify the above-named employees, if
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer the following immediate and full
reinstatement to the jobs they would have occupied
absent the discrimination against them or, if thoseJobs
no longer exist, to substantially equivalent positions,
without prejudice to any seniority rights or privileges,
and WE wILL make up to them the pay they lost, with
6-percent interest:
1. Kathryn Nelson
2. Gertrude Roden
3. Katherine Woods
4. Flora Nelson
5. Carrie Woods
6. Helen Atkins
7. Willie Mae Baker
8. Mae Ruth Woods
9. Betty Cook
10. Lillie Whisenant
11. Yvonne Bothwell
12. Jodie Osborn
13. Mable Washburn
14. Mary Mostella
15. Robert Thomas
16. Willie J. Thomas
17. Ruth Cash
presently serving in the Armed Forces of the United
Mrates, of their reemployment,rights upon application,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
ASHVILLE -WHITNEY NURSING HOME
(Employer)
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 compliance with
its pnovisions, may be directed to the Board's Office,
Peachtree Building, Room 701, 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308 , Telephone 404-526-5760.