Autumn Leaf Lodge

National Labor Relations Board - Board Decisions

Oct 8, 1971

193 N.L.R.B. 638 (N.L.R.B. 1971)

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Living Centers , Inc., d/b/a Autumn Leaf
Lodge and Service Employees International Union,
AFL-CIO. Case l6-CA-4206
October 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 9, 1971, Trial Examiner Phil Saunders
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in other unfair labor
practices as alleged in the complaint and recommend-
ed that those allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations I of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, National Living Centers, Inc., d/b/a
Autumn Leaf Lodge, Hurst, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
I In the absence of exceptions , we adopt, pro forma, the Trial
Examiner 's 8(a)(1) findings and recommendations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner: This proceeding, heard
at Fort Worth, Texas, on April 1 and 2, 1971,1 pursuant to
I All dates herein refer to the year 1970 unless otherwise stated
2 All credibility resolutions made herein based on a composite
an original charge filed on December 7 and a complaint
issued February 5, 1971, presents questions as to whether
Autumn Leaf Lodge, herein called the Respondent or
Company, engaged in various acts of interference , restraint,
or coercion, and whether the Respondent discriminatonly
discharged Pauline Monkers on September 16.
Upon the entire record in the case and from my
observation of the witnesses, I hereby make the following: 2
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation and is engaged in
managing and operating convalescent homes and nursing
homes in Texas, Louisiana, and Indiana, including a
nursing home located in Hurst, Texas, which is the only
nursing home involved in this proceeding.
During the preceding 12 months the Respondent, in the
course and conduct of its business operations , performed
services the gross value of which exceeded $100,000, and
during the same period performed services valued in excess
of $100,000 at points located outside the State of Texas.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union , AFL-CIO,
herein the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent' s nursing home has approximately 33
rooms constructed in a T-shape design with two wings. It
employs between 38 and 42 employees covering three shifts
and the nursing home has a total of 78 beds. The
Respondent employs one RN-the director of nurses-and
four LVNs. The day and night shifts have one LVN each
while the afternoon shift has two. The chief or head
administrator at the home is Zana Mae Davis, and she
stated that her secretary, Phyliss Massey, was "second in
command." Other than Davis the only other admitted
supervisor is the director of nursing.
The Respondent acquired ownership of the home in June
and in early August Administrator Davis informed
employees that there would be a reduction from an 8 hour
day to 7-1/2 hours a day effective on or about August 15.
The complaint alleges that Nancy Moody is a supervisor
and the Respondent denies the allegation. This issue
becomes important to the General Counsel in attributing
union knowledge to the Respondent prior to the discharge
here in question . Moody testified that as an LVN she was a
supervisor on the 11 to 7 night shift and stated she was in
charge of the "complete building," and that she checked
each patient and assigned duties to the three or four nurses
aides on her shift . Moody also testified she worked as night
supervisor both before and after Davis took over, and
stated that after Davis took over as administrator she had
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
193 NLRB No. 89
AUTUMN LEAF LODGE 639
effectively recommended that Thelma Parks be fired for
failure to report to work. It appears that Ann Carter was
also included in this recommendation, but had quit before
any action was taken. Moody said the nurses aides would
inquire of her where they were to work on particular nights
and she would then distribute the work to them. She further
testified that when she first went to the home there was no
organization in the assignment of janitorial duties and as a
result she "broke these duties down and assigned different
nights to do different things" with the approval of the
director of nurses
The General Counsel also introduced testimony through
Moneta Rowell to the effect that Moody was the night
supervisor who told others what to do when instructions
were needed, and that on occasions when employees had to
leave early or for some reasons were late in reporting for
work, they had "to clear" with Moody. Thelma Coffin
testified that in August she felt the work was getting too
much for her and Monkers so she went to Moody to get
help as Moody was the night nurse in charge and her
supervisor Darlene Lane, the Respondent's Director of
Nurses during the period in question, testified that Nancy
Moody was the LVN in charge of the night shift.3
Section 2(11) of the Act defines a supervisor as:
.. . any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action,
if in connection with the foregoing the exercise of such
authority is not a merely routine or clerical nature, but
requires the use of independent judgment. [Emphasis
supplied.]
Moody is the only LVN working the night shift, and is
clearly responsible for seeing that the work on this shift is
performed as required. As pointed out, if Moody is not a
supervisor then one must conclude that the entire nursing
home and its many patients are left without any direct
supervision during the night hours, and this is not the case.
Moody assigns certain duties to the three or four nurses
aides on her shift, and checks the patients rendering the
services an LVN is capable of giving. She has the authority
to, and does, grant time off, and she also effectively
recommends discharges and transfers to other shifts This
record further reveals that Respondent's employees consid-
er Moody as their supervisor and their beliefs have been
reinforced by the activities of Respondent. Moreover, when
all the above circumstances are construed in the light of
Moody's position as the sole LVN in the entire home
during the night shift, such circumstances are clearly
calculated and designed to impress employees with the fact
that Moody is their boss, and has power to back her
instructions through the exercise of supervisory authority.
On the basis of the discretionary duties, responsibilities,
and authority noted above, I find that Moody is a
supervisor within the meaning of the Act.
Pauline Monkers was employed by the Respondent in the
latter part of April and had continuous employment until
her discharge on September 16. She was first employed as a
nurses aide on the day shift and remained there for several
weeks, but because of convenience to her was then
transferred to the 11-7 shift. Her hourly pay was $1.48.
It appears that sometime during the middle of August,
the employees received their paychecks reflecting less
wages than previous checks due to their reduction of hours
from an 8-hour day to a 7-1/2-hour day, as aforestated.
Monkers stated that as a result the employees were
disappointed, and she then started asking each employee on
the night shift their thoughts in regards to organizing a
union. Monkers also inquired of Supervisor Moody as to
what she thought about a union. Monkers further told the
employees on the night shift that she had a brother-in-law
who was a representative for a labor organization and he
could help them organize. Monkers stated she then
discussed this matter with her brother-in-law and he told
her to "scout around" and see who was interested in a
union. Monkers also testified she was in the process of
getting a union meeting set up but those plans were
frustrated by her discharge.
Monkers left work on September 13 or 14 and by her
schedule had 2 days off, but when she reported back for
work on September 16 her timecard had been pulled and
another aide informed Monkers of her termination.
Monkers then called Davis and told her she did not
understand why she had been fired, and Davis replied it
was due to her work. Monkers testified that no one had
given her any warning whatsoever nor had anyone ever
criticized her work.
The General Counsel produced testimony through the
former director of nurses, Darlene Lane, to the effect that
Monkers was a dependable nurses aide, that she was always
present or available for work, that she was well groomed
and neat, and that she treated patients well. Lane testified
she had discussed Monkers' work with Supervisor Nancy
Moody and by so doing had ascertained that her work was
also satisfactory on the night shift. However, Lane
indicated that Davis had told her several times of her
intentions to discharge Monkers because she was talking
"religion" and "politics" and she was only waiting for a
replacement before doing so. Subsequently, Lane agreed to
be the one to inform Monkers of her discharge as her
replacement was then available, but during the interval
shortly prior to September 16, Lane resigned from her
employment at the home.
Nurses aide Olla Mae Clifton stated that during breaks
Monkers did not converse at any greater duration than the
others, but ventured that Monkers never mentioned the
Union to her. Moneta Rowell corroborated for the General
Counsel the fact that she and others also heard of union
organization during the middle of August when salary
checks were cut due to the reduction in hours. Rowell
further indicated that the employees on the II to 7 shift
thereafter conversed almost every night about the Union,
stated that Monkers mentioned she had a brother-in-law
who worked with a labor organization and that she would
contact him, and further testified that Night Supervisor
Moody was present during these union discussions. Katy
a Davis stated that while she is not present at night (nor is the director received calls when decisions had to be made including relayed messages
of nurses ) the work of an administrator is a 24-hour job and that she from employees unable to report for work.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ratliff classified Monkers as "average" when she first
worked on the 7 to 3 shift
Turning now to witnesses and testimony produced by the
Respondent in relation to the discharge here in question.
Administrator Davis testified she had received many
complaints on Monkers , and on one occasion had told her
"to get on the ball " Davis said that on or about the first of
September she held a staff meeting and this is when she
finally decided to terminate her. According to Davis right
after this staff meeting nurse Thelma Coffin informed her
that she would quit if Davis "didn ' t do something about
Monkers" because she could not take any more of her
discussions about politics and religion Davis said that
Coffin was a good nurse and she did not want to lose her,
and went on to state that as of mid-September she was not
aware of any union activity and did not become aware of
any such activity until October , and, in the final analysis
testified that Monkers was discharged because she did not
do her work and "kept all the others upset ." Dexter
Mitchell is an LVN on the 3 to I I shift , but for a "few days"
was Monkers supervisor on the 7 to 3 shift. Mitchell rated
Monkers fair to poor on the quality and quantity of her
work , stated she was not interested in her work-never
volunteered-and had to be asked to do things, but
admitted that Monkers never refused to do ajob when told
or directed to do it Mitchell said he also received
complaints on Monkers from other aides and he then
passed these complaints on to Darlene Lane , but that he
was not consulted by Davis at the time of the discharge in
question and had heard nothing about a union until after
Monkers was terminated. Nurses aide Prudie Souder said in
her testimony that Monkers spent too much of her time
talking and standing around and would never volunteer her
services . Souder stated that the first time she heard about
any union was after Monkers' discharge Phyliss Massey
testified that before she became the assistant and secretary
to Davis on October 1, she was a nurses aide and in this
capacity worked with Monkers during "one night ." Massey
said that on this particular occasion Monkers dust "stood
and watched " and was of no assistance to her while she was
lifting patients in and out of their beds Massey stated she
knew nothing about any union until October. Nurses aide
Virginia McEver worked with Monkers for some time on
the 1i to 7 shift , but declared she could not properly care
for the patients while working with her. McEver referred to
Monkers as unstable, said she lacked bedside manners and
had no routine , and testified she reported these shortcom-
ings to Moody on the night she (McEver ) walked out, and
Moody then told McEver she had received other com-
plaints on Monkers and had mentioned them to Lane 4
In rebuttal the General Counsel introduced testimony
through Thelma Coffin to the effect that she never
complained to Davis about Monkers, but stated that about
a month prior to the discharge Davis came to her and
inquired as to the kind of work Monkers was doing, and in
reply Coffin told Davis she could not say anything against
her except she was rather slow in answering lights. Davis
then told Coffin , "That's all I want to know. I'm going to
a Davis stated that on the night McEver walked out she left a note
under her office door, and the note said that she could not work under the
conditions at the home, and that she and her husband had to earn more
get rid of her." Coffin further related that she worked with
Monkers for about 2 months, and as a nurses aide would
rate her as average.
Supervisor Nancy Moody also appeared as a rebuttal
witness for the General Counsel. Moody agreed that union
talk started after the hours were cut back and other
employee benefits reduced, and in these regards the record
reflects the following testimony by Moody:
A. Well, yes, very definitely. The night I went in
and everybody was pretty upset. The union talk started.
Q. Now, who did you first hear it from?
A. Well, Pauline Monkers apparently had some
relatives, brother-in-law she knew quite a bit about unions.
She said that she could organize the place, that she had -
[Emphasis supplied.]
Q. Did she actually tell you that?
Q. Well, tell us the best you can what she said to
you?
A. Pauline asked me how I felt about a union, and
of course I felt the place needed something due to the
working standards and everything else.
Q. What did you tell her?
A. I told her that I could not be active, because I
was considered part of management.
Q. All right.
Now, did you have any discussions on your own with
any of the other supervisory personnel or LVN's, the
people in charge, about this?
A. Yes, I tried to feel most of the LVN's out as to
how they felt about it.
Q. All right.
Who did you discuss this with and try to feel them
out?
A. I remember talking to Eloise Holder, Lou Clark,
Dexter Mitchell and Gail Snyder.
Moody related that on the night of the discharge Davis
called her and referred to Monkers as an "agitator." Moody
found that Monkers learned her work well, stated that she
never "went directly" to Davis about Monkers' work, and
admitted that Monkers had "personality conflicts" with
McEver and Coffin, but stated such difficulties had nothing
to do with Monkers' qualifications or work. Moody said
that she did not know Davis was going to discharge
Monkers as she had not consulted with her.
There are several incidents in this record which happened
subsequent to the discharge here in question, and before my
final evaluation as to Monkers I will briefly mention them.
Davis testified that the first time she had any knowledge
whatsoever of any union activity in any nursing home in the
Fort Worth area was in mid-October, at a meeting of the
Tarrant County Association, but then indicated that as of
this time she was still not aware of any union activity at the
Respondent's home itself. The Respondent also produced
testimony to the effect that in mid or late October, State
employees Crenshaw and Hill were in the office of the
money than they were making with the Respondent Davis testified that
Monkers' name was not mentioned in the note
AUTUMN LEAF LODGE 641
nursing home discussing with Davis their Job 70 program
when Mrs. J. A. Kent, of Kents' Registry, called by phone.5
Mrs. Kent then informed Davis that a mutual friend told
her that Monkers was trying to organize the nursing homes,
that she was "out to get" Davis, and that Monkers was
making various complaints against the Respondent. Davis
testified that after this telephone conversation Crenshaw,
who overheard her phone conversation with Kent, then told
her he had received a complaint from Monkers indicating
that the reason for her termination was so the Respondent
could hire Job 70 girls.6 According to Davis, Crenshaw
went on to tell her that the complaint by Monkers also
contained charges dealing with sanitation and health
conditions at the home and that Monkers had also written a
letter to Congressman Jim Wright.
The Respondent produced testimony through employee
Edna Spann to the effect that after Monkers' termination
Spann had a conversation with her in which Monkers
indicated that all employees would be replaced by Job 70
people, that she was going to cause Davis any kind of
trouble she could, that she was also going to write to
Congress, and further that Monkers was going to get in
touch with all the labor boards
In December, Thomas Bowdre, supervising inspector for
the Texas State Department of Health, received a
complaint initiated by Monkers. Bowdre testified that the
complaint stated the Respondent had engaged in gross
neglect of patients, was committing certain violations on
sanitary conditions, and further that the home had been
notified as to upcoming inspections so they could pass the
inspection. Bowdre and two other health officials then
made an inspection of the Respondent's facility and later
Bowdre made a report on his investigation and concluded
that the complaints were notjustified
In the latter part of January or the early part of February
of 1971, Martha Patrick, administrator for Brookhaven
Nursing Home, testified that Monkers had applied for a job
at Brookhaven, and that when she asked her why she had
left the Respondent's home, Monkers replied that Davis felt
she was working for the Union. Patrick then went on to
testify that Monkers became irrational, very nervous and
very upset, and had stated.
But, that Mrs Davis had crossed her and when she
crossed her, she crossed the wrong person, that she would
get even with her and she would clear her own name.
Monkers denied making any statements to the effect she
was going to file charges or make trouble for Davis or that
employees were going to be replaced by Job 70 people. She
admitted writing to her Congressman alleging the health
standards were violated at the Respondent's home and that
she had been replaced by Job 70 people. Monkers further
admitted filing charges with the Wage and Hour
Department.?
The Respondent points out that the original unfair labor
practice charge in the instant case was filed by the Union
5 From time to time the Respondent uses Kents' Registry in securing
the names of potential nurses and other needed help
i, it appears that Job 70 people are lacking in certain educational
advantages , and the Respondent trains some of these people through the
Texas Employment Commission
I In testifying for the General Counsel former employee Sandra Fietz
stated that at a staff meeting in November , Davis told them "she had let
on December 7, and argues that this took place after
Monkers had already filed complaints with several other
agencies. The Respondent would more or less place all of
these charges in the category of revenge against Davis and
the Respondent on the part of Monkers, and in detailing
their argument along these lines state the following:
"summarily stated, these witnesses [for Respondent]
indicated that Monkers was going to engage in a campaign
aimed at destroying Davis personally, defame the name of
the Respondent in the community and harass the employer-
employee relationship at the Respondent's place of
business Although not dispositive of the question as to the
motivation of the Respondent in discharging Monkers, this
testimony supports the proposition that Monkers had
problems with other employees while at the Respondent's
place of business, was an `agitator' thus, substantiating the
only reasons given by the Respondent in discharging the
individual. Can a witness with emotions, intentions and
motives so twisted and perplexed be a witness of
credibility?"
From this record it is most obvious that Monkers was
extremely upset with her discharge and did not take it
lightly. In fact, she may well have instituted some measures
of personal vendetta against Davis and the home, but, in
the final analysis, the complaint in this instant proceeding
must stand or fall on its own merits, and if the unfair labor
practice charge was filed merely to harass or defame Davis
and the Respondent, then my findings and conclusions will
be in accordance therewith. It is noted, of course, that none
of the incidents referred to above took place until after the
termination and therefore could play no part in any of the
reasons for discharge existing as of September 16 or prior
thereto. There is also the possibility that Monkers took a
retaliatory attitude because of her strong feeling that she
was unjustly and summarily fired for engaging in protected
union activity.
From this record it is clear that Monkers was the one who
initiated the union organizational talk and movement at the
Respondent's nursing home. As pointed out, she and other
employees experienced mutual dissatisfaction over a
reduction in hours and pay and as a result Monkers
endeavored to seek information about organizing. She was
advised to scout around to see whether enough interest
could be developed, and in the process of looking for
support and talking about it at work on a daily basis, her
union interest became a known fact, and she was
subsequently terminated.
The Respondent had direct knowledge of Monkers'
union activity through Night Supervisor Nancy Moody. By
the testimony and open admissions of Moody as aforestat-
ed, there can be no dispute that by the end of August,
Moody was fully aware of Monkers' union activity, and
therefore, the Respondent had specific knowledge of her
union efforts and plans prior to the discharges The
Respondent makes an argument to the effect that some
Pauline Monkers go, and that she was working with the union-or for the
unioi., and she said she had been reported to the Labor Board and to four
or five other agencies " Carolyn Wright attended the meeting at the home
in October and related that on this occasion Davis told them she had been
reported to various agencies "by a girl she had to let go that had union
activity, and we all knew who the girl was."
s If for some reason it is determined by the Board that Moody lacks
(Continued)
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses admitted they never heard Monkers mention
anything about a union. A review of the record, however,
shows that several of those so testifying were not on the
night shift, and if they were on the same shift as Monkers
they had assignments other than as a nurses' aide. For
purposes here this argument by the Respondent in no way
detracts from the admissions by Supervisor Moody, and
even if Monkers talked to no one else the fact that she did
mention her union plans to a supervisor would be sufficient
to invoke the protection of the Act.
At the outset of the trial Davis suggested that Monkers
was discharged because her work was unsatisfactory. Then
the director of nurses, Darlene Lane, testified that
Monkers' work was satisfactory and Night Supervisor
Moody, who was probably in the best position to judge,
stated that in her opinion Monkers "learned her job well"
and that Davis had never consulted with her prior to the
discharge in question. Later in the trial Davis testified that
complaints by Thelma Coffin finally persuaded her to
discharge Monkers, but then Thelma Coffin appeared as a
rebuttal witness and said that she never complained to
Davis about Monkers, and as a nurses' aide rated her
ability as average. As pointed out, the defense presented by
the Respondent expanded in flexibility somewhat as the
trial proceeded, but in the final analysis both supervisors,
and then the one nurse Davis, had great confidence in
Coffin-all gave favorable testimony for Monkers. Coffin
explained at the hearing that when she told Moody she
could not work another night with Monkers, she meant that
it was too much work for the two of them to do. Coffin also
related that about a month before Monkers was fired,
Davis came to her and asked how Monkers was getting
along, and she then told Davis she could not say anything
against Monkers except that she was slow answering lights.
Davis replied, "That's all I want to know. I am going to fire
her." Davis never warned Monkers about this and as far as
this record goes never mentioned this to Lane or Moody. It
becomes apparent that Davis was merely searching for
some reason to get rid of Monkers after learning of her
union interest and activity.
Dexter Mitchell rated Monkers as fair to poor, but
admittedly only observed her for a day or two and then
further admitted that Monkers had never refused to carry
out assignments when directed to do so Phyliss Massey
only worked with Monkers one night and is now the
secretary and assistant to Davis. Virginia McEver regis-
tered various shortcomings against Monkers, as aforemen-
tioned, and left the impression she walked off and quit her
job because of Monkers. However, the note she left under
the office door did not even mention Monkers. Moody
stated that Mc Ever walked out when Monkers had inquired
about sterilizers, and that the next morning she mentioned
this incident to Lane-that both Mr. and Mrs. McEver had
quit-but did not mention anything about Monkers. It
appears to me that McEver quit because of financial and
various other reasons, and the testimony of Moody and
Lane clearly exonerates Monkers.
Turning now to the specific 8(a)(1) allegations in the
complaint: Olla Clifton remembers Davis saying at one of
supervisory capacity, the Board's small plant doctrine would then apply
and invoke , by inferences, prior union knowledge
the October meetings "if we did organize a union and we
struck that she could-would replace us. The minute we
walked out, she could replace us." Carolyn Wright also
gave credited testimony that during the middle part of
October, Davis told a meeting of employees she did not
want any of them talking about the Union and that if they
did so "she could fire" them and "would." The above are
clearly threats of discharge and as such violative of the Act.
It is alleged that on or about October 16, 1970, the
Respondent posted, promulgated, and enforced an invalid
no-solicitation rule for the purpose of depriving its
employees of their right to engage in activities on behalf of
the Union. Prior to union discussions and organizational
plans the Respondent did not have any type of rule against
solicitations or distributions at the nursing home. However,
in October the Respondent posted a no-solicitation rule
prohibiting solicitation of any kind on the premises during
working hours.9
Testimony shows that the question of solicitation was
again brought up in a meeting in December when Davis
told employees that she did not want them talking or
soliciting for the Union on the job. The employees have two
15-minute coffee breaks on each shift which are paid time,
and the General Counsel contends Davis made it clear that
since the Respondent was paying them for coffee breaks, as
distinguished from lunch breaks, they were to observe the
no-solicitation rule on coffee breaks. Mary Stevenson
stated that during lunch she was feeding one of the patients
and while so doing mentioned to Edna Spann that Edna
was "probably mad enough to go to a union meeting."
Davis then called Stevenson into her office and told her not
to talk to other employees at the lunch break while they
were working. It seems that Spann worked in the kitchen
and was serving dinners at the time Stevenson talked to her.
Carolyn Wright attributed the statement to Davis that she
did not want "any kind of soliciting of the unions brought
out."
An employer may promulgate and enforce a rule
prohibiting union solicitation during working hours, and
such rule is presumed to be valid in absence of evidence
that it was adopted for discriminatory purposes. In the
instant case there is no reliable evidence to show that the
rule was invoked during nonworking hours, and in the one
incident involving Stevenson and Spann during the lunch
period, it appears that Spann was on work status at the
time. Therefore, the General Counsel has failed to
introduce evidence sufficient to overcome the presumption
of validity, and it is recommended that this allegation, and
all other independent 8(a)(1) allegations not specifically
found violative herein, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed 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
9 Resp Exh 2
AUTUMN LEAF LOD(t 643
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Pauline Monkers
by discharging her on September 16, 1970, I will
recommend that Respondent offer her immediate and full
reinstatement to her former position or, if thatjob no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of pay she may have suffered
by reason of said discrimination against her by payment to
her of a sum of money equal to that which she would have
earned from the date of the discrimination against her to
the date of her reinstatement less her net earnings during
such period in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum.
Because of the type of the unfair practices engaged in by
Respondent, I sense an opposition by Respondent to
policies of the Act and I deem it necessary to order
Respondent to cease and desist from in any like or related
manner interfering upon the rights guaranteed its employ-
ees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following-
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3. By discriminating in regard to hire and tenure of
employment of Pauline Monkers by discharging her on
September 16, 1970, because of her activities on behalf of
the Union, and in order to discourage such union
membership and activities, Respondent has engaged in and
is engaging in unfair labor practices in violation of Section
8(a)(3) of the Act.
4. By threatening discharge of employees because of
union activity, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed them in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 10
ORDER
Respondent, National Living Centers, Inc., d/b/a
Autumn Leaf Lodge, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in regard to
the hire and tenure of employment or of any term or
condition of employment of its employees because of their
membership in and activities on behalf of the Union herein
or any other labor organization of their choice.
(b) Threatening employees with discharge because of
their union activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Pauline Monkers immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her in the
manner set forth in the section of this Decision entitled
"The Remedy," with interest thereon at 6 percent per
annum.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its nursing home in Hurst, Texas, copies of the
attached notice marked "Appendix." ii Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(d) Notify the Regional Director for Region 16, in
wnting, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.12
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as 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
11 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 RELATIONS 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 "
12 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 16, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Pauline Monkers her formerjob or,
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if that job no longer exists , a substantially equivalent
position , without prejudice to her seniority or other
rights and privileges , and we will pay her for any loss of
pay she may have suffered by reason of our discrimina-
tion against her together with interest thereon at 6
percent per annum
WE WILL NOT threaten employees with discharge
because of their union activity.
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or any
term or condition of employment of our employees
because of their membership in and activities on behalf
of the Union herein or of any other labor organization
of their choice.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their right to
self-organization, to form , join or assist labor organiza-
tions, including the Union herein , to bargain collective-
ly through a bargaining agent chosen by our employees,
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any such activities.
Dated By
NATIONAL LIVING CENTERS,
INC., D/B /A AUTUMN LEAF
LODGE
(Employer)
(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 provisions , may be directed to the Board 's Office, 8A24
Federal Office Building, 819 Taylor Street , Fort Worth,
Texas 76102 , Telephone 817-334-2921.