Avon Convalescent Center, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1972

200 N.L.R.B. 702 (N.L.R.B. 1972)

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Avon Convalescent Center, Inc and National Union of
Hospital and Nursing Home Employees, Local
1199H, an affiliate of Retail, Wholesale, Depart-
ment Store Union, AFL-CIO
Avon Convalescent Center, Inc and Service, Hospital,
Nursing Home and Public Employees Union, Local
47, Service Employees International Union,
AFL-CIO Cases 9-CA-6316 and 9-CA-6529
December 4, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 11, 1972, Administrative Law Judge'
William Feldesman issued the attached Decision in
this proceeding Thereafter, the Respondent filed
exceptions 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
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions 3 of the Administrative Law Judge and to
adopt his recommended Order
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 and
hereby orders that Respondent, Avon Convalescent
Center, Inc, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order
1 The title of Trial Examiner was changed to Administrative Law
Judge effectr a August 19 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board s established policy not to
overrule an Administrative Law Judge s resolutions with respect to
credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
3 We do not adopt the Administrative Law Judge's finding in In 3 that
irrespective of the intentions of Craft and Osborne their uninvited entry
into the meeting would have constituted a violation of Sec 8(a)(1) by
Respondent
TRIAL EXAMINER'S DECISION
WILLIAM FELDESMAN, Trial Examiner These cases were
consolidated on December 2, 1971, and tried before me in
Cincinnati, Ohio, on January 17, 18, 19, and 20, 1972 The
charge in Case 9-CA-6316 was filed on June 11, 1971, by
National Union of Hospital and Nursing Home Employ-
ees, Local 1199H, an affiliate of Retail, Wholesale,
Department Store Union, AFL-CIO, herein called Local
1199H, and a complaint was issued thereon by the General
Counsel on August 27, 1971, against Avon Convalescent
Center, Inc, Cincinnati, Ohio, herein called the Respon-
dent The original charge and amended charge in Case
9-CA-6529 were filed on October 14 and November 11,
1971, respectively, by Service, Hospital, Nursing Home
and Public Employees Union, Local 47, Service Employees
International Union, AFL-CIO, herein called Local 47,
and a separate complaint was issued thereon by the
General Counsel on December 2, 1971, against the
Respondent The Respondent filed answers to the com-
plaints on December 23, 1971 The complaint in Case
9-CA-6316 alleges that the Respondent, on or about June
7, 1971, conunitted an unfair labor practice in violation of
Section 8(a)(1) of the National Labor Relations Act by
engaging in surveillance of a Local 1199H meeting And, as
amended at the hearing, the complaint in Case 9-CA-6529
avers that the Respondent, between August and October
1971, committed unfair labor practices in violation of
Section 8(a)(1) of the Act by threats, warnings, intimidat-
ing statements, surveillance, and a rule against solicitation,
all in relation to the Local 47 activities of its employees,
and in violation of Section 8(a)(3) and (1) of the Act by
discharging and refusing to reinstate 14 named employees
"because of their sympathies for, membership in and/or
activities on behalf of" Local 47 The Respondent denies
the commission of any unfair labor practices, and it also
controverts allegations that certain named persons were its
agents and its "supervisors" as defined in Section 2(11) of
the Act, and that it is engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act The issues thus raised are
for the most part factual, requiring findings from the
evidence as to the essential facts, including resolutions of
conflicting testimony, and the drawing of inferences from
those facts, although some legal questions have also been
presented, principally with respect to jurisdiction, surveil-
lance, and the Respondent's rule against solicitation
Upon the entire record, after seeing and hearing the
witnesses and observing their demeanor on the stand, and
after due consideration of the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
All parties stipulated, and I find, that the Respondent is
an Ohio corporation engaged in the business of operating a
proprietary nursing home in Cincinnati, Ohio, that during
the 12 months preceding the hearing in these cases, which
is a representative period, the Respondent received gross
revenues in excess of $100,000, and that during the same
representative period the Respondent "had an indirect
inflow of goods and services valued in excess of $5,000
which it purchased from suppliers located within the State
of Ohio who, in turn, purchased the same goods directly
from points outside the State of Ohio " I find upon the
foregoing that the Respondent's "inflow" is not de minimts,
that the Respondent is and at all material times has been
200 NLRB No 99
AVON CONVALESCENT CENTER, INC 703
an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the policies of the
Act to exercise jurisdiction in these proceedings Sunshine
Convalescent Hospital, Inc, 187 NLRB No 98 (1971),
Somerset Manor, Inc, 170 NLRB 1647 (1968), Aurora City
Lines, Inc, 130 NLRB 1137, 1138 (1961), enfd 299 F 2d
229, 231 (C A 7, 1962), see N L R B v Suburban Lumber
Company, 121 F 2d 829, 832 (C A 3, 1941)
II THE LABOR ORGANIZATIONS INVOLVED
I find, as the Respondent admits in accordance with
allegations in each complaint, that Local 1199H and Local
47 are and at all material times have been labor
organizations as defined in Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Respondent's Surveillance of the dune 7,
1971, Meeting Held by Local 1199H
In May and early June 1971 David H Jones, organizer
for Local 1199H, distributed leaflets at a number of
nursing homes in Cincinnati, including that of the
Respondent, in connection with a citywide organizational
meeting of nursing home employees which Local 1199H
had scheduled for June 7, 1971, at its Cincinnati offices at
1015 Vine Street The Respondent is one of 11 or 12
nursing homes owned in common and forming a chain or
group known as Keller Nursing Homes Gerald Keller, the
dominant official of that organization and the president of
the Respondent, is referred to in the record as the "owner"
of the chain Donald Reckner, the Respondent's operations
manager, who the Respondent concedes in its brief is a
"supervisor" within the meaning of the Act, serves in the
same capacity for other nursing homes in the Keller group,
performing overall duties not only for the Respondent but
also for these other homes At a central office for the chain,
other officials likewise extend their activities to the
Respondent and other homes in the group Applicants for
employment by one home in the group are apparently
sometimes referred to and hired by another home in the
chain The Respondent has employed workers sent to it
under this practice It also employed at least one employee
transferred from another home in the group Reckner, all
during the period under consideration in this proceeding,
had control and charge of the Respondent's nursing home
and its operations In November 1971 Reckner was
formally appointed as the Respondent's administrator,
thus adding to other titles conferred upon him in his
employment by the Keller group
During the course of his activities at the Respondent's
nursing home, Jones on one occasion about June 1, 1971,
met David F Craft, the Respondent's assistant administra-
tor, who the Respondent in its brief also concedes is a
"supervisor" within the meaning of the Act Jones and
Craft mutually introduced themselves, each identifying
himself to the other by his name and his position with his
organization Upon parting, as Jones credibly testified
without contradiction, Jones told Craft that they "would
be seeing a lot of each other "
On June 7, 1971, Local 1199H held its scheduled
citywide organizational meeting at its Vine Street address
Many workers from various nursing homes in Cincinnati
attended, but none of the Respondent' s employees came
About 15 or 20 minutes after the meeting started, Craft
arrived with Marga E Osborne, who described herself in
her testimony as a licensed practical nurse, as having been,
among other things, Craft's assistant and the Respondent's
social services assistant , and as having performed "whatev-
er duties are required," including hiring, screening, and
laying off personnel and helping "with the decision of
whether we keep them or whether they're qualified, and so
on " In its brief the Respondent acknowledges that
Osborne is a "supervisor" within the meaning of the Act
Both Craft and Osborne entered the meeting place-the
offices of Local 1199H As Craft was about to "sign in,"
Jones recognized him, and, as Jones testified, "informed
him that he would have to leave, that supervisors were not
allowed in the meeting " As Jones further testified, Craft
told Jones "he felt that he could stay or he did have a right
to stay, or something to that effect," but Jones announced
"Well, you are not going to stay in this meeting " At this
point Craft and Osborne left the offices
Craft did not testify, but Osborne explained their
presence in the meeting place as follows "We had gotten
word that they were going to organize a union in the
nursing homes We had gotten word from other nursing
home operators The understanding we had was that they
wanted all of us there-admimstrators, assistants, and so
on-to bring the union into the nursing homes There were
several other administrators, owners, and other people
from other nursing homes down there when we met "
Soon after they left the meeting, Craft and Osborne
entered Craft's automobile, which was parked directly in
front of 1015 Vine Street, and sat in it As Osborne
testified, they remained in the car for about an hour and a
half At the end of the meeting, a few of the nursing home
employees who were in attendance called Jones' attention
to the fact that Craft was outside the building and had not
left the vicinity Jones then approached the car in which
Craft and Osborne were sitting, and, as Jones further
testified, told Craft that unfair labor practice charges
would be filed "for his presence at that meeting and the
fact that he was still there " Jones additionally testified,
and I find, that he then "went back into the building and
out the back door and came back around through the alley
beside the building and [Craft] was still there," that he
again walked to the car and told Craft that "You might as
well leave, because we have slipped your workers out the
back door, and you are going to be sitting here by
yourself," and that Craft then "drove away " 1
For remaining in the car parked in front of the Vine
Street meeting place for an hour and a half, until the
meeting ended, and Craft was rebuked, not once, but
twice, before she and Craft left the area, Osborne offered
the following explanation "The Kroger Building is across
the street, and there's a guard over there that I know, and I
I Osborne confirmed in her testimony that she and Craft were who approached them as someone other than Jones and the language used
admonished for their presence in the parked car but described the person by that person as somewhat different
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went over to see whether he was free, and waited, asked
him if he had some time, that we were across the street,
that I wanted to talk to him So I sat out there"
Her explanation is manifestly lame and unpersuasive I
am convinced and find that Craft and Osborne lingered so
long in front of the union meeting place, after they were
ejected from the meeting, for the purpose of keeping the
meeting and its participants and invitees under surveil-
lance This course of conduct immediately after their
ejection, and the complete absence of probative evidence
to indicate that Local 1199H invited the managerial staff of
the Respondent-or of any other nursing home employer
-to attend the meeting, negate Osborne's vague and
unsupported testimony that "The understanding we had
was that they wanted all of us there-administrators,
assistants, and so on-to bring the union into the nursing
homes," and warrant the finding, which I make, that Craft
and Osborne had earlier entered the meeting place for the
very same purpose to engage in surveillance of the
meeting and its participants and invitees 2
I conclude and find that by such surveillance in and near
the meeting the Respondent deliberately set out to learn of
the interest of its employees in Local 1199H and of any of
their activities on that union's behalf, and thereby violated
Section 8(a)(1) of the Act,3 notwithstanding that none of its
employees were present at the meeting, for its employees
were invitees and as such free under Section 7 of the Act to
attend or not to attend the meeting, and to engage or not to
engage in other and further union activity, unmolested and
without interference by the Respondent See N L R B v
Baldwin Locomotive Works, 128 F 2d 39, 50 (CA 3, 1942),
N L R B v Grower Shipper Vegetable Assn, 122 F 2d 368,
376 (C A 9, 1941), Bethlehem Steel Co v N L R B, 120
F 2d 641, 647 (C A D C, 1941) "Casual examination of
the dictionary discloses that a person may be interfered
with, restrained or coerced without knowing it " N L R B
v Grower-Shipper Vegetable Assn, supra at 376 Moreover,
the open presence of Craft and Osborne at and in front of
the meeting place was observed by at least one union
official and by employees of nursing home employers other
than the Respondent, employees who were in attendance at
the meeting, and the meeting was citywide in scope Also,
the considerable interrelationships of the various homes,
including the Respondent's, constituting the Keller chain,
have already been specifically noted Under these circum-
stances there was a real likelihood that the Respondent's
employees would hear of the surveillance by Craft and
Osborne, and that it would have a tendency to inhibit them
in the future in the exercise of their Section 7 rights This,
too, supports the finding I have made that by the
surveillance of Craft and Osborne the Respondent contra-
vened Section 8(a)(1) of the Act
2 Osborne testified that about a year before an official of some labor
organization had been invited by the Respondent to address its employees
at its nursing home and that she had been the one that gathered the
employees to participate in the meeting that he had to see about organizing
a union But this was hardly a reasonable basis on which to assume that
she and Craft were welcome to attend Local 1199H s citywide meeting a
year later
3 1 also find that irrespective of the intentions of Craft and Osborne
B The Respondent's Rule Against Solicitation
Since about February 1971 the Respondent has been
generally distributing to new nonprofessional employees as
they are hired a document entitled "Policies, Rules and
Regulations for Non-Professional Personnel " Beside the
marginal notation "Solicitation," the document contains
prohibitions against distribution of literature and against
solicitation, broad enough in compass to envelop union
literature and union solicitation The rule forbidding
solicitation reads as follows
During working time employees shall not solicit for any
purpose or cause in any area of the Employer, and in
public areas of the Employer when open to the public
such solicitation shall not take place by employees at
any time
At the hearing the General Counsel was permitted to
amend the complaint in Case 9-CA-6529 to add an
allegation that the Respondent violated the Act by
"promulgating, maintaining and enforcing a no-solicitation
rule which prohibits employees from soliciting orally for
the union in work areas during their nonwork time " In his
brief the General Counsel elaborates, attacking only the
first portion of the above-quoted rule, that part which
reads "During working time employees shall not solicit for
any purpose or cause in any area of the Employer "4 He
contends that in the absence of special circumstances,
neither claimed nor proved by the Respondent, this
language is presumptively invalid and violative of Section
8(a)(1) of the Act Equating the phrase "working time"
with "working hours," he argues that the precise scope of
this prohibition is "ambiguous, that the risk of ambiguity
must be held against the promulgator, and that the use of
`working hours' may be readily understood as prohibiting
solicitation during the course of the working day " To
support his argument he refers to two cases Farah
Manufacturing Company, 187 NLRB No 83, and Campbell
Soup Company, 159 NLRB 74
In the Farah case the Board , in considering a rule
banning distribution of literature "during working hours,"
concluded that it violated the Act because of its ambiguity,
the risk of which "must be held against the promulgator of
the rule rather than against the employees who are
supposed to abide by it," citing N L R B v Harold Miller,
341 F 2d 870, 874 (CA 2), enfg 148 NLRB 1579, and
observed that "the terms of the rule may be readily
understood as prohibiting the distribution of union literature
by employees on their own time during the course of the
working day "(Emphasis supplied )
In the Campbell case, the Board affirmed the holding of
the Trial Examiner that a rule against distribution "during
employees' working time," and a rule against solicitation
"during Company working hours," were both unlawful,
because such "adjective phrases are so broad and
their uninvited entry into the meeting in itself constituted a violation of
Section 8(a)(1) by the Respondent
4 Apparently in recognition that a nursing home is not a plant or factory
and that the Respondent owes special obligations to its patients and on
their behalf to their families and their visitors Whatever the reason, the
validity of the second part of the rule has not been placed in issue at least
not in this proceeding
AVON CONVALESCENT CENTER, INC 705
indefinite as to embrace activities of nonworking employees
during the times that others are working " (Emphasis
supplied) 159 NLRB at 82 Thus, in the Campbell case the
Board did establish the equation the General Counsel
presents between "working hours" and "working time," at
least when it is not clear that in the use of the phrase
"working time" the ban encompasses only the actual
worktime of the employees directly engaged or involved in
the act of solicitation or distribution
"Working time is for work" is a generally accepted
maxim in labor relations It obviously connotes a time
when work is actually performed, and not all of the interval
between clocking in and clocking out, which may also
include paid rest and meal periods and the like, and it just
as obviously refers to the time the worker in question-and
not any other-should be performing his work The limited
phrase "working time" by itself may be a term of art for
labor relations lawyers and experts, conveying to them the
full sense of the entire maxim, perhaps even in a murky
verbal setting, but it is scarcely to be expected that
employees will readily understand the meaning of the
phrase, and regardless of the context in which it is used
In the case at bar, the language under attack is unclear,
especially from the viewpoint of the workers to whom it is
addressed It cannot be determined in context whether
"During working time" means only actual working time,
and not paid periods in the workday when compensation is
received but work is not performed, and only of the
solicitor (or of the particular person or persons solicited)
As the prohibition assailed by the General Counsel is as
ambiguous as those in Farah and Campbell to which
reference has been made, the holdings of those cases are
applicable here The risk of ambiguity must fall on the
framer of the rule and not on the employees who are
placed under its proscription I find that the Respondent
violated Section 8(a)(1) of the Act by maintaining an
unduly broad no-solicitation rule which employees could
reasonably construe as prohibiting them from being
involved in union solicitation during their nonwork time in
any part of the Respondent's premises 5
C Other Interference, Restraint, and Coercion by
the Respondent
1 The supervisory status of Mary Angst, Gilbert
Ruth Burton, Irene Woerly, Georgia Burwell, and
Gail Patton
The General Counsel contends, and the Respondent
denies, that Mary Angst, Gilbert Ruth Burton, Irene
Woerly, Georgia Burwell, and Gail Patton were at all
material times "supervisors" within the meaning of Section
2(11) of the Act, or otherwise agents of the Respondent or
persons whose conduct is attributable to it Some reference
has already been made to the Respondent's managerial
5 No useful purpose would be served by discussing the averment in the
amended complaint regarding work areas for the Respondent may
blanket all of its property by a prohibition aimed solely at employees
directly involved in solicitation during tunes they are supposed to be
performing work Furthermore such discussion would necessarily entail
consideration of the second portion of the rule-whether work areas
envisage not only nonpublic areas but also public areas' even when open
to the public -and the legality of that portion has not been questioned in
hierarchy In its brief the Respondent admits that Reckner,
its operations manager, answerable not only to it, but also
to Keller Nursing Homes, is a supervisor for whose actions
it is responsible Similarly, the Respondent concedes in its
brief that Craft, its assistant administrator (the Respondent
characterizes him in its brief as being in effect the resident
manager of its nursing home), and Osborne, its social
services director (the Respondent designates her in its brief
as being in effect the director of personnel of its home), are
supervisors for whose behavior it is accountable Apart
from these three, however, no other staff member, the
Respondent insists, is a person whose actions may be
ascribed to it
This case grew out of the organizational activities of the
Respondent's nonprofessional workers, chiefly its nurses
aides and kitchen and laundry employees In addition to
these rank-and-file employees and others, such as mamte-
nance workers, the Respondent employs registered and
licensed practical nurses All five employees whose status is
in dispute are nurses Mary Angst is the director of
nursing, and Gilbert Ruth Burton the assistant director of
nursing All the licensed practical nurses and nurses aides
work under the direction and control of Angst and Burton,
who are subject to the supervision of only Reckner and
Craft Burton is answerable directly to Angst, however
Burton testified, and I find, that she is a registered nurse
and a supervisor of the nurses aides, that she gives them
"directions as to what they are to do at work" and this
authority runs "throughout the whole nursing home," and
that she can assign the aides from one work place to
another and order them to work in the kitchen if necessary
According to the Respondent, moreover, Angst was
responsible for holding in-service meetings of the nurses
aides at which instructions concerning their duties and
responsibilities and warnings of disciplinary action for
failure to discharge these obligations were allegedly
conveyed to them by her
Providing the patients in the nursing home with 24-hour
service, 7 days a week, are three basic shifts of employees
the day, starting in the morning at 7 o'clock and ending at
3 30 p in (it appears that there is another overlapping day
shift, which commences at 8 30 a in and terminates at 5 30
p in ), the second, beginning at 3 30 p m and concluding
at 12 o'clock midnight, and the third or night, starting at
11 30 p m and ending at 8 a m
Burton and Angst are directly responsible for the day
shift (or shifts) Irene Woerly, a licensed practical nurse,
testified, and I find, that she supervises the second shift,
that she circulates through the building and gives medi-
cines, that she also gives "directions, work orders and
assignments to the Nurses' Aides", and that she can
"transfer them from one floor to another" and from aide
work "to working in the laundry" if there were no one in
the laundry and help were needed there
this proceeding Similarly it is profitless to determine whether the
promulgation of the rule concerned (which seems to have occurred more
than 6 months before the filing of the original charge in Case 9-CA-6529)
or its alleged enforcement (the General Counsel points to no specific
instance of enforcement against a particular employee during his nonwork-
ing time) violated Section 8(a)(l), as the Respondent will in any event be
ordered to cease and desist from maintaining the rule
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgia Burwell testified, and I find, that she is the
night-shift supervisor in charge of six to seven nurses aides
on the third or night shift, and that her duties are "to see
that the girls are doing their work and taking care of the
patients, and whenever the patient asks for something see
that the patients are getting what they ask for, and we have
cleaning that we are supposed to do each night " She
testified further, and I find, that her supervisory functions
extend to the kitchen employees and that she will "check to
see that the food comes out properly, at the proper time,
and see that the patients, the ones that have to be fed," are
fed on time She also testified, and I find, that "Anything
that happened during the night I would talk to Mrs
Osborne before I would leave " The record clearly shows
that "anything" also covers personnel matters
Gail Patton, a licensed practical nurse no longer in
Respondent's employ at the time of the hearing, normally
worked on the day shift, having transferred to the second
shift toward the end of her employment by the Respon-
dent She was a floor nurse-a section of the nursing home
having been entrusted to her care and placed under her
authority At her station she had three to four aides under
her supervision to whom she made work assignments As
she testified, she was empowered like other nurses to write
for the attention and consideration of her supervisors a
disciplinary report or "pink slip on an employee, if they
aren't performing the way they are supposed to " Angst
and Burton were her immediate supervisors
Any question of the power of Angst, Burton, Woerly,
Burwell , and Patton responsibly to direct other employees
and to assign them-substantively, and not routmely-is
convincingly answered by the Respondent's "Policies,
Rules and Regulations for Non-Professional Personnel,"
contained in a document which has been referred to above
Among the rules governing the conduct of its nonprofes-
sional workers are those relating to solicitation and
distribution, already mentioned, appearance and dress,
leaving the building without permission and other behav-
ior, punching of timecards, absences, work assignments
and schedules, smoking, and making or receiving tele-
phone calls The document's last marginal heading is
"Supervision," beside which is the following declaration
"Those designated by Administrator along with the nursing
staff shall enforce Policies, Rules and Regulations and Job
Descriptions" (Emphasis supplied) Next to the marginal
title, "Schedules," appears "Work assignments and sched-
ules are posted in the nurses station on the floor you are
assigned You are responsible to the floor supervisor and to
the Administration and/or his assistants Lunch times are
posted Report to the floor supervisor when going to and
returning from lunch" (Emphasis supplied) And beside
the marginal heading, "Job Assignments," is the wording
"Employee must follow assignment of duties schedule as it
pertains to shift and job category covered and nurse
supervisor's directions " (Emphasis supplied) In a nursing
home servicing elderly and sick patients whose critical
needs may momentarily require variations in standard
procedures, the nurse responsible for the supervision of
other nurses or a shift or a section must obviously be
prepared to exercise her discretion in utilizing her training
and experience and assign and direct employees placed
under her authority more than clerically or routinely
Furthermore, power to enforce important personnel poli-
cies, rules , and regulations is certain to require the exercise
of independent judgment Although the record does not
establish that the nurses here in question hire, fire, or mete
out discipline or directly recommend such action, their
power to enforce major personnel policies and rules, short
of such authority, is compelling evidence that their
direction and assignment of employees is substantial and
meaningful The employees were notified of this power of
the nurses and expected to obey their directions and
assignments and interpretations of the Respondent's
policies and rules
I therefore find that each of the five nurses concerned
was at all material times a supervisor, as defined in Section
2(11) of the Act, because she had authority in the interest
of the Respondent to "assign" and "responsibly to direct"
other employees, as comprehended by that section
Testimony of nurses aides and other employees demon-
strates quite plainly, moreover, that they regarded these
nurses as superiors identified with management, an
impression which all the foregoing facts indicate manage-
ment helped to create and which it did nothing to dispel
For this separate and alternative reason, I find that the
Respondent is responsible for the conduct and statements
of Angst, Burton, Woerly, Burwell, and Patton Ramar
Dress Corp, 175 NLRB 320, 329 (1969), and Board and
court cases there cited
2 Local 47's activities and the Respondent's
reactions, other interference, restraint, and coercion
In August 1971 Local 47 began its own campaign to
unionize the Respondent's employees Apparently it
replaced Local 1199H in organizational efforts among the
Respondent's workers and intensified the drive to interest
them in becoming union adherents Instrumental in Local
47's activities was Willie E Hampton, its representative,
who filed the amended charge in Case 9-CA-6529 He
solicited employees of the Respondent to join Local 47 and
obtained from them signed application-for-membership
cards Employee Annette Gibbs credibly testified without
contradiction that around August 1 union organizers were
out on the street near the home and there were rumors of
union activities Indeed, Supervising Nurse Patton, in
August, became aware, through rumors, of union attempts
to organize the home Janell McCoy, one of the Respon-
dent's nurses aides, signed a Local 47 card on August 19,
1971, when Hampton openly solicited her and four or five
other employees as they were eating lunch between 1 and 2
p in in the yard near the front entrance of the home One
other employee signed a card at the same time McCoy
openly discussed the Union with friends on the job Ivry
Brown, one of the Respondent 's nurses aides, was
approached by Hampton on August 25, 1971, while on her
way home from work, and she then signed a Local 47 card
She subsequently attended three Local 47 meetings and
solicited her coworkers to join the Union She was
successful in securing about 15 signed cards, which
Hampton picked up at her home Among the Respondent's
employees who signed union cards after receiving them
from Brown were Victoria Selvie (signed on August 26,
AVON CONVALESCENT CENTER, INC 707
1971), Jo Ann Bell (signed on August 26, 1971), Jessie
Farmer (signed on September 5, 1971), Jeanette Barksdale
(signed on September 8, 1971), Annette Gibbs (signed on
September 8, 1971), and Linda Cruz (the date she signed a
card is later discussed) Barksdale herself distributed to her
coemployees five or six cards, which were signed and
returned to her, and she attended two union meetings
Hampton also obtained cards signed by employees Icilda
James (on August 26, 1971), Charlotte William (on
September 20, 1971), Wanda Allen (on October 1, 1971),
and Sarah Vales (on September 2, 1971) Vales, in turn,
secured a signed card from employee Letha Woodard
(Woodard signed her card on September 4, 1971), Vales
also attended union meetings and successfully solicited
other employees And employee Mary Allen signed a card
(on September 22, 1971) she received at Local 47's offices
which, like those of Local 1199H, were located at 1015
Vine Street As indicated, almost all these activities took
place in August and September 1971 All the foregoing 14
named nonsupervisory employees of the Respondent are
alleged in the complaint in Case 9-CA-6529 to have been
discnmmatonly discharged by the Respondent, James on
August 26, 1971, the day she signed her card, and the rest
less than 2 months later within a concentrated period in
October 1971
Employee James signed her union card in the vicinity of
the Respondent's nursing home while on her way to work
on the morning of August 26 As she testified, Hampton
approached her on the street near the nursing home,
identified himself as a union representative, and asked her
if she "would like to sign a card " She responded in the
affirmative and proceeded to sign a Local 47 card After
she finished signing, she walked toward the building, and,
as she further testified, looked "across in the parking lot
and I saw Mrs Osborne was leaning from against her car,
going towards the building, and we both cast eyes on each
other " About 10 a in, after she started to work, employee
Ivra Brown asked her if she had signed a union card, and
she answered "yes "
Brown testified that on August 26 "Around ten minutes
to seven in the morning I was in a patient's room
looking out of the window, saw Marge Osborne drive into
the back driveway and parked her car She got out of her
car and went behind a big red truck that the maintenance
men use, and Ind behind it and watched Mr Hampton on
the street talking to someone I couldn't see who he was
talking to " Brown further testified that later that day,
when James told her that James had signed a union card,
she told James that Osborne "had seen her and that if she
or Mr Crafts asked her what did she sign to tell them that
she signed a card to make Martin Luther King's birthday a
national holiday "
Osborne testified that on driving to work the morning of
August 25 or 26 she noticed a man and woman standing on
the sidewalk near the home's back parking lot entrance as
she entered the lot She additionally testified that she "was
cautious" when she parked the car and left it, as she "had
been assaulted several tunes, and it's quite dangerous
around the area there in the back parking lot, or even in
the front as far as that goes " She further testified that
"This has been some years ago, but it's still a fact that you
dust look out when you go in, you just don't get out if you
don't recognize people, and so on I did look around as I
started to walk inside the side door and seen it was Icilda
James The man who was with her, I don't know " Osborne
denied hiding behind a red truck, but confirmed on cross-
examination that the Respondent owns such a vehicle,
which it uses to "haul furniture and foods, and different
things that belong to the company," and that it is
"sometimes" in the parking lot
It has already been found that Osborne, together with
Craft, engaged in unlawful surveillance of Local 1199H's
citywide organizational meeting of June 7, 1971, and that
explanations tendered by Osborne in that connection were
unacceptable Around August 1 there were union organiza-
tional efforts on the street near the home and rumors of
union activity Hampton's overt solicitation on August 19,
1971, of five or six employees eating lunch in a group near
the front entrance of the nursing home, has also been
noted While some union activities were carved on secretly
among the Respondent's employees, this particular occur-
rence was not covert, and employee McCoy, who signed a
Local 47 card that day, later discussed the Union openly
with friends on the job Another employee in the luncheon
group also signed a card on August 19 at Hampton's open
solicitation The home employed a small complement of
about 38 nonsupervisory employees, making it extremely
likely that open information and discussion of union
activity would quickly pass through the staff and become
known to the Respondent and its supervisory personnel I
infer and find from these facts that on the morning of
August 26 Osborne was aware or suspected that there was
union activity among the Respondent's employees, and
that on that date she was as interested in learning of such
activity as she had been in June 6 Moreover, Osborne
acknowledged that she saw James with "a man" the
morning of August 26 when she arrived at the home's rear
parking lot, although she indicated she did not at first
realize it was James James, the record shows, was well
known to her She also conceded that on August 26 she
moved with caution In explanation of her actions, she
referred to assaults made on her some years before, but to
no recent event to give her fresh cause for alarm in the
daytime at the nursing home at the beginning of the day
shift when employees would be reporting for work and she
would not be alone Under all the circumstances, including
Brown's forthright manner and generally favorable de-
meanor on the stand, I credit Brown's testimony regarding
Osborne's furtive behavior on August 26 in the home's rear
parking lot and her concealment to observe unnoticed the
activities of Hampton and James Based on the credible
testimony of Brown and James, I conclude and find that
on August 26, 1971, Osborne engaged in surveillance of
Hampton's solicitation of James and James' union activity,
6 In so finding I have considered but do not credit Osborne s testimony were being made at the home Furthermore June was not so far in the
that after June 1971 it was not until September 3 1971 that she learned distant past as to make its events meaningless in August
through Supervising Nurse Georgia Burwell that organizational attempts
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the Respondent thereby violated Section 8(a)(1)
of the Act 7
Sarah Vales testified that, in late August 1971, Irene
Woerly, the supervisor of the second shift, on which Vales
was then working as a nurses aide, walked into a room in
which "most of the nurses' aides hang their coats", and
that while Vales was hanging up hers Woerly told Vales
and two or three other aides who were also present that
she, Woerly, "had heard that a union was trying to be
organized there, and for us not to sign the union cards if
we wanted our jobs " Vales further testified that Woerly
then "told me that personally" and "walked out " Woerly
denied making the statements attributed to her by Vales I
do not credit Vales' testimony, in the face of Woerly's
denial, as I later find, in regard to the matter of the alleged
discriminatory discharge of Vales, that Vales' testimony is
inaccurate and unreliable
Supervising Nurse Gail Patton denied Vales' testimony
that, in October 1971, when Vales inquired of Patton "why
they were firing all the girls," Patton replied that it was
taking place because "there was going to be a union
organized " I discredit Vales' testimony for the same
reasons given with respect to the Woerly incident
Charlotte William and Mary Allen testified to similar
effect that, about October 1, 1971, 1 day after Osborne had
come upon and regarded them and other nurses aides
grouped together in a section of the home, Patton
commented to them that Osborne had observed the aides
and was "uptight" or "mad" because she believed they had
been talking about a union Patton denied making these
statements Given Osborne's previous concern about the
unionization of the Respondent's employees and Local 47's
organizational efforts at the time, it is not unlikely that
Osborne voiced to Patton her apprehension that the
employees grouped together were discussing a union and
her unfavorable reactions to their conduct, and that Patton
conveyed the sense of Osborne's expressions to William
and Allen Accordingly, and in view of the mutual
corroboration of William and Allen, and the fact that they
impressed me while on the stand as trustworthy witnesses, I
credit their testimony concerning Patton's remarks to
them I find that, by these remarks, the Respondent
interfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights to join and engage in
activity on behalf of a union, and that it thereby violated
Section 8(a)(1) of the Act
Annette Gibbs, who was employed by the Respondent as
a nurses aide, testified that, also about October 1, 1971, as
she approached one of the home's medicine rooms to get
supplies and while she was unobserved, she overheard
Burton, the assistant director of nursing, saying to Angst,
the director, "There will be a lot of terminations before a
union gets in " Burton denied that such a conversation
with Angst ever occurred Angst was not called by the
7 This finding is no less warranted because Osborne may not have
actually known who Hampton was It is sufficient-and I find-that she
had reason to suspect that the transaction being conducted between
Hampton and James was related to union activity In crediting the
testimony of James and Brown, I have considered but regard as
unimportant, inconsistencies therein to which the Respondent points in its
brief These matters are inconsequential and peripheral and do not affect
the main thrust of their testimony or otherwise indicate they are unworthy
Respondent as a witness From my observation of the
demeanor of Gibbs and Burton while they were on the
stand, and considering that Burton was less than direct in
giving testimony concerning her title and exact position
with the Respondent, and that her denial was not
corroborated by Angst, I credit Gibbs' testimony of
Burton's remark to Angst I find that, by Burton's plainly
coercive comment, overheard by Gibbs, the Respondent
violated Section 8(a)(1) of the Act Ford Radio & Mica
Corporation, 115 NLRB 1046, 1047 (1956), Colecraft
Manufacturing Co, Inc, 162 NLRB 680, 686 (1967), cf
McCann Steel Company, Inc, 184 NLRB No 90 (1970)
Although the United States Court of Appeals for the
Second Circuit reversed the Board on this point in the
Colecraft case, 385 F 2d 998, 1004 (1967), and the United
States Court of Appeals for the Sixth Circuit did likewise in
the McCann case, 448 F 2d 277,278 (1971), I am of course
bound by the Board's holdings unless and until the Board
affirmatively adopts for the future contrary rulings of the
courts of appeals, or the Board is reversed by the Supreme
Court of the United States, neither of which has occurred
here Novak Logging Company, 119 NLRB 1573, 1575-1576
(1958)
Jeanette Barksdale, who was employed by the Respon-
dent as a nurses aide and latterly in the kitchen and
laundry, testified that, again about October 1, 1971,
Supervising Nurse Burwell told her that she, Burwell, had
been talking to Craft, the home's assistant administrator,
and Craft "said he had to get rid of some of her [Burwell's
girls because he had heard they had joined the union "
According to Barksdale's further testimony, Burwell went
on to tell Barksdale that she, Burwell, informed Craft that
"she didn't think any of her girls had joined the union,"
and asked Barksdale if Barksdale knew "anything about
it," to which Barksdale answered "no "8 Burwell denied
having any conversation with Barksdale about remarks
made to her by Craft or about the Union I credit
Barksdale's testimony and discredit Burwell's denials, as
Burwell did not impress me as a forthright witness while
she was on the stand and her testimony confirms her lack
of candor On cross-examination, for example, Burwell
first denied knowing "anything about a union being at
Avon," then said she "heard rumors," that "different ones
talk about the union, but it didn't concern me," later
conceded that she heard remarks about the Union "from a
man down on the corner," that "some man down there on
the corner, offered me a union card and I asked him to go
up and give it to [Craft), that's how I know about the
union," and subsequently insisted that when she had
mentioned "different ones talking about the union," she
was referring to "girls" from another nursing home located
"across the street" whom she had seen talking to the man
who had offered her a union card Also on cross-examina-
tion Burwell first denied mentioning the Union to
of belief particularly on the central issue of Osborne s surveillance of
Hampton and of James card signing
B Minor variations between Barksdale s testimony on direct examination
and cross-examination are inconsequential and do not weaken the essence
of her testimony related above that Burwell informed her of Craft's coercive
and revealing statement and proceeded to question her in this context about
her knowledge of union activities
AVON CONVALESCENT CENTER, INC 709
Osborne, then acknowledged that she informed Osborne
about being offered a umon card and telling the solicitor to
give it to Craft I find that Burwell made statements to
Barksdale, substantially as Barksdale testified By so doing,
Burwell communicated to Barksdale a coercive remark
attributed to Craft and in that intimidatory context
interrogated Barksdale concerning her knowledge of union
activities I conclude and find that by Burwell's statements
and interrogation the Respondent violated Section 8(a)(1)
of the Act
Wanda Allen, who was hired by the Respondent as a
nurses aide, testified that, at 2 30 in the morning of
October 7, 1971, several hours before she was discharged
that day, she heard a conversation between Burwell and
Marie Graham, another nurses aide, whom Allen had
sometime before told that she, Allen, "was thinking about
joining a union " According to Allen, Burwell was in the
middle of a sentence when Allen first heard her and said
"the reason those [time] cards were pulled is because
somebody had signed some union cards,"9 Burwell then
asked Graham "could she give her any more names,"
Graham answered "Jeanette" (meaning Barksdale) and
"Lillian" (whose last name is not revealed by the record),
Burwell said "I know," Graham then added "Wanda"
(meaning Allen) and "Charlotte" (meaning William), and
Burwell stated, "Well, they are all going to go anyway,
except for Lillian " Allen further testified that she made
her presence known by shuffling her feet, that Burwell at
that point asked her if she had signed a union card, that
she told Burwell "that it didn't concern her", and that
Burwell retorted, "If you did you are going to get fired,
because they are going to fire a lot of girls around here
because of the union " Burwell denied engaging in the
conversations to which Allen testified or making the
statements Allen ascribed to her For reasons already
stated, I discredit Burwell's denials I credit the testimony
of Allen and find that, by Burwell's coercive remarks that
there would be discharges because of union activity and
her interrogations concerning that activity, the Respondent
contravened Section 8(a)(1) of the Act
Victoria Selvie, who was employed by the Respondent as
a nurses aide, testified that on October 7, 1971, after she
and employee Jo Ann Bell were discharged, she offered
Supervising Nurse Patton a ride in her car and Patton
accepted While they were in her car, Selvie further
testified, she asked Patton why she and Bell had been fired,
and Patton answered, "Well, they know you all was in the
union," and she then inquired, "How do you know we was
in the union9", to which Patton replied, "I don't know"
and added, "Don't worry, the other girls are going to get
fired too " Selvie additionally testified that Patton in-
formed her during the automobile ride that Director of
Nursing Angst requested Patton "to write pink slips on the
other girls" (thereby evidencing some dereliction of duty),
but that Patton told Angst she would not do so because the
girls had not done anything wrong, and that later Angst
"called her in the office and asked her to even forget they
asked her to write the pink slips " Patton admitted that,
following Selvie's discharge, Selvie gave her "a lift" in
Selvie's car, but testified that Selvie had asked her if Selvie
had been discharged because of belonging to the Union
and that she had answered, "No, I don't believe so," and
that when Selvie stated that "everybody is being fired
because they belong to the union" she rejoined, "No, they
wouldn't terminate people for this reason " Patton denied
telling Selvie that employees would be fired because of the
Union Based on my observation of the demeanor of both
Selvie and Patton while they were on the witness stand, I
am of the opinion that Selvie is the more dependable
witness and therefore credit her testimony I find that the
Respondent violated Section 8(a)(1) of the Act by Patton's
statements to Selvie to the effect that employees had been
and would be discharged because of their union activities
Jessie Farmer, employed by the Respondent as a nurses
aide, also testified to remarks by Patton, which if made
would infringe upon employee Section 7 rights and violate
Section 8(a)(1) According to Farmer, as she was entering
the nursing home on October 8, shortly before she was
discharged that day, she met Patton, her supervisor, who
told her that "they had Jo Ann Bell, and Vickie Selvie",
that "they were going to write a pink slip up on" Farmer,
having already written pink slips on Bell and Selvie, and
that Patton would not write a pink slip on Farmer as she
had no reason to do so Farmer testified further that when
she "asked her the reason why," Patton replied, "because
[they] signed a union card " But in her prehearing
statement given to the General Counsel, Farmer fixed the
time of this conversation as immediately following her
discharge, as she was leaving the building, and she gave the
following version of the conversation "I said `hey, Pat
what's going on around here ' She said `it is because you all
joined the union' That's all that was said" As for the
matter of pink slips, Farmer in her prehearing statement
continued "The day before I was fired Victoria Selvie
called me at home and told me Patton was going to write a
pink slip on me She also said Pat told her she wasn't going
to have anything to do with it because we did our work
well " Patton testified that she met and spoke to Farmer
that morning, outside the building, as Patton was entering
it to report for work, that Patton asked Farmer, "Where
are you going9", that Farmer replied "I'm fired", and that
Patton said "Oh " Patton denied telling Farmer that she
was fired because she had signed a union card or using
words to that effect Insofar as the conversation in question
is concerned, there are sufficient meaningful differences
between Farmer's testimony at the hearing and her
prehearing statement, apart from that related to the time of
the conversation, to cast substantial doubt on her reliabili-
ty as a witness to this event, also taking into account
Patton's conflicting version and denials Consequently, I
do not credit Farmer's testimony about this episode
D The 14 Discharges
As already indicated, the General Counsel contends that
the Respondent discharged 14 employees, mentioned
above by name, for their union activities, and that it
9 Allen s own timecard had been pulled when she reported for work on subsequently discharged on October 7 but other employees were also fired
October 6 for the mght shift, but Burwell furnished her with another and about the same time Pulling a timecard was a sign of termination But
had her sign it and punch in As later found not only was Allen Allen was permitted by Burwell s action to continue to work
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby violated Section 8(a)(3) and (1) of the Act The
Respondent asserts, however, that it fired these employees,
and each of them, for cause unrelated to their umon
activities, and that it therefore did not commit any unfair
labor practices by such actions Each of the 14 employees
signed before her discharge a Local 47 application-for-
membership card and some engaged in additional union
activity The Respondent's reactions and unlawful con-
duct, found above, must also be considered in determining
in each of the 14 cases whether it discharged the employee
for cause or because of her union activity Except for Icilda
James, they were all separated in October 1971 With
respect to most of the October severances, the Respon-
dent's principal defense is that these employees, together
with others, had poor attendance records, and that their
replacement by more dependable personnel became
essential to avert serious financial injury It faced such
injury, the Respondent's main defense continues, because
it was confronted in October with imminent loss of
Medicare accreditation under Title XVIII of the Social
Security Act and, more important, loss of Medicaid
accreditation under Title XIX of that act, for, among other
things, inadequate nursing services, in terms of hours
worked, which was allegedly caused in large measure by
excessive absence and tardiness among the nurses aides
Around October 1, 1971, the Respondent had 155 patients,
all but 6 of whom were financed under Title XIX, which
required the Respondent's nursing home to be a skilled
care facility and hence to satisfy higher standards in order
to receive the larger fees permitted in consequence ($14 per
patient per day, as compared with $11 per patient per day
as a nursing home and $6 50 per patient per day as a rest
home) Insisting that this defense is a facade, the General
Counsel argues in his brief that the Respondent knew of
the attempts to organize its home and that Operations
Manager Reckner "seized upon previously-condoned
absenteeism as a pretext to make a clean sweep of his
employees under the colorable justification of the impend-
ing Title XIX decertification, thereby dissipating the
inroads made by the Union among his employees " The
Respondent's chief defense and its other defenses and
contentions are later discussed and considered in detail
A different reason than excessive absence or tardiness is
assigned by the Respondent for the discharge of Icilda
James on August 26, 1971 James is a Jamaican The
Respondent contends that it was hard to understand her
because of her manner of speech, that she had difficulty
communicating with patients and fellow employees, which
resulted in "problems," and that this was the reason it
discharged her James was employed by the Respondent
on or about August 2, 1971, as a nurses aide On the day
she was hired, Mrs Starks, the Respondent's receptionist,
informed Osborne that James was a Jamaican and
submitted James' application for employment to Osborne
Osborne at that time conversed with James and hact an
opportunity to hear how she spoke English Osborne
participated in the decision to hire James James' slightly
accented English gave no one at the hearing any real
difficulty in comprehending what she had to say, counsel
seemed to be able to question her and understand her as
well as any other witness who testified
The Respondent introduced into evidence three "pink
slips" or disciplinary reports on James All were signed by
Reckner as "Administrator" and by Osborne as the
"Witness" to the event The first mentions August 5 as the
"Date of Infraction" and states under "Remarks" that
Jones "Does not follow schedule properly Working on
area not assigned to," the second fixes August 16 as the
"Date of Infraction" and recites under "Remarks" that
"Male patients complaining of asking for a shave and Aide
did not shave them pass [sic] two days", and the third
refers to August 25 as the "Date of Infraction" and sets out
under "Remarks" that "Patient complaining that when
they call aide for service she does not respond right away
Some time a half hour later " Osborne testified that she
placed the last slip on Craft's desk on August 25 with a
note that this was "the third disciplinary on" James, and
that Craft discussed the slip with Osborne the following
day when Osborne again informed him "this was her third
warning," and he said he would talk to James and take
care of the matter later Osborne further testified that she
had investigated the complaints that gave rise to the
reports, that she told James that James had "some
disciplinary sheets against her but I don't think she
understood what I was trying to explain to her, and that
she had spoken to James about not following the schedule
for her work assignments Osborne also testified that under
the Respondent's practices three "pink slips" called for
automatic discharge of the affected employee She addi-
tionally testified that James' coworkers "giggled" at the
way James talked and "mocked" her Osborne conceded
that she did not tell James when she was hired of a "three
pink slip-automatic discharge" rule 10 and did not show
her any of the skips introduced into evidence 11
James testified that no complaints were ever made to her
about her speech, that many patients told her "Oh, I like to
hear you talk," and that neither Osborne nor anyone else
ever said "anything" to her before August 26, the day of
her discharge At 3 30 p in that day, as James testified
without contradiction, Craft told her she was "terminated,"
informing her there was nothing wrong with her work, but
he had "a complaint the nurses and the patients cannot
understand your language "
James was a straightforward witness, and Osborne, as
already noted, was not I credit James' testimony that no
complaints about her speech or "anything" were made to
her by Osborne or any other management official before
3 30 p in on the day of her discharge Most significantly, it
was on the morning of that day, August 26, that Osborne
surreptitiously watched as Hampton solicited James' umon
membership and she signed a Local 47 card All three of
the pink slips were signed by Osborne as the "Witness "
Osborne initiated James' discharge presumably based on a
claimed rule of automatic separation of which James had
10 No such rule appears in the Respondent s written Policies Rules and issued on the date indicated above, which is the Date of Infraction, and
Regulations for Non-Professional Personnel which have been referred to will be made a part of the permanent and official record of employment of
earlier the employee
11 The printed pink slip form states that the `warning set forth was
AVON CONVALESCENT CENTER, INC 711
not been informed and which, insofar as the record shows,
did not exist in writing, although, as I have indicated, other
rules for employee behavior did No pink slip was signed
by any nurse James was aiding, notwithstanding that
matters such as not following instructions concerning work
assignments and complaints from patients about lack of
service would appear to come to the supervising nurse's
attention in the first instance Moreover, the inescapable
fact remains that James' speech is quite intelligible I find,
from all the foregoing facts, that James was discharged on
August 26, 1971, not for the reasons the Respondent
advances, but because of her known or suspected union
activity, and that the Respondent thereby violated Section
8(a)(3) and (1) of the Act Surveillance is not an empty act
Perhaps its principal evil lies in the fact that information
derived from it is usually put to some illegal use
All 13 of the remaining discharges occurred between
October 7 and 21, 1971 Before October 7, all 13 employees
concerned, with the possible exception of 1 (Cruz), had
signed Local 47 cards, and some had engaged in other
union activities such as soliciting Local 47 memberships
and attending Local 47 meetings Before October 7, the
Respondent had committed the unfair labor practices of
surveillance of Local 1199H's June 7 citywide meeting,
surveillance of Hampton and James on August 26, the
discriminatory discharge of James on August 26, mainte-
nance of an unduly broad rule against union solicitation,
and utterance of coercive remarks and interrogation by
supervisors about October 1 Also, on October 7 the
Respondent engaged in additional unfair labor practices
through coercive statements and interrogation by supervi-
sory personnel Furthermore, its supervisors' utterances
disclose the Respondent's antagonism to the unionization
of its employees and its readiness to dismiss them for such
activities After the discriminatory discharge of James and
the unlawful surveillance activities of Osborne and Craft,
statements made by Patton, Burton, and Burwell reveal
more than the opinion of lesser supervisors They demon-
strate an antiumon position of the Respondent taken at
higher levels In fact, Patton in one of her statements
directly involved Osborne, and Burwell in one of hers
specifically implicated Craft The Respondent employed a
normal full complement of about 35 nurses aides and
laundry and kitchen workers, classifications to which the
13 belonged, the 13 represented approximately 40 percent
of all such workers It is in this setting that the
Respondent' s defenses relating to the 13 remaining
separations must be appraised
Reference has already been made to the Respondent's
chief defense which covers most of the 13 Before August
1971 the Respondent was deficient in a number of respects
in meeting the requirements demanded of its nursing home
under Titles XVIII and XIX of the Social Security Act
Reckner testified to "deficiencies in services, lack of
number of hours as far as the Aides were concerned, and
nurses, there were deficiencies in physical plant-an
example would be installation of the sprinkler system
throughout the building " Once a private house, the
building is 50 years or more old At various tunes,
beginning about 1951, wings were added to the building In
August, Reckner further testified, there was a "follow-up"
inspection conducted by officials of the State of Ohio
responsible for verifying whether Social Security Act
standards were being met, and they determined by
examination of the Respondent's work schedules and "call-
off" notations thereon that the Respondent was "deficient
in the number of hours worked by employees " These work
schedules were not introduced into evidence by the
Respondent, Reckner testified work schedules were "usu-
ally" not retained by the Respondent for more than 30
days Reckner also testified that under applicable regula-
tions 1 attendant-or aide-was required to be on duty for
every 25 patients, 1 registered nurse was required to be on
duty 8 hours a day, 7 days a week, for all 3 shifts, for more
than 99 patients, and 3 licensed practical nurses were
required to be on duty at all times, for 150 patients The
Respondent did not officially learn of the determination
that there was a deficiency in nursing services until it
received a letter dated September 7, 1971, from the director
of the Ohio Department of Public Welfare That letter
reads as follows
Avon Convalescent Center, Inc
6922 Ohio Avenue
Cincinnati, Ohio 45236
Re Staffing deficiencies
Dear Sir
We have been advised of the staffing deficiencies in
your facility The Shortages are as follows R N 76
hours, L P N 292 hours and Aide 152 hours This is a
total of 368 hours weekly and represents nine full time
people
As you know, proper staffing is a statuatory [sic]
requirement and must be complied if you are to remain
eligible for vendor payment under Title XIX This
deficiency must (1) be corrected within 30 days of
receipt of this letter or (2) a sincere letter of intent
(documenting specifically what effort is being made to
fill these vacancies) must be sent to
Ohio Department of Health
450 East Town Street
Columbus, Ohio 43215
Attn Miss Ruth Minteer, R N
Title XIX Certification Officer
Decertification of your home has already been recom-
mended Failure to comply with the statuatory [sic ]
requirements leaves no choice but to reclassify Avon
Convalescent Center as an Intermediate Care Facility
I
Further, we are requesting that the Hamilton County
Welfare Department and Longview State Hospital do
not place any more welfare patients in your facility
until the above mentioned deficiency is corrected
Please direct any further comment to
Frederick J Zuber, Chief
Division of Medical Assistance
340 East Broad Street
Columbus, Ohio 43215
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sincerely,
JEH/cas
cc
District Office-MAC
Ruth Minteer, R N -ODH
JOHN E HANSAN
Director
On October 1, 1971, because of additional hirings in
September, the Respondent was, according to Reckner,
"all right on our schedule," in fact had more than it
needed, insofar as nurses aides were concerned But it did
not have a sufficient number of registered nurses or
licensed practical nurses, for these employees were in short
supply, particularly in the Cincinnati area
On the evening of October 5, the Respondent received
from the director of the United States Bureau of Health
Insurance Social Security Administration, the following
telegram
Based on findings and recommendations of the Ohio
State Department of Healt [sic], the Social Security
Addmimstration [sic] has determined that Avon
Convalescent Center no longer meets the health and
safety requirements for participation in the health
insurance for the aged program (Medicare) Due to
serious deficiencies of longstanding duration, the Avon
Convalescent Center does not meet Medicare statutory
requirements for nursing service , Section 1861 (1)(6), of
the Social Security Act Additionally, we find it is not
in substantial compliance with the following regulatory
conditions of participation
Section 405 1130 (social services) and Section 405 1134
(physical environment) Medicare participation agree-
ment being terminated effective October 25, 1971 No
payments under the health insurance program may be
made for services furnished to any individual who is
admitted to Avon Convalescent Center on or after that
date The Bureau of Health Insurance Regional Office
in Chicago will arrange to publish a routine notice in
the Cincinnati Inquirer Detailed letter explaining all
deficiencies and informing you of appeal rights will
follow within a few days
Reckner testified that he learned of the telegram on the
morning of October 6 and that afternoon met with
Osborne and Craft Decertification under Title XVIII, he
further testified, inevitably meant decertification under
Title XIX-and the latter concerned him greatly as
virtually all the Respondent's patients were financed under
Title XIX The letter of September 7 had indicated,
moreover, that decertification under Title XIX had already
been recommended At his meeting with Osborne and
Craft, Reckner had with him a "payroll hour sheet on
employees," which showed the hours worked by each
employee of the Respondent for seven consecutive biweek-
ly payroll periods, the first ending on July 3, 1971, and the
last on September 25, 1971 Reckner testified that from this
document he determined, on the basis of the norm of 80
hours of work each biweekly payroll period, who had been
excessively absent or tardy, that he circled the subpar
hours worked by such persons, and that he instructed
Osborne to fire them "according to the schedule, and as
new employees came in-what we already had on the
schedule, to work it around to where we still had
coverage " He also testified that "our problem had been
excessive absenteeism , and tardiness, and this is where we
had to start the corrective measure to correct the
situation " The plain import of his testimony is that this
was a "meat axe" approach-it made no difference what
justification there may have been for absence or tardiness,
whether employees had been warned about it, or whether it
had been excused or condoned-and that the employees
found wanting solely on the basis of the cold payroll hour
sheet were to be discharged The list given to Osborne,
Reckner testified, contained the names of 18 employees,
including Jeanette Barksdale, Jo Ann Bell, Ivra Brown,
Jessie Farmer, Annette Gibbs, Janell McCoy, Victoria
Selvie, and Letha Woodard, 8 of the remaining 13
employees who are involved in this proceeding Although
the acute problem concerned only nurses aides, Reckner
further testified that kitchen and laundry workers were also
affected by his directive RN's and LPN 's were
unaffected, Reckner stated , because they could not be
replaced at the time Osborne testified that on October 6
Reckner gave her a list of employees to be discharged
because of "not enough hour coverage and excessive
absenteeism," and that she was instructed by him "also
that probationary employees-that we were not to wait
any length of time, give them a few days to see how they
work, any other deficiencies that we had that we feel like
they're not doing, not to keep them, to bring in new help
and see if we couldn't get the place to where it should be
organized and be done properly to have the patients taken
care of and correct any complaints that we've had "
Thereafter, John E Hansan, the director of the Ohio
Department of Public Welfare , sent the Respondent a
second letter, dated October 18, 1971, which reads as
follows
This letter will serve written notice to you, that,
pursuant to relevant sections of 45 CFR 250, the Ohio
Department of Public Welfare is proposing to decertify
you from vendor payments made under Title XIX of
the Social Security Act effective November 3, 1971
The action is being taken for the following reasons
Nursing Services Persistent deficiencies exist in
the nursing staff Reports submitted on February
17, 1971 and August 12, 1971 by the survey
agency has reported shortages in R N 's, L P N 's
and aides The plan of correction provided by
Donald Reckner, Operations Manager of Avon
Convalescent Center, on October 7, 1971, shows
some improvement, but is still lacking 112 hours
weekly in nursing coverage
Physical Environment On April 12, 1971, the
president of the corporation, Gerald Keller,
advised the Acting Commissioner of Health in
Cincinnati that a sprinkler system was in the
process of being installed with a copy directed to
the Ohio Department of Health and to Mr John
E Hansan, Director of the Ohio Department of
Public Welfare
AVON CONVALESCENT CENTER, INC 713
However, on July 7, 1971, Russell K Dafler
visited the facility and found that no work had
started on that date Some preliminary work on
measurements followed this visit
Emergency outside lights were not installed as of
the July 7, 1971 visit
Emergency power to the heating plant was not
provided as of July 7, 1971 visit
The elevator was not installed Consultation was
given to Mr Reckner of the company manage-
ment team to set the elevator at the present site of
the fire escape on the south side of the courtyard
The fire escape would need to be moved
The nurse call system has been a persistent
deficiency since the requirements for Title XIX
were effective on January 1, 1970
Hot and cold running water was not provided in
one area where medications are prepared
Cubicle curtains were not procured by the July 7,
1971 visit
Lavatories have not been installed in the follow-
ing areas
End of Wing 3, Top Level
End of Wing 3, Bottom Level
Second Floor, Main Building
The isolation room has no bathing facilities
The examination room is occupied by a patient
Life Safety Code The folding doors were re-
moved but not replaced with other doors
There are no emergency outside lights
Section 5-11121-not in compliance, temporary
signs were put up-but have disappeared
Section 10-2331-interior finish not in compli-
ance
Section 10-2341-not in compliance for Title
XIX-must have sprinkler throughout home
Section 10-2351-not in compliance (fire rated
doors if sprinklers are installed)
Sanitation On the August 12, 1971 visit, flies
were noted on the water carafes and patients
drinking from same and flies on the food trays
The concensus is that a potential hazard to the health
and safety of the patients in the Avon Nursing Home
does exist
You have a right to a state hearing on this proposed
action Your rights under this due process hearing are
found at 45 CFR 205 10, except to the extent that 45
CFR 205 10 requires that the Ohio Department of
Public Welfare continue payments to you during the
pendency of your request for a state hearing Among
the rights provided you have the right to be represented
or to represent yourself personally, and the right to
have a state hearing if you request the same within
fifteen days of the mailing of this letter
However, we wish to make it clear that you do not have
a right to a due process hearing prior to the decertifica-
tion which we have proposed Thus, even if you request
a state hearing within fifteen days of the mailing of this
letter the Ohio Department of Public Welfare will
proceed to decertify you on November 3, 1971
Upon careful analysis, the Respondent's defense reveals
many infirmities and for that reason must be rejected As
already noted, Reckner testified that he furnished Osborne
with the names of 18 persons, including 8 of the employees
with whom this proceeding is directly concerned, whose
attendance records were particularly poor, and that he
directed that they be discharged The list of employees with
the hours they worked for seven consecutive payroll
periods, which has been referred to above, was received in
evidence as the Respondent's exhibit Also admitted in
evidence as an exhibit of the Respondent was a similar
sheet containing the names of employees and the hours
they worked not only for the seven biweekly payroll
periods on the first list, but also for seven successive
biweekly payroll periods beyond, up to and including that
ending on January 1, 1972-in other words, a continuation
sheet and purporting to demonstrate that the employees
selected for discharge by Reckner were in fact terminated
after October 6, 1971 From the lists it can be seen that,
although the 18 in question, for a number of biweekly
payroll periods, worked below the 80-hour per period used
by Reckner as the norm, there were other employees whose
attendance records were equally as poor and who neverthe-
less were not designated by him for discharge Indeed, in
questioning Reckner about the two lists and has selections,
counsel for the Respondent commented, "There appear to
be some pretty bad offenders here who are still there " This
confirms the results of my own examination of the lasts
Reckner's lack of consistency in his asserted selection of
employees for discharge detracts from his testimony and
reflects a weakness in the Respondent's defense
Furthermore, concentrating on the 10 employees singled
out by name by Reckner and who are not mentioned in the
complaint in Case 9-CA-6529, neither the first sheet nor
the continuation sheet shows that employee Turnbow was
discharged On the contrary, they show this employee was
still employed during the period ending January 1, 1972
Later in his testimony Reckner substituted for Turnbow,
"Garner," probably alluding to employee Geyer, as there is
no "Garner," but a "blue termination" slip introduced into
evidence by the Respondent reveals that Geyer was
discharged on October 1 Employee Cooper was not fired,
but quit Since Reckner testified that in some instances the
word "final," placed on the line on which the employee's
name and hours worked appear, meant "Quit," employees
French and Parrish also may have quit and not been
discharged It appears, moreover, that the last payroll
period in which French worked was that ending September
25 Employee Oglesby quit, and was not fired According
to the Respondent's records (a "call-off" sheet for October
1971 also received in evidence) Mary Graham on October
22 "never showed or called" and also may have quit, the
continuation sheet discloses that the last payroll period in
which she worked was that ending October 23, "no-call,
no-show," moreover, is a direct breach of the Respondent's
rules (see fn 12, infra) Employee Lawson continued
working into the period ending November 13 The absence
of a discharge confirming an alleged selection for firing,
and working as late as November, combined with the fact
that employees allegedly on Reckner's list were either not
discharged at all (Turnbow), or were fired before October 6
(Geyer and French), undermine the probative value of
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reckner's testimony that, besides the 8 employees con-
cerned in this proceeding, who were indeed discharged,
there were 10 others who were selected for severance and
all 18 were chosen on October 6 on the nondiscriminatory
basis of excessive absenteeism and tardiness Reckner
admitted that he knew of union organizational attempts at
the Respondent' s nursing home as early as June, when the
charge in Case 9-CA-6316 was filed, and that he then
discussed the matter with Gerald Keller, but denied that he
ever discussed union organizational efforts with Craft or
Osborne
The "meat axe" remedy purportedly devised by Reckner
runs counter to usual practices in employer-employee
relations To determine from figures alone that employees
should be severed, without considering that there may have
been accepted excuses, or other justification for absences
and tardiness, including the Respondent' s own lenient past
practices,12 or the lack of "final" or "last" warnings issued
to affected employees, is a curious procedure which does
not accord with normal management behavior
Reckner conceded, furthermore, that, in late September
1971, because of critical deficiencies other than that related
to the hours of work of nurses aides, merely correcting "the
scheduling of employees" would not have saved the
Respondent's accreditation under the Social Security Act
While he "hoped" the Respondent would not be decerti-
fied and he "didn't give up on trying to change," it was his
opinion, he admitted, that regardless of what alterations he
made in the scheduling of employees the Respondent was
"going to lose" its certification The record shows that the
Respondent was in fact decertified, although it has
appealed that determination, made some corrections of
deficiencies, and asked for variances as to others It
appears from the two letters and telegram sent to it by
Government regulatory bodies in September and October
1971 that on October 6 the question of adequate working
hour coverage by nurses aides should have been the least of
its concerns The plumbing repairs and physical changes
that had to be made to the home were so formidable as to
relegate to a subordinate position the matter of nursing
services And as to that matter, the lack of RN's and
L P N 's precluded compliance even if there had been
absolutely no problem regarding aides The letter of
October 18 from the Ohio Department of Public Welfare
points out that a plan of correction submitted by Reckner
on October 7, 1971 (which was not offered in evidence at
the hearing in this proceeding), "shows some improvement,
but is still lacking 112 hours weekly in nursing coverage "
That department's letter of September 7 demonstrates that
there were staffing shortages of 76 hours for R N 's, 292
hours for L P N 's, and 152 hours for nurses aides
Finally, as the record indicates, the Respondent's past
experience with nurses aides and kitchen and laundry
12 The Respondent s written Policies Rules and Regulations for Non
Professional Personnel set forth with respect to the subject of Absence
that Employees are required to call at least two hours in advance if unable
to work that day If it is necessary to be out more than one day you are
required to call daily and talk with the receptionist or night supervisor If
absent for illness for two consecutive days, a doctor s release is required
They also state in regard to the topic of Time Cards that ' The payroll
clerk is instructed to pay only the time that shows on the timecard
Employees who are repeatedly late will be docked accordingly
Nothing is said about discipline for excessive absence or lateness where the
employees furnished little reason for it to expect that
replacements would provide a work force so free of
absenteeism and tardiness that it would no longer have to
deal with that situation The alternative to accepting and
coping with this human condition, assuming of course
employees conduct themselves reasonably and present
reasonable explanations for their absence or tardiness,
would seem to be constant turnover and turmoil
From the foregoing facts, it appears, and I find, that the
Respondent 's major defense is implausible and unconvinc-
ing The Respondent in its brief urges that "Whatever the
reaction of the Company to the telegram of decertification
under Title XVIII it cannot be said that a reasonable
person faced with the same possibilities would not have
done the same thing" But it is precisely because I find,
msofar as the Respondent 's nurses aides and kitchen and
laundry employees are concerned , that a reasonable person
would not have done all that Reckner claims to have done,
that I cannot accept the chief defense interposed by the
Respondent
There is testimony by Osborne that between August 1971
and December 1971 some 60 employees of the Respondent
were "terminated " Osborne stated they were not all
terminated for absenteeism , but "for different occasions
[sic ] " The record simply does not show that these
employees were dismissed under circumstances compara-
ble to those surrounding the severances of the employees
specifically involved in the instant proceeding
Another general defense raised by the Respondent is that
it held "in-service" meetings, required by regulatory
agencies , at which the aides were informed , among other
things, that excessive tardiness or absenteeism would meet
with disciplinary action Minutes or outlines of six such
meetings in September and October 1971, purporting to
indicate by name the employees who were present at such
meetings , were introduced into evidence by the Respon-
dent All 14 employees named as discriminatory dischar-
gees in the complaint in Case 9-CA-6529 testified at the
hearing No employee asked about these meetings, knew of
them, or admitted attending them Osborne testified about
these meetings and qualified the minutes for admission
into evidence After stating she attended all six, she
conceded she was not present at three I find that none of
the employees concerned herein attended such meetings, if
they were in fact held, and therefore could not have been
warned through those channels about disciplinary action
for excessive absenteeism or tardiness 13
The Respondent strongly insists, however, that there is
no evidence it knew of the union activity of any of the 13
remaining employees at the time of discharge, and in the
absence of such knowledge the complaint as to each must
fall It is true that some of these employees testified that
they signed their union cards in secrecy and did not talk
rules are otherwise followed
13 I have also considered Osborne s testimony concerning warnings she
allegedly gave to certain of the 13 remaining dischargees about absences or
tardiness In each instance in which the dischargee denied receiving such
warnings I credit the denial and discredit Osborne s testimony My later
findings are based in part on this resolution of credibility I have already
indicated that Osborne was not a straightforward witness Her inconsistent
testimony about the minutes of in service meetings is further evidence of
that fact
AVON CONVALESCENT CENTER, INC 715
about the Union, but McCoy signed hers in the open, as
did another employee on the same occasion, and McCoy
spoke to friends about the Union while on the job Wanda
Allen mentioned to employee Graham that she was
"thinking about joining a union " Graham informed
Burwell that Allen, Barksdale, William, and one other
employee, "Lillian," had signed cards Burwell interrogat-
ed not only Graham, but also Allen and Barksdale, about
union activities There were considerable organizational
efforts by Hampton and by Brown Brown obtained as
many as 15 signed cards and went to 3 union meetings
Some other employees, like Brown, distributed union cards
and attended union meetings These activities of necessity
involved conversation and discussion, and enveloped a
substantial segment of the Respondent's work force
Employees who did not talk were no doubt talked about
The Respondent's small nonprofessional staff of about 38
employees has been mentioned before It is reasonable to
infer, as I do, that the Respondent secured fairly specific
information about the union activity of particular employ-
ees in view of the foregoing facts, and what has earlier been
established the Respondent's propensity for surveillance
of union activities, and the remarks of its supervisors in
effect admitting that the Respondent knew who had signed
union cards Moreover, the concentration of dismissals in
October, soon after the height of union activity in August
and September, justified in large part by an unacceptable
defense, and occurring in the ambience of unfair labor
practices and statements by supervisors indicating the
Respondent was bent on ridding itself of union adherents,
leads to the conclusion, which I reach, that the mass
discharges were generally intended to capture in their net
Local 47 members, whether or not the Respondent knew
definitely that any specific employee it selected for
severance was in fact a union partisan 14
Against the backdrop of the above findings and
conclusions, the discharges of each of the 13 remaining
employees will now be specifically considered, first the
discharges of the eight employees Reckner selected for
separation on October 6, and then the balance
Jeanette Barksdale was first hired by the Respondent in
November 1970 There was a break in her service, and she
apparently was rehired in June 1971 She was originally
employed as a nurses aide, but for some time before her
discharge worked in the kitchen and laundry For 1 mon_h
before her severance she cooked and did laundry work As
noted above, on September 8, 1971, she signed a Local 47
card she received from Ivra Brown, she later distributed
five or six cards which were returned to her signed, and she
attended two union meetings She was discharged at the
home on the night of October 7, 1971 Very early that
morning Burwell had indicated in a conversation with
14 In addition to the 13 employees alleged to have been discriminatorily
discharged, all in October and the 10 Reckner claims to have additionally
designated for discharge on October 6 the Respondent introduced
documentary evidence that 7 or 8 (Geyer is one) more employees were
dismissed that month Assuming that the 17 or 18 not named in the
complaint in Case 9-CA-6529 were not union adherents, there is no such
disproportion as to dictate a conclusion opposite to that I have reached
above Furthermore substantial doubt as to many of the 10 allegedly
selected for discharge by Reckner on October 6 as indicated before and the
absence of evidence showing that the additional 7 or 8 were dismissed in
circumstances that parallel those in which the 13 who are directly involved
Mary Graham, overheard by Wanda Allen, that she knew
Barksdale had signed a union card Burwell informed
Barksdale of her separation after she reported for work
Burwell also told her that she, Burwell, did not know why
she was fired and could do nothing about it The
Respondent purportedly discharged Barksdale for exces-
sive absenteeism on the instructions of Reckner on
October 6 Barksdale testified, and I find, that nothing was
ever said to her about absences or tardiness I find, under
all the circumstances alluded to above, including the
Respondent's antiunion stance and other unfair labor
practices, and the failure of its defenses,15 that the
Respondent discharged Barksdale on October 7, 1971,
because it knew she had engaged in union activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and (1) of the Act
Jo Ann Bell was employed by the Respondent as a
nurses aide from May 14, 1971, until her discharge on
October 7, 1971 As already indicated, on August 26, 1971,
she signed a union card she received from Ivra Brown She
was fired on Reckner's orders for claimed excessive
absenteeism 16 I credit her testimony that no one connect-
ed with the Respondent ever warned her about "being off
too often" or otherwise spoke to her about absenteeism
before her discharge On October 7, in answer to Selvie's
inquiry why she and Bell had been fired, Patton said "Well,
they know you all was in the union " I find, under all the
circumstances referred to above, including the Respon-
dent's antiunion stance and other unfair labor practices,
and the failure of its defenses, that the Respondent
discharged Bell on October 7, 1971, because it knew she
had engaged in union activity or believed she might have
done so, and that it thereby violated Section 8(a)(3) and (1)
of the Act
Victoria Selvie was employed by the Respondent as a
nurses aide from April 1971 until her discharge on October
7, 1971 On October 7, as indicated before, Patton told her
when she asked why she and Bell had been fired that "they
know you all was in the union " On August 29, 1971, Selvie
signed a Local 47 card she had received from Brown On
Reckner's instructions Selvie was fired for alleged excessive
absenteeism and tardiness I credit Selvie's testimony that
before her discharge she had never been spoken to by
anyone connected with the Respondent about being absent
or late I find, under all the circumstances adverted to
above, including the Respondent's antiunion stance and
other unfair labor practices, and the failure of its defenses,
that the Respondent discharged Selvie on October 7, 1971,
because it knew she had engaged in union activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and (1) of the Act
Jessie Farmer was employed by the Respondent as an aide
in this proceeding were severed (although I later find that not all 13 but 11
were unlawfully separated), reduce the proportion of presumably nonunion
employees to union employees even further
15 It should be noted that there was no reason at all for Reckner to select
Barksdale for discharge in order to comply with governmental regulations
for nursing services as Barksdale was not a nurses aide on October 6 and
had not been for some time before that date
is The blue termination slip introduced into evidence by the
Respondent mentions only excessive absenteeism by Bell , notwithstanding
Osborne s testimony that she was fired for that and tardiness
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from May 5, 1971, until her discharge on October 8, 1971
She signed a Local 47 card on September 5, 1971 She also
received her card from Brown I credit Farmer's testimony
that Osborne, on October 8, informed her she was
discharged and stated that the reason was that she "had
been absent too much " Farmer 's dismissal was at
Reckner's direction Farmer testified, and I find, that
before her severance she was never warned by anyone
connected with the Respondent about being absent too
frequently I accordingly find, under all the circumstances
referred to above, including the Respondent's antiunion
stance and other unfair labor practices , and the failure of
its defenses, that the Respondent discharged Farmer on
October 8, 1971, because it knew she had engaged in union
activity or believed she might have done so, and that it
thereby violated Section 8(a)(3) and (1) of the Act
Annette Gibbs was employed by the Respondent as a
nurses aide from May 6, 1971, until her discharge on
October 8, 1971 She signed a Local 47 card on September
8, 1971, after receiving it from Brown As found above,
about October 1, 1971, Gibbs overheard Burton's state-
ment to Angst that "There will be a lot of terminations
before a union gets in " Gibbs was dismissed by Osborne
on October 8 at the direction of Reckner The Respon-
dent's assigned reason (contained on Gibbs' "blue termina-
tion" slip) was excessive absenteeism I credit Gibbs'
testimony that she was never warned by anyone connected
with the Respondent about absences or tardiness Conse-
quently, I find, under all the circumstances mentioned
above, including the Respondent 's antiumon stance and
other unfair labor practices, and the failure of its defenses,
that the Respondent discharged Gibbs on October 8, 1971,
because it knew she had engaged in union activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and (1) of the Act
Letha Woodard was employed by the Respondent as a
nurses aide from April 28, 1971, until her discharge on
October 8, 1971 On September 4, 1971, she signed a Local
47 card she had obtained from Sarah Vales Woodard also
distributed a union card On the instructions of Reckner,
Craft fired her on October 8, informing her she had been
absent too much I credit Woodard's testimony that before
her dismissal no one connected with the Respondent ever
mentioned anything to her about absenteeism According-
ly, I find, under all the circumstances related above,
including the Respondent's antiumon stance and other
unfair labor practices, and the failure of its defenses, that
the Respondent discharged Woodard on October 8, 1971,
because it knew she had engaged in union activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and (1) of the Act
Janell McCoy was employed by the Respondent as a
nurses aide from June 23, 1971, until her discharge on
October 14, 1971 She signed a Local 47 card on August 19,
1971, after being solicited by Hampton while she was
eating lunch in the yard near the front entrance of the
home, and she thereafter spoke to friends about the Union
while she was at work At Reckner's direction Osborne
fired her on October 14 I credit McCoy's testimony that
Osborne informed her the reason for her dismissal was
"tardiness," and that before her discharge she had never
been warned by anyone connected with the Respondent
about being late I , therefore, find, under all the circum-
stances set forth above , including the Respondent's
antiumon stance and other unfair labor practices , and the
failure of its defenses , that the Respondent discharged
McCoy on October 14, 1971, because it knew she had
engaged in union activity or believed she might have done
so, and that it thereby violated Section 8(a)(3) and (1) of
the Act
Ivra Brown was employed by the Respondent as a nurses
aide from February 17, 1971, until her discharge on
October 21, 1971 As narrated above, Brown signed a
Local 47 card on August 25, 1971, upon being solicited by
Hampton while on her way home from work She attended
three union meetings and was successful in obtaining
signed cards from about 15 other employees Of the 14
employees named in the complaint in Case 9-CA-6529,
she was the most active union adherent Selected by
Reckner on October 6 for dismissal because of alleged
excessive absenteeism , there is no reliable evidence that she
had ever been warned before her discharge by anyone
connected with the Respondent that she had been absent
too frequently Insofar as the Respondent's asserted
defense of excessive absenteeism is concerned, I find it just
as insufficient to justify the severance of Brown as the
discharges of the other seven employees (Barksdale, Bell,
Selvie, Farmer, Gibbs, Woodard , and McCoy) singled out
for dismissal by Reckner on October 6, and I would
therefore come to the same conclusion I arrived at in their
cases that the Respondent's act of severance violated
Section 8(a)(3) and ( 1) of the Act But the Respondent sets
forth additional grounds for firing Brown Entered on her
"blue termination" slip as the "Reason for termination"
are "insubordination" and "improper conduct ," as well as
"excessive absenteeism "
Patton signed a "pink disciplinary" slip concerning
alleged improper behavior by Brown on October 20, 1971
The slip , introduced into evidence by the Respondent,
states, in substance, that Brown carried a lunch tray to a
patient who could not feed herself, and merely left it
without feeding the patient as Brown was supposed to do,
and that when Brown was asked why the patient was not
fed answered, "It's time she learned to feed herself
anyway " In her testimony Patton embellished this report,
claiming that she had talked to Assistant Director of
Nursing Burton and pointed out that she had had to ask
Brown to feed the patient, that Burton had said , "Well, I
had to ask her to feed her earlier ," and "she hasn't fed her
yet9", that "they" went into the patient's room to see if she
had been fed and the tray had been pulled by the patient
and had turned over on her , and that Brown told Patton
and Burton "It's not important that she be fed anyway
because she doesn 't eat " Patton also testified Brown said
the patient "could do it herself " Burton appeared as a
witness on the Respondent 's behalf, but she gave no
testimony corroborating that of Patton
Brown testified that she was not involved in the incident,
that no nurse ever asked her why she was not feeding a
patient, that at the time of the claimed event she was not
even working in the section of the home where it
supposedly took place , and that she was in the dining room
AVON CONVALESCENT CENTER, INC 717
when the episode allegedly occurred Brown flatly denied
ever having refused to feed a patient I have already found
Brown to be a credible witness concerning other events
and credit her testimony that she was not implicated in this
alleged incident Burton's failure to corroborate Patton's
testimony has also been taken into consideration in my
resolution of this conflicting testimony
Osborne testified that on October 21, 1971, she over-
heard Brown announcing to other employees in a loud
manner where the work schedule had been posted that day
that "she wasn't going to be pushed around, that they
weren't changing her shift, and so on " Osborne stated
Brown did not complain to her about the matter Osborne
further testified that other aides were objecting about
Brown's "carrying on," and that a floor nurse had reported
that Brown was not taking care of patients but was
"causing a commotion " Osborne also testified she heard
Brown swear, but Brown did not do so in her presence, that
Brown said " `This damn place' and a lot of different
things like that Just nonsense " Reckner was attending
special classes at Xavier University and, according to
Osborne, was called "to come over to see if things wouldn't
settle down and be quieted down " Osborne additionally
testified that Reckner amved at the nursing home about
noon, that Brown "didn't say anything and had quieted
down at that time, you know, nothing else had been said "
Reckner testified that he was called by his office in the
morning while he was at classes, and arrived about noon at
the nursing home, where Osborne told him Brown "was
causing some problems, and cursing, and that the other
employees had objected, and the staff was quite concerned
about it", and that he looked for and found Brown and "at
that time there seemed to be really no apparent problem "
When Brown clocked out that day her timecard was
"pulled " The next morning Osborne told Brown of her
discharge, showing her the Patton "pink slip" of October
20, on which Reckner had written that Brown was
"terminated" for violation of a "nursing home policy"
identified by numbers (but never explained in the record),
and that the violation called for "automatic termination "
Brown testified, however, that about a week before her
discharge she was transferred from one section of the home
to another, that upon her asking Director of Nursing
Angst why she was transferred, Angst said, among other
things, "All they want you to do is quit, but if I was you I
wouldn't give them that much satisfaction", and that she,
Brown rejoined, "I'm not," and continued working until
her termination As noted before, Angst was not called as a
witness by the Respondent, and Brown's testimony about
this conversation stands uncontradicted in the record
Brown additionally testified that, with respect to the work
schedule posting incident, she learned from looking at the
schedule that her working hours had been changed from
the day to the night shift, and that she asked Patton if she
knew why her schedule had been changed, and that Patton
answered "no " She also testified that she then inquired of
Osborne why her hours had been changed, that Osborne
answered, "I don't know I had orders to do so," that she
replied, "Well, no one ever asked me if it was convenient
for me to work that shift," that Osborne responded, "Well,
I don't know I had orders to do it," that at that point she
said, "Well, you might as well fire me because I am not
working it," and "I don't give a damn," and that she then
"turned and walked downstairs on the floor " Brown
denied seeing Reckner that day Brown further testified
that the next day she did not find her timecard in the rack
when she reported for work and asked Osborne if there
were a "message" for her, that Osborne replied "no," that
Brown said she would remain until "someone tells me
something", that Osborne left and a guard employed by
the Respondent later asked Brown to go to the office, and
that Osborne there told Brown "Oh, I didn't know this was
here, I just found this," and showed her the Patton "pink
slip" of October 20 with Reckner's notations Brown
additionally testified that she told Osborne "This isn't the
reason that I am being fired, and you know that this is not
the reason I am being fired, that Osborne "just looked at"
her, that Brown then said, "Well, you'll probably see this
black face again and some more of the others that walked
out the door," that the guard, who was present, remarked,
"Well, we could use that as a threat," that she replied,
"No, you can't, because it is not a threat", and that she
then left the nursing home 17
For reasons already explained in regard to Brown's
credibility generally and in other respects, I credit her
testimony about the events leading up to the change of her
working hours, what happened the day the Respondent
"pulled" her timecard and actually separated her, and what
occurred the next when she was informed by Osborne of
her discharge
Brown, contrary to the Respondent's contention, did not
refuse to feed a patient In the light of Angst's statements
to Brown, and the Respondent's past unlawful conduct
and the findings I have made above of its knowledge of
and intentions concerning its employees who engaged in
union activity, particularly as those findings relate to
Brown, who was an energetic Local 47 protagonist, I find
that by the changes in Brown's work place and working
hours the Respondent consciously set out to make Brown
so unhappy in her work as to provoke her and cause her to
quit 18 Neither from Brown's testimony, nor even from that
of Osborne, as to Brown's "cursing" (Osborne specifically
mentioned only Brown's use of the word "damn"), or other
behavior on the day Brown complained of the change of
her working hours and was fired, do I find that her
conduct, especially in view of the fact that she was
deliberately provoked, was so inexcusable as to cause the
Respondent to discharge her Nor do I find that Brown
actually quit voluntarily And Brown's testimony, which I
have credited, concerning her exit interview with Osborne
the next day does not show that she then acted in an
indefensible manner I am convinced that none of the three
17 Osborne testified to a somewhat different version of this exit
interview
18 In making this finding I have considered but rejected the
Respondents argument that work schedule alterations were not only
directed to Brown, but also to other employees to take care of the changes
necessitated in implementing Reckner s determination of October 6 Angst s
remarks alone warrant a refusal to accept this argument, which is based on
Osborne s general testimony about the personnel procedures and changes in
schedules which followed Reckner s October 6 decision to fire employees en
masse and to hire replacements His decision moreover , was as has been
found, improperly motivated
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons put forward by the Respondent for its discharge of
Brown actually motivated it to dismiss her from its
employment I conclude and find, under all the circum-
stances referred to above, including the Respondent's
antiunion stance and other unfair labor practices, and the
failure of its defenses, that the Respondent discharged
Brown on October 21, 1971, because it knew she had
engaged in union activity or believed she might have done
so, and that it thereby violated Section 8(a)(3) and (1) of
the Act
Charlotte William was employed by the Respondent as a
nurses aide from on or about September 16, 1971, until her
discharge on October 7, 1971 As found above, she signed a
Local 47 card on September 20, 1971, after receiving it
from Hampton About October 1, she was in the home in a
group with other employees when Osborne paused to
observe them, and a day later Patton stated that Osborne
had seen them and was "uptight" or "mad" because she
believed they had been talking about a umon Very early in
the morning of October 7 Burwell had learned from Mary
Graham that William had signed a union card On October
7, employee Wanda Allen called William and informed her
that she had been fired William told Allen she would
verify her discharge herself That night, she credibly
testified, and I find, she called Burwell, under whom she
was directly working, and Burwell confirmed that she had
been dismissed, and advised her that Craft had communi-
cated with Burwell and told Burwell that William "was
terminated and several others were going to be terminated
too " On the next day, as William further credibly testified,
and I find, she called the home again to speak to Craft, but
Osborne answered, told her Craft "wasn't in," and replied
to her question why she was terminated that "she
[Osborne] didn't owe [William] an explanation, and
said besides [William] hadn't been there 45 days any-
way " 19
Burwell testified that during William's employment a
patient claimed she had asked for help from William and
did not receive it, "The nightstand wasn't as clean one
morning as it should have been", and William on one
occasion from 7 45 "kind of killed time until eight
o'clock " Burwell also testified she told Osborne of these
matters, which occurred at different times According to
Osborne, Osborne prepared three "pink slips" based on
Burwell's reports, and these were the reasons William was
fired, after Osborne went over personnel records to
effectuate Reckner's instructions on October 6 not to
retain any unsatisfactory probationers A "blue termina-
tion" slip concerning William states "Probation Unsatis-
factory"
Burwell admitted, however, that she did not speak to
William about the alleged mghtstand incident or complaint
from the patient who did not receive requested help, nor is
there any evidence that she protested to William about her
claimed 15-minute "killing of time " Burwell also testified
on cross-examination that, with respect to William's failure
to satisfy a patient's request, the patient told Burwell that
"she wanted a glass of milk and didn't get it " The three
"pink slips" to which Osborne testified were not offered in
evidence Also, Osborne testified that William was not
furnished with copies of such slips I find it difficult to
believe that a supervisor would not inform an employee of
her dereliction of duty at the time of the incident
particularly if the matter were serious enough to be
permanently entered on her record of employment
Inasmuch as the Respondent produced other "pink slips"
at the hearing, I fail to understand why it did not so in
William's case Burwell, moreover, did not even speak to
William to verify whether she had in fact ignored a
patient's demand And the other two episodes, if indeed
they occurred, appear to be rather trivial Finally,
Osborne's refusal on October 8 to tell William why she had
been fired hardly strengthens the grounds on which the
Respondent now relies The Respondent's asserted reasons
for discharging William, I conclude, are lacking in
substance and cogency
I find, under all the circumstances set forth above,
including the Respondent's antiumon stance and other
unfair labor practices, and the failure of its defenses, that
the Respondent discharged William on October 7, 1971,
because it knew she had engaged in umon activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and (1) of the Act
Wanda Allen was employed by the Respondent as a
nurses aide from on or about September 10 or 14, 1971,
until her discharge on October 7, 1971 As related above,
she signed a Local 47 card on October 1, 1971, after being
solicited by Hampton Allen had informed employee Mary
Graham that she "was thinking of joining a umon," and
several hours before Allen's discharge on October 7,
Graham told Burwell that Allen had signed a union card
Graham's conversation with Burwell occurred after Allen
had earlier reported for work for that same shift, found her
timecard missing, but had been supplied with another by
Burwell and allowed to continue to work Immediately
following the conversation between Graham and Burwell,
Burwell asked Allen if she had signed a card and told her if
she did she would be discharged, "because they are going
to fire a lot of girls around here because of the union "
About 7 30 a in on October 7 Patton told Allen that Craft
wanted to see her Allen went to his office and he had her
punch out She was then informed by him that she "was
terminated " He told her she was not doing her work and
he could not tell her "who said it " She responded that she
had "been doing her work, because Mrs Burwell told me I
was doing a good fob " He repeated that she was
"terminated" and she left 20 Allen testified credibly, and I
find, that she was told she "was doing a good job, on
several occasions I would mop floors and things like that,
which Burwell told me we weren't supposed to do "
A "blue termination" slip affecting Allen was received in
evidence It states "Probation Unsatisfactory (No Call-
-No Show) (10-1) " Osborne testified "Wanda Allen was
terminated on absenteeism She had called Georgia
"Under the Respondents policies and rules referred to above a witness all of which have been previously mentioned
employees were hired for a probationary period of 45 days Osborne 20 These findings regarding Allen s exit interview with Craft are based on
testified to a different version of this call (See the discussion of the her undenied and credible testimony Craft as noted before was not called
discharge of Mary Allen infra) I have credited William s testimony based by the Respondent as a witness
on her favorable demeanor on the stand and on Osborne s shortcomings as
AVON CONVALESCENT CENTER, INC 719
[Burwell] on a Friday night and told her she'd be in to
work and she never showed up And she had missed the
week before-called off the week before that She was on
her probationary time, also " Burwell testified that Wanda
Allen "called in and said she would be in but she would be
late", and that "she never came " Burwell conceded that
she had supplied Allen with a timecard when Allen had
reported for the night shift on October 6
Allen denied that she had an unreported absence on
October 1 She further testified that she called the home on
one occasion (the date of which she could not remember)
to say she would not be in because she had to visit her
husband in the hospital
I credit Allen's testimony, including her denials, having
already discredited the testimony given by both Burwell
and Osborne in a number of other respects Based on
Allen's credited testimony, she did not have an unreported
absence on October 1, she called off properly on one
occasion (the date of which she could not recall) because of
the illness of her husband, the only matter mentioned to
her by Craft when she was discharged on October 7 was
that "she was not doing her work", and she was
complimented by Burwell for performing her work well
Furthermore, even assuming, contrary to the facts I have
found, that Allen on October 1 did not "call or show"
(Burwell and Osborne indicate she did "call" to say she
would be late, but did not "show"), the Respondent waited
6 days to act upon this alleged breach of its rules, the
excuse apparently being that action was later taken
because of Reckner's October 6 instructions to weed out
undesirable probationers But the legality of the intention
behind those instructions has already been found wanting
I find, under all the circumstances heretofore mentioned,
including the Respondent's antiumon stance and other
unfair labor practices, and the failure of its defenses, that
the Respondent discharged Wanda Allen on October 7,
1971, because it knew she had engaged in union activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and (1) of the Act
Mary Allen, Charlotte William's sister, was employed by
the Respondent as a nurses aide from September 21 until
her discharge on October 8, 1971 She obtained a Local 47
card at the union's Vine Street office and signed it on
September 22, 1971 As found above, about October 1
Osborne observed her in a group with other aides, and the
next day Patton declared that Osborne had seen them and
was "uptight" or "mad" because she believed they had
been discussing a union
On October 8, William called Allen and told her that she,
William, had been terminated Allen testified that she then
called the home, that she spoke to Osborne and asked if
she was terminated, that Osborne answered "yes", that she
said "thank you" and inquired when she was "supposed to
pick up her check", and that Osborne replied "On
payday"
Burwell testified that Allen called her and informed her
that she was scheduled to work that night and would not
"be back," that since "they had let her sister go, she
decided that she just wouldn't come back " Burwell also
testified that Mary Allen's timecard, to the best of her
knowledge , had not been "pulled" and that "she was on
the schedule , too " Osborne testified that Burwell informed
her that Mary Allen had called Burwell "and told her that
she heard that her time card had been pulled and she
wouldn't be back anymore " Osborne at one point also
testified that Mary Allen later called her and "wanted to
know why her time card had been pulled, or why she was
terminated", that she, Osborne , told her "we were
terminating a lot on probationary period, and she got very
nasty and very sarcastic on the phone", and that Mary
Allen wanted a reason for her termination and that
Osborne told her she "did not have to give her a reason,
and hung the phone up " Later in her testimony Osborne
stated Mary Allen did not call her, that "Charlotte William
called me," indicating that the above telephone conversa-
tion was had with William On cross-examination Mary
Allen denied talking to Burwell and insisted her telephone
conversation (as related before) was with Osborne
I credit Mary Allen's testimony, having in other respects
already credited her testimony and discredited that of
Burwell and Osborne Based on Allen 's testimony I find
that she did not voluntarily leave the Respondent's
employ, but that she was discharged without justification
together with the other employees severed in October I
therefore also find , under all the circumstances mentioned
above , including the Respondent 's antiunion stance and
other unfair labor practices , and the failure of its defenses,
that the Respondent discharged Mary Allen on October 8,
1971, because it knew she had engaged in union activity or
believed she might have done so, and that it thereby
violated Section 8(a)(3) and ( 1) of the Act
Sarah Vales was employed by the Respondent as a
nurses aide from July 1971 until her separation on October
16, 1971 On September 12, 1971, she signed a Local 47
card she received from Hampton Thereafter, Vales
successfully solicited other employees, including Woodard,
to join the Union , and attend union meetings
The Respondent contends it took Vales off its employ-
ment roster for not calling or showing when she was
scheduled to work the night shift beginning the night of
Saturday, October 16, and ending the next morning, on
October 17 Supporting its contention are its records (the
"call off" sheet for October 1971, introduced in evidence,
states that on "10-16," for the time " 1130-8 00," there was
"No Show, No Call" for "S Vales ", a timecard, also
introduced in evidence , indicates that Vales' last working
day was the night shift commencing on a Friday night,
October 15, and terminating Saturday morning, and a
"blue termination" slip for Vales, likewise received in
evidence , includes as the "Reason for termination," "No
Call-No Show" on October 16, 1971), and Vales'
admissions that she did not report for work on 1 day,
which she, however , designated as October 15, and on that
day not only did she not "come in," but she also did not
"call in " This was a clear breach of the Respondent's
punted and publicized policies and rules Moreover, the
Respondent acted at once to remove her from its
employment lists
Vales, insisted, however, that on the morning of October
16, a Saturday, and according to her the day following her
failure to call or show , she reported for work and, finding
no timecard , spoke to Reckner She further testified that
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she informed him she had no timecard, that he replied
there was nothing he could do, that "you can't work the
hours and everything, and I thought you had quit," that
she then said, "Well, I didn't call in stating that I had
quit," that he repeated what he had said before, and that
at this juncture she "walked out "22 Reckner squarely
denied talking to Vales, testifying that it was not usual for
him to be at the nursing home on weekends
It is quite clear from the Respondent 's records and all of
Vales' testimony that the alleged conversation with
Reckner could not have taken place the morning of
Saturday, October 16 Vales stated that she saw Reckner
on October 16, the morning following her failure to report
for work The Respondent's records show, however, and I
find, that she worked from the night of Friday, October 15,
to the morning (8 04 am) of Saturday, October 16 In
short, contrary to her testimony, she worked during
October 15 and was at the home the morning of October 16
without a hiatus Furthermore, as Vales admitted on cross-
examination, in a preheanng statement she gave to the
General Counsel she had fixed the date of her dismissal as
October 8 While the matter may seem to be insignificant,
relating merely to dates, I scarcely feel myself constrained
to treat it lightly and select a third date as the one on which
Vales may have had her conversation with Reckner, in
view of his testimony that he did not speak to her at all,
and not on a weekend when it was not usual for him to be
at the home From the above contradictions in Vales'
testimony and her demeanor on the witness stand, I am
persuaded that her testimony is inaccurate and unreliable
and I do not credit it I do not find that she spoke to
Reckner after she failed to call or show Accordingly, I
conclude that there is insufficient evidence to establish that
the Respondent took action against Vales in violation of
Section 8(a)(3) and (1) of the Act Indeed, even had I
credited Vales' testimony as to her conversation with
Reckner, there would be serious doubt the Respondent
contravened the law, for she plainly violated its known
"call off" rules, it acted at once to strike her from its
employment rolls, and, though the record shows it has
rehired other employees after a separation, there is no clear
indication that it has done so immediately following a
plain dereliction of duty that underlies a separation
Linda Cruz was employed by the Respondent as a
kitchen worker until her discharge on October 18, 1971
Cruz testified that she was employed on September 7, 1971,
but the date on her employment application, received in
evidence, shows that she was hired on October 4, 1971, and
a timecard, also received in evidence, appears to confirm
that her starting date for the Respondent was October 4
Cruz also testified that the date, October 8, 1971, inserted
in her Local 47 card, was "my mistake," and that she
actually signed the card on September 10, 1971, when she
obtained it from Ivra Brown at a union meeting Cruz was
discharged on October 18 for the reason, conveyed to her,
that she had been late three times during her probationary
period Two timecards received in evidence reveal that she
had been tardy on three occasions, although Cruz insisted
on cross-examination that she had been late only once
22 Vales also testified that after she signed her Local 47 card Craft
several times changed her working hours over her protests, and that this
While testifying Cruz seemed to be a confused and
unsure witness Her testimony itself also lacks clarity and
certainty I accept the Respondent 's records concerning the
commencement of her employment and her tardiness It
thus appears that during her probation and in a brief 2-
week period of employment-October 4 to 18-Cruz was
tardy three times In fact , on 3 of a total of only 11 working
days she reported late for her shift The Respondent
promptly discharged her on the third occasion In the short
interval involved there was no condonation or acceptance
of her poor work habits The Respondent had reason to
expect that , if at the start of her employment , Cruz was not
conscientious in her work , her future performance would
be even worse In these circumstances , I find that the
General Counsel has not sustained his burden of establish-
ing by a preponderance of the credible evidence that the
Respondent discharged Cruz because of her known or
suspected union activity Consequently, I do not find that
the Respondent violated the Act by her dismissal
Upon the foregoing facts and the entire record, I make
the following
CONCLUSIONS OF LAW
1 The Respondent , Avon Convalescent Center , Inc, is
and at all material times has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act
2 National Union of Hospital and Nursing Home
Employees , Local 1199H, an affiliate of Retail, Wholesale,
Department Store Union , AFL-CIO, and Service, Hospi-
tal, Nursing Home and Public Employees Union, Local 47,
Service Employees International Union, AFL-CIO, are
and at all material tunes have been labor organizations
within the meaning of Section 2(5) of the Act
3 The Respondent violated Section 8(a)(3) of the Act
by discharging Mary Allen, Wanda Allen, Jeanette
Barksdale , Jo Ann Bell, Ivra Brown , Jessie Farmer,
Annette Gibbs, Icilda James, Janell McCoy, Victoria
Selvie, Charlotte William, and Letha Woodard because it
knew or suspected that they were members of Local 47 or
had engaged in other union activity
4 The Respondent violated Section 8(a)(1) of the Act
by the above-described discharges , by engaging in surveil-
lance of a union meeting , union solicitation , and the union
activities of its employees, by maintaining an unduly broad
rule against union solicitation, by threatening its employ-
ees with discharge and otherwise intimidating them with
respect to their joining a union, and by interrogating
employees concerning the union membership of its
employees
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
6 The Respondent has not committed any other unfair
labor practices alleged in the complaint in Case
9-CA-6529
THE REMEDY
Having found that the Respondent has engaged in
made it difficult for her to obtain a babysitter
AVON CONVALESCENT CENTER , INC 721
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and from like or related
invasions of the employees' Section 7 rights, and that it
take certain affirmative action designed to effectuate the
purposes and policies of the Act
It has been found that the Respondent discharged Mary
Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra
Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell
McCoy, Victoria Selvie, Charlotte William, and Letha
Woodard in violation of Section 8(a)(3) of the Act It will
therefore be recommended that the Respondent offer these
12 employees immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings suffered by
reason of their discharges by payment of a sum equal to
that which they normally would have earned, absent the
discharges, from the date of the discharge to the date of the
offer of reinstatement, less net earnings during such period,
with backpay computed on a quarterly basis in the manner
established by the Board in F W Woolworth Company, 90
NLRB 289 Backpay shall carry interest at the rate of 6
percent per annum as set forth in Isis Plumbing & Heating
Co, 138 NLRB 716 It will be additionally recommended
that the Respondent preserve and, upon request, make
available to the Board, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary and useful to determine the
amounts of backpay due and the rights of reinstatement
under the terms of this recommended Order
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 23
ORDER
The Respondent, Avon Convalescent Center, Inc,
Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Discharging its employees because of their known or
suspected union membership or other union activities
(b) Engaging in surveillance of union meetings, union
solicitation, or the union activities of its employees
(c) Maintaining a rule forbidding employees from
engaging in union solicitation during their nonwork time in
any area of its premises
(d) Threatening its employees with discharge or other-
wise intimidating them with respect to their joining a
union
(e) Interrogating employees concerning the union mem-
bership of its employees
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action which will
effectuate the policies of the Act
(a) Offer Mary Allen, Wanda Allen, Jeanette Barksdale,
Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs,
Icilda James, Janell McCoy, Victoria Selvie, Charlotte
William, and Letha Woodard immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
suffered by reason of their discharges by the Respondent
in the manner set forth in the section hereof entitled "The
Remedy "
(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
relevant and necessary to the determination of the backpay
due and the rights of reinstatement provided under the
terms of this recommended Order
(c) Notify Mary Allen, Wanda Allen, Jeanette Barksdale,
Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs,
Icilda James, Janell McCoy, Victoria Selvie, Charlotte
William, and Letha Woodard in the event that they are
now serving in the Armed Forces of the United States, of
their right to full reinstatement, 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
(d) Post at its nursing home in Cincinnati, Ohio, copies
of the attached notice marked "Appendix "24 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by the Respondent's
representative, 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 the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith 25
IT IS FURTHER ORDERED that the complaint in Case
9-CA-6529 be dismissed insofar as it alleges that the
Respondent violated the Act in any respect not found
herein
23 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
24 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
25 In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read Notify said Regional Director in
writing, within 20 days from the date of this Order what steps 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 NOT discharge our employees because of
their known or suspected membership in a union or
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other union activities protected under Section 7 of the
National Labor Relations Act
WE WILL offer to Mary Allen, Wanda Allen,
Jeanette Barksdale , Jo Ann Bell, Ivra Brown, Jessie
Farmer, Annette Gibbs, Icilda James, Janell McCoy,
Victoria Selvie, Charlotte William, and Letha Woodard
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings suffered as a result
of their discharges by us
WE WILL NOT engage in surveillance of union
meetings, union solicitation or the union activities of
our employees
WE WILL NOT maintain a rule forbidding employees
from engaging in union solicitation during their
nonwork time in any area of our premises
WE WILL NOT threaten our employees with discharge
or otherwise intimidate them with respect to their
joining a union
WE WILL NOT interrogate employees concerning the
union membership of our employees
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act
AVON CONVALESCENT
CENTER, INC
(Employer)
Dated By
(Representative) (Title)
We will notify immediately Mary Allen, Wanda Allen,
Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie
Farmer, Annette Gibbs, Icilda James, Janell McCoy,
Victoria Selvie, Charlotte Williams, and Letha Woodard, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 2407, 550 Main Street , Cincinnati , Ohio 45202,
Telephone 513-684-3686