Beverly Health & Rehabilitation Services

National Labor Relations Board - Board Decisions

Sep 27, 2000

332 N.L.R.B. 347 (N.L.R.B. 2000)

BEVERLY HEALTH & REHABILITATION SERVICES 347
Beverly Health and Rehabilitation Services, Inc. and
its wholly owned subsidiary, Beverly Enter-
prises–Pennsylvania, Inc. d/b/a Grandview
Health Care Center and Service Employees In-
ternational Union, Local 585, AFL–CIO, CLC

Beverly Health and Rehabilitation Services, Inc. and
its wholly owned subsidiary, Beverly Enter-
prises–Pennsylvania, Inc. and its Pennsylvania
Facilities and Service Employees International
Union, AFL–CIO, CLC for its Locals 585, 668
and District 1199P

Beverly Health and Rehabilitation Services, Inc. d/b/a
Grandview Health Care and Service Employees
International Union, Local 585, AFL–CIO

Beverly Health and Rehabilitation Services, Inc. and
its wholly owned subsidiary, Beverly Enter-
prises–Pennsylvania, Inc. d/b/a Grandview
Health Care and Service Employees Interna-
tional Union, Local 585, AFL–CIO

Beverly Health and Rehabilitation Services, Inc. and
its wholly owned subsidiary, Beverly Enter-
prises–Pennsylvania, Inc. d/b/a Caledonia
Manor and Pennsylvania Social Services Union
Local 688 a/w Service Employees International
Union, AFL–CIO

Beverly Enterprises–Pennsylvania, Inc. and its Penn-
sylvania Facilities and Service Employees Inter-
national Union, AFL–CIO, CLC, for its Locals
585, 668 and District 1199P

Beverly Health and Rehabilitation Services and its
Pennsylvania Facilities and Service Employees
International Union, AFL–CIO, CLC, for its
Locals 585, 668 and District 1199P. Cases 6–
CA–27342, 6–CA–27453, 6–CA–27581, 6–CA–
27731, 6–CA–28151, 6–CA–28394 (portion
thereof), 6–CA–28623, 6–CA–28624, and 6–CA–
28760 (formerly 5–CA–26764)
September 27, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On October 24, 1997, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The General
Counsel filed exceptions and a supporting brief; and Re-
spondents Beverly Health and Rehabilitation Services,
Inc. (BHR) and Beverly Enterprises–Pennsylvania, Inc.
(BEP) filed exceptions, a supporting brief, and an an-
swering brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 as modi-
fied, and to adopt the recommended Order as modified.3
1. The General Counsel excepts to the judge’s dismissal
of the 8(a)(3) allegations concerning the suspensions and
discharge of employee Denise Foltz. Assuming arguendo
that the General Counsel established a prima facie case
that Respondent BEP had an unlawful motive for the dis-
ciplinary action, we find, as did the judge, that the Re-
spondent met its Wright Line4 burden of establishing that it
would have disciplined Foltz in any event “because [it]
reasonably believed that she continued to engage in union

1 The General Counsel and the Respondents have excepted to some
of the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In adopting the judge’s finding that Respondent BEP’s suspension of
employee Oneita Say violated Sec. 8(a)(1) of the Act, we find it unnec-
essary to rely on the fact that Administrator Tamara Montel and Direc-
tor of Nursing Angela Huffman did not speak directly to the employees
who provided statements concerning the events that led to Say’s sus-
pension and were not aware of the circumstances under which the
statements were given.
We note that Caterpillar, Inc., 321 NLRB 1178 (1996), cited by the
judge in his decision, subsequently was vacated pursuant to a settle-
ment by order dated March 19, 1998.
We agree with the judge, in rejecting the Respondents’ affirmative
defense based on Jefferson Chemical Co., 200 NLRB 992 (1972), that
“Jefferson Chemical is not meant to apply . . . where a respondent is
involv[ed in] litigation spanning several years and the General Counsel
pursues the litigation in reasonable, self-contained segments.” The
General Counsel’s decision to litigate this case separately from the
previous cases was well within his prosecutorial discretion, and does
not require dismissal of the complaints in this case. The Board has
made it clear that it will not dismiss a complaint, under Jefferson
Chemical, for failure to consolidate with a previous case, unless it
involves an attempt to litigate the same act or conduct as violations of
different sections of the Act, or to relitigate the same charges in differ-
ent cases, neither of which is involved here. See Service Employees
Local 87 (Cresleigh Management), 324 NLRB 774, 775–776 (1997).
2 We note that no exceptions were filed to the judge’s dismissal of
the 8(a)(1) allegation concerning the Respondents’ Beck letters to em-
ployees; dismissal of the 8(a)(3) allegation concerning employee
Robert Reed; finding of an 8(a)(5) violation for changing the licensed
practical nurses’ job descriptions and job duties at the Grandview facil-
ity, without bargaining with the Union; and rejection of the Respon-
dents’ 10(b) laches, and improper filing or service affirmative defenses.
3 In accordance with our decision in Excel Container, Inc., 325
NLRB 17 (1997), we shall change the date in par. A,2(g) of the judge’s
recommended Order from June 21 to May 5, 1995, and in par. B,2(f) of
the judge’s recommended Order from June 21, to June 1, 1995, the date
of the Respondents’ first unfair labor practices, respectively.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
332 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
activity during worktime,” and, thus, she repeatedly vio-
lated the Respondent’s lawful rules prohibiting solicitation
during working time.
Having found that Foltz was discharged for violating
the Respondent’s lawful no-solicitation rules, we find it
unnecessary to pass on the validity of other reasons the
Respondent gave for the discipline, including the claim
that Foltz violated Caledonia Manor’s disciplinary rule
1.6. The judge credited testimony that Caledonia Manor
maintained a rule 1.6 that was worded differently from
the rule in effect at the rest of the Respondent’s facilities.
The complaint alleged only that the rule as it was worded
at the rest of the Respondent’s facilities was unlawful,
and, thus, did not place in issue the legality of the rule in
effect at Caledonia Manor.5 Nor was the legality of the
Caledonia Manor rule fully litigated at the hearing. Ac-
cordingly, we do not pass on the validity of the rule that
was in effect at Caledonia Manor.
2. The Respondents promulgated and maintained two
work rules alleged, and found by the judge, to violate
Section 8(a)(1) of the Act. Rule 1.6, set forth above, bans
the making of false or misleading statements.6 Based on
well-established precedent, which the Board and the D.C.
Circuit Court of Appeals have recently reaffirmed, we
adopt the judge’s finding that rule 1.6 was unlawful. La-
fayette Park Hotel, 326 NLRB 824, 828 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999). We need deal only with
rule 1.4, which prohibits “[r]efusing to cooperate in the
investigation of any allegation of patient (resident) ne-
glect or abuse or any other alleged violation of company
rules, laws, or government regulations.”
In finding rule 1.4 unlawful, the judge relied on Cook
Paint & Varnish Co., 246 NLRB 646 (1979), enf. denied
648 F.2d 712 (D.C. Cir. 1981). In that case, the Board
majority7 held that, while an employer may lawfully
question employees in an investigation prior to disci-
pline, it may not compel an employee to answer ques-
tions once disciplinary action is taken, the grievance ma-
chinery is activated, and the dispute is to be submitted to
arbitration. Accordingly, under this precedent, an em-
ployee has a Section 7 right to refuse to cooperate in
building a case against a fellow employee once discipline

5 The complaint alleges as unlawful rule 1.6 which is in effect at the
Respondents’ facilities other than Caledonia Manor. That rule pro-
vides:
Making false or misleading work-related statements concern-
ing the company, the facility or fellow associates.
At Caledonia Manor, the rule 1.6 in effect provides:
Making false defamatory, or malicious statements about a resi-
dent, associate, supervisor or the company.
6 See fn. 5.
7 Chairman, then Member Truesdale issued a concurring opinion.
is imposed and an actual labor dispute is underway
through resort to arbitration.
Examining rule 1.4 in light of this precedent, the judge
determined that an employee reading the rule in a “com-
mon sense manner” would reasonably conclude that he
would risk discipline by exercising the right to refuse to
cooperate in building a case against a fellow employee in
a pending arbitration. The judge concluded that the plain
language of rule 1.4 would cover the postdiscipline,
prearbitration context. He, thus, found that the rule was
overbroad to the extent it prohibits employees from
freely exercising the right set forth in Cook Paint.
Rule 1.4 does not expressly apply to the investigation
of a grievance that is pending arbitration, and there is no
evidence that it has been applied in that context. The
judge, nevertheless, concluded that it could reasonably
be interpreted to apply in that context, and, thus, that the
rule is overbroad and violates Section 8(a)(1). We need
not pass on this conclusion, however, because we con-
clude that the maintenance of rule 1.4 violates Section
8(a)(1) without regard to the Cook Paint rationale relied
on by the judge.
The rule compels employees to cooperate, or risk disci-
pline, in the investigation of “any . . . violation of . . . laws,
or government regulations.” By its plain language, the rule,
therefore, clearly applies to the investigation of unfair labor
practice charges. In Johnnie’s Poultry Co., 146 NLRB 770,
774–776 (1965), enf. denied 344 F.2d 617, 619 (8th Cir.
1965), the Board held that an employer violates Section
8(a)(1) of the Act if it questions employees about alleged
unfair labor practices without giving them specific assur-
ances, including an assurance that their cooperation is
strictly voluntary. “[I]n Johnnie’s Poultry the Board recog-
nized that an employer’s interviewing of employees in
preparation for litigation has a pronounced effect on the
exercise of Section 7 rights, which includes protection in
seeking vindication of those rights from employer interfer-
ence, restraint, or coercion.” Bill Scott Oldsmobile, 282
NLRB 1073, 1074 (1987).8
8 Accord: Standard-Coosa Thatcher Carpet Yarn Div. v. NLRB, 691
F.2d 1133, 1141 (4th Cir. 1982), cert. denied 460 U.S. 1083 (1983).
(Johnnie’s Poultry recognizes “that a significant risk of coercion arises
when an employer questions employees about a union without inform-
ing them that they may, with impunity, decline to respond.”) Although
the Eighth Circuit Court of Appeals denied enforcement in Johnnie’s
Poultry itself, and other courts have not always approved of the Board’s
application of the Johnnie’s Poultry standards to specific situations,
those courts have denied enforcement because they preferred an “all the
circumstances” approach to determining if such questioning is in fact
coercive. See, e.g., Dayton Typographic Service v. NLRB, 778 F.2d
1188, 1194–1195 (6th Cir. 1985); A & R Transport, Inc. v. NLRB, 601
F.2d 311, 313 (7th Cir. 1979), and cases cited therein. They have not
disagreed with the basic premise that cooperation in such investigations
must always be voluntary. ITT Automotive v. NLRB, 188 F.3d 375, 389
BEVERLY HEALTH & REHABILITATION SERVICES 349
By compelling employees to cooperate in unfair labor
practice investigations, or risk discipline, the Respon-
dent’s rule violates the longstanding principle, estab-
lished in Johnnie’s Poultry, that employees may not be
subjected to employer interrogations, relating to Section
7 activity, that reasonably tend to coerce them to make
statements adverse to their Section 7 interests, those of a
fellow employee, or those of their union. If the employ-
ees’ Section 7 right of mutual protection is to be safe-
guarded, cooperation must be voluntary. Failure to in-
form employees of the voluntary nature of the em-
ployer’s investigation is “a clear violation” of Section
8(a)(1) of the Act. Adair Standish Corp. v. NLRB, 912
F.2d 854, 861 (6th Cir. 1990).
Certainly, enforcement of rule 1.4 to compel coopera-
tion in the investigation of an unfair labor practice charge
would violate the Act. The question more specifically
before us in this proceeding is whether its “mere mainte-
nance” is unlawful. It is axiomatic that merely maintain-
ing an overly broad rule violates the Act. See, e.g., Our
Way, Inc., 268 NLRB 394 (1983) (rule prohibiting solici-
tation during “working hours” presumptively invalid as
overbroad because it includes employees’ own, non-
work-time periods); NLRB v. Beverage-Air Co., 402 F.2d
411, 419 (4th Cir. 1968) (“mere existence” of an over-
broad but unenforced no-solicitation rule is unlawful
because it “may chill the exercise of the employees’
[Section] 7 rights”). Evidence of enforcement of the rule
is not required to find a violation of the Act. See NLRB
v. Vanguard Tours, 981 F.2d 62, 67 (2d Cir. 1992), citing
Republic Aviation Corp. v. NLRB, 324 U.S. 793 fn. 10
(1945). Indeed, the mere maintenance of an ambiguous
or overly broad rule tends to inhibit or threaten employ-
ees who desire to engage in legally protected activity but
refrain from doing so rather than risk discipline. Ingram
Book Co., 315 NLRB 515, 516 (1994); J. C. Penney Co.,
266 NLRB 1223, 1224 (1983).
As noted above, we find the “mere maintenance” of
overly broad rules unlawful because such rules tend to
chill employees’ exercise of their protected rights. We
find that rule 1.4 chills the exercise of employee rights as
well. The rule plainly permits employer conduct which
would be a Johnnie’s Poultry violation of the Act. It
permits the employer to coerce employees, under threat
of discipline, to cooperate with an employer investigation
of unfair labor practice charges. As such, the rule inhib-
its protected, concerted activity. Employees engaged in
protected activity run the risk of becoming embroiled in

fn. 9 (6th Cir. 1999) (noting that the circuit’s case-by-case approach
was not a rejection of the holding of Johnnie’s Poultry, including its
requirement that employee participation must be obtained on a volun-
tary basis).
an employer investigation into an alleged unfair labor
practice. The rule then forces them to face discipline or
cooperate with the employer despite their protected right
to make common cause with their fellow employees.
Given these unpalatable choices, the rule would clearly
have the reasonable tendency to discourage employees
from engaging in protected activity, which might bring
them under the employer’s scrutiny during an unfair la-
bor practice investigation. Alternatively, it could dis-
courage them from exercising their protected right to file
unfair labor practice charges for fear of becoming em-
broiled in such an investigation. Accordingly, we find
that the maintenance of rule 1.4 violates Section 8(a)(1).
The judge limited his recommended remedy for main-
taining facially invalid disciplinary rules 1.4 and 1.6 to
the 20 facilities listed by the General Counsel in para-
graph 2(b) of the amended consolidated complaint. 9 The
General Counsel excepts to the judge’s failure to apply
the remedy to all of the Respondents’ facilities located in
the Commonwealth of Pennsylvania, as requested in the
remedy section of the amended consolidated complaint.
We agree with the General Counsel that the remedy
should be so extended. The record shows that, with one
exception (Caledonia Manor), the rules were imple-
mented at all Beverly facilities throughout the Com-
monwealth, all of which are Respondents in this proceed-
ing. In these circumstances, we find it appropriate as a
remedial matter to require rescission and posting of a
notice to be coextensive with the Respondents’ imple-
mentation of the unlawful rules. See, e.g., Raley’s, Inc.,
311 NLRB 1244 fn. 2 (1993); Albertsons, Inc., 300
NLRB 1013 fn. 2 (1990). We shall amend the recom-
mended Order accordingly.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Beverly
Enterprises-Pennsylvania, Inc., Chambersburg, Pennsyl-
vania, and the Respondent, Beverly Health and Rehabili-
tation Services, Inc., Fort Smith, Arkansas, their officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph A,2(g).
“(g) Within 14 days after service by the Region, post at
its Grandview facility in Oil City, Pennsylvania, copies
of the attached notice marked ‘Appendix A’ and at all its
9 The judge recommended that the Respondents rescind the rules and
any discipline issued pursuant to the rules, making whole any employ-
ees disciplined under the unlawful rules.
10 As noted above, Caledonia Manor’s rule 1.6 differs from the other
facilities. We will not order rescission of rule 1.6 or posting regarding it
at Caledonia Manor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
Pennsylvania facilities,11 copies of the attached notice
marked ‘Appendix B.’12 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current and former employees
employed by the Respondent at any time since May 5,
1995.”
2. Substitute the following for paragraph B,2(f).
“(f) Within 14 days after service by the Region, post at
its Duke facility in Lancaster, Pennsylvania, copies of the
attached notice marked ‘Appendix C’ and at all its Penn-
sylvania facilities, copies of the attached notice marked
‘Appendix D.’13 Copies of the notice, on forms provided
by the Regional Director for Region 6, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since June 1, 1995.”

Stephanie E. Brown and Leone P. Paradise, Esqs., for the Gen-
eral Counsel.
Hugh L. Reilly Esq., of Fort Smith, Arkansas, and Norman I.
White Esq. (McNees, Wallace & Nurick), of Harrisburg,
Pennsylvania, for the Respondent.
Robert S. Sarason, of Boston, Massachusetts, for the Charging
Party.

11 The notice marked “Appendix B” posted at Caledonia Manor, Fa-
yetteville, Pennsylvania, shall not contain the language referring to rule
1.6.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
13 See fn. 12 above.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This
case was tried in Pittsburgh, Pennsylvania, on June 25 and 26,
1997, and in Chambersburg, Pennsylvania, on July 1, 1997.1
The charge in Case 6–CA–27581 was filed September 25,
1995, and an amended charge was filed on November 18, 1996;
the complaint in that case was issued November 21, 1995. The
charge in Case 6–CA–27342 was filed June 21, 1995, and an
amended charge was filed November 18, 1996. The charge in
Case 6–CA–27453 was filed August 4, 1995; first, second, and
third amended charges were filed in that case on August 21,
1995, March 1, 1996, and November 18, 1996, respectively;
complaint in that case issued on March 14, 1996. A consoli-
dated amended complaint in Cases 6–CA–27342 and 6–CA–
27581 also issued on March 14, 1996. All three cases were con-
solidated by order dated that same day. The charge in Case 6–
CA–28394 was filed August 9, 1996, and an amended charge
was filed December 23, 1996. The charge in Case 6–CA–28623
was filed November 26, 1996. The charge in Case 6–CA–28624
was filed on November 26, 1996. The charge in Case 6–CA–
28760 (formerly Case 5–CA–26764) was filed December 30,
1996. A consolidated complaint in Cases 6–CA–28394, 6–CA–
28760, 6–CA–28623, and 6–CA–28624 issued on May 2, 1997.
That same day an amended consolidated complaint issued in
Cases 6–CA–27342, 6–CA–27581, and 6–CA–27453 and all
seven cases were consolidated. The charges in Cases 6–CA–
27731 and 6–CA–28151 were filed November 29, 1995, and
May 9, 1996, respectively. An amended consolidated complaint
in all nine cases (the complaint) issued on May 23, 1997.
The complaint alleges that Beverly Health and Rehabilitation
Services, Inc. (Respondent BHR) and its wholly owned sub-
sidiary Beverly Enterprises–Pennsylvania, Inc. (Respondent
BEP) maintained disciplinary rules which violated Section
8(a)(1) of the Act. The complaint also alleges Respondents
violated Section 8(a)(1) by providing information to employees
on how to obtain objector status under Communications Work-
ers v. Beck, 487 U.S. 735 (1988). Respondent BEP is alleged
to have issued a 2-week suspension to employee Oneita Jane
Say, a 3-day suspension to employee Robert Reed, and two
suspensions and the termination of employee Denise E. Foltz,
all in violation of Section 8(a)(3) and (1) of the Act. The com-
plaint also alleges that Respondent BEP implemented a new
policy regarding licensed practical nurses’ duties and job de-
scriptions, reduced working hours and modified work schedules
of service and maintenance employees, and implemented re-
vised disciplinary rules for employees in violation of Section
8(a)(5) and (1) of the Act. Respondent BHR is also alleged to
have violated Section 8(a)(5) and (1) by implementing revised
disciplinary rules for employees.
1 At the close of the hearing on July 1, I gave the General Counsel
time to determine whether he desired to present additional evidence in
light of Respondent BEP’s introduction of documentary evidence
which, although subpoenaed, had not been provided to the General
Counsel. Ultimately, the General Counsel decided not to present addi-
tional evidence. The hearing was closed by order dated July 24, 1997,
which document is received into evidence as ALJ Exh. 1.
BEVERLY HEALTH & REHABILITATION SERVICES 351
Respondents filed answers which admitted the allegations of
the complaint concerning jurisdiction and certain allegations
concerning the filing and service of the charges, labor organiza-
tion status unit, and 9(a) status. They denied the substantive
allegations of the complaint and pled a number of affirmative
defenses.
At the hearing, Respondents admitted that Tamara Montell
was administrator between October 1994 and October 1996;
Donna Puleo was RN supervisor between October 1993 and
June 1996; Angela Huffman was director of nursing from
March 1995 to date; Theresa Stack was assistant director of
nursing from December 1993 to date; Jackie Shaffer was assis-
tant administrator between March 1995 and August 1996;
Missy Allen has been housekeeping supervisor at all times
material; Carol Lyttle was director of nursing until November
29, 1996; Linda Bandanza was assistant director of nursing
from July to November 30, 1996; and Constantine Wright was
a supervisor until July 1996. Respondents admit that these
individuals were supervisors within the meaning of Section
2(11) of the Act and agents within the meaning of Section 2(13)
of the Act. Respondents further admitted that Michelle Lock-
hart was director of infection control at all material times and
was an agent within the meaning of Section 2(13).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondents, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent BHR and Respondent BEP, corporations, are each
engaged in the operation of nursing homes at various facilities
located in the Commonwealth of Pennsylvania, where they each
annually derive gross revenues in excess of $500,000 and directly
purchase and receive at their facilities goods and materials valued
in excess of $5000 directly from points outside the Common-
wealth of Pennsylvania. Respondents admit and I find that Re-
spondent BHR and Respondent BEP are each employers engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and the nursing homes that they operate are health care
institutions within the meaning of Section 2(14) of the Act.
Respondents admit, and I find, that Service Employees Inter-
national Union, Local 585, AFL–CIO (Local 585), Pennsylvania
Social Services Union, Service Employees International Union,
Local 688, a/w Service Employees International Union, AFL–
CIO (Local 688),2 and District 1199P, Service Employees Inter-
national Union, are each labor organizations within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Respondent BEP is a wholly owned subsidiary of Respon-
dent BHR. Respondents own and operate a number of nursing
homes in the Commonwealth of Pennsylvania. The 20 facili-
ties listed in the complaint have employees who are represented

2 The names of Local 585 and Local 688 appear in various forms in
the complaint. I conclude that the correct names are those that appear
in their most recent contracts.
by Locals of the Service Employees International Union, AFL–
CIO. Of those, three facilities are specifically involved in this
proceeding; Duke,3 Grandview,4 and Caledonia Manor.5
At the Duke facility, Local 668 represents a unit of service
and maintenance employees; the most recent contract covering
those employees ran from December 20, 1991, to December 31,
1994. Local 585 represents two separate units at the Grand-
view facility. The first unit, also a service and maintenance
unit, was covered by a contract that ran from March 30, 1992,
to December 31, 1994. The second unit consists of licensed
practical nurses. After an election, Local 585 was certified by the
Regional Director to represent that unit on March 11, 1994, in
Case 6–RC–10978. The Board upheld that certification.6 Re-
spondent BEP, however, has decided to test the Board’s certifica-
tion, contending that the LPNs are supervisors. At the time of the
hearing that case was set for oral argument before the Circuit
Court of Appeals for the District of Columbia.7
B. The Beck Letter Allegations
The General Counsel alleges that Respondents violated Sec-
tion 8(a)(1) by sending letters to their employees advising them
of their rights under Communications Workers v. Beck, 487 U.S.
735 (1988). Respondents sent a letter that was in all material
respects identical to employees in each of the 20 facilities identi-
fied in the complaint. One such letter, as an example, is set forth
in its entirety below:

June 13, 1995

Dear Employee:

In the last several months, unions that represent our em-
ployees and that are attempting to organize other Company
facilities released “reports” on patient care and working
conditions at Beverly facilities. These union reports contain
numerous false statements about the quality of care you and
your coworkers provide. In one of these reports, the union
pointed to problems in the State of Missouri that occurred
over three years ago that have long since been corrected.
They had to go back that far in an attempt to smear the
Company’s reputation for providing quality care.
Some Employees have expressed their disgust at the un-
ion’s smear campaign and have asked what they can do to
protest the union’s underhanded tactics. First, if you dis-
agree with the union’s propaganda, you can tell the union
bosses that you object to the union’s attempt to smear the
3 More precisely known as Beverly Manor of Lancaster (formerly
known as Duke Convalescent Center), Lancaster, Pennsylvania. At
times in the record and in Respondents’ briefs it is referred to as the
Lancaster facility.
4 More precisely known as Grandview Health Care Center, Oil City,
Pennsylvania.
5 More precisely known as Caledonia Manor, Fayetteville, Pennsyl-
vania.
6 322 NLRB No. 54 (1996) (not reported in Board volumes).
7 As this decision was being prepared for issuance, the General
Counsel filed a motion requesting that I take administrative notice of
the judgment of the Court of Appeals for the District of Columbia
enforcing the Board’s Order. That motion is granted, and it is received
into evidence as ALJ Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
care you provide. Second, you do not have to belong to an
organization that engages in such tactics. You have a legal
right to withdraw from union membership at any time if you
should so choose.
One way to protest the union’s propaganda is to resign
your union membership and become a “proportionate share
payer.” This means you will only have to pay the fraction
of full union dues that directly relates to the union’s cost to
administer the contract at your facility. With full member-
ship, some of your union dues (perhaps as high as 30%–
40%) goes to pay for the union’s smear campaign and other
propaganda activities. If you become a proportionate share
payer, you will pay a lower amount which can be used only
to pay for the union’s representation activities. The union is
required to represent you the same, regardless of your
choice.
Those of you who don’t want to fund the union’s propa-
ganda campaign can request that your membership be con-
verted to “proportionate share payer” status. If you want to
become a proportionate share payer, simply fill out the en-
closed letter and sent it to your union representative. The
choice is entirely yours to make. If you have any ques-
tions about becoming a proportionate share payer and pay-
ing a lower amount each month to the union, you can call
the information officer at the Philadelphia office of the
Labor Board at 215–597–7601.
I am proud of the outstanding efforts of all Beverly as-
sociates to continue delivering quality care to our residents.
The Company continues to receive very good reviews of its
care from regulators, the community, and the families of
those we serve. We at Beverly stand by your excellent re-
cord and will defend it.
Thank you for providing the quality care that allows
your Company to be the nation’s leading provider of long-
term health care services.
Sincerely,

Dennis A. McGowen, NHA
Administrator

Attached to that letter was a form letter which is also
set forth in its entirety:

Mr. Tom Herman
Union Representative
SEIU
1037 Maclay Street
Harrisburg, PA 17103

Dear Mr. Herman:

I, _____________________________, am an employee
of Blue Ridge Haven West Convalescent Center, Camp
Hill, PA. This letter will serve as notification that effective
immediately I am changing my membership status in the
Service Employees International Union, Local 668 from that
of a “full member” to that of a “proportionate share payer.”
Effective immediately, I elect to pay only that portion of the
Union initiation fees and dues which are used for Union ex-
penses related to representational activities such as collec-
tive bargaining, contract administration and grievance proc-
essing, in accordance with my rights under Communications
Workers of America v. Beck and other applicable federal
law. I object to payment of any portion of dues or fees
which go to the local, international or any other level of the
union, which are spent for nonrepresentational activities.

Check if applicable:

( ) I also wish to exercise my right under Communications
Workers of America v. Beck and other applicable fed-
eral law to request that the union provide me with the
required financial details of the funds it expends for
representational and nonrepresentational activities, as
well as a description of the activities you deem “repre-
sentational,” and “nonrepresentational” so I can verify
the accuracy of your calculations.

It is my understanding that effective immediately, I
will not be subject to Union fines or punitive assessments.

Dated:_______________________

Very truly yours,

_____________________________
(Signature)

_____________________________
(Print Name)
These letters issued after Wayne Chapman, regional director
for associate relations, sent a memorandum to administrators at
facilities where employees were represented by labor organiza-
tions. This memorandum, dated June 8, 1995,8 states that the
Supreme Court has ruled that employees do not have to pay the
full amount of union dues if part of those dues are used for
purposes other than collective bargaining and contract admini-
stration. It asserts that a number of employees had expressed
an interest in not paying for union political activity and propa-
ganda. The memorandum advises the administrators to mail
the letter described above to their employees to give each em-
ployee an opportunity to consider the matter.
In Beck, supra, the Supreme Court held that a labor organiza-
tion could not require an objecting employee who was not a
voluntary member of that labor organization to pay dues re-
quired under a union-security clause, where money collected
from the dues was used for activities unrelated to contract ad-
ministration and grievance processing. In California Saw &
Knife Works, 320 NLRB 224 (1995), the Board held, inter alia,
that a labor organization violates Section 8(b)(1)(A) of the Act
when it fails to advise employees it represents who are covered
by a union-security agreement of their Beck rights.
In defining the General Counsel’s position on this issue at
the hearing, counsel for the General Counsel conceded that
there is nothing explicitly or implicitly coercive in the letter.
Counsel for the General Counsel also conceded that there is
nothing inaccurate or misleading concerning the description of
Beck rights contained in the letter. In his brief the General
Counsel’s argument begins by conceding that the Board has
held that an employer may lawfully inform employees of their

8 All dates are in 1995 until and unless indicated to the contrary.
BEVERLY HEALTH & REHABILITATION SERVICES 353
right to resign from full union membership and even provide
employees with envelopes with the union’s address to facilitate
the resignation, citing Towne Plaza Hotel, 258 NLRB 69
(1981).9 The General Counsel argues that this line of cases is
distinguishable in two respects. First, those cases involved a
situation where resignation from the union could have a direct
bearing on the employee’s employment relationship since it
occurred in a context of a strike situation. Second, a union is
under no legal obligation to inform employees of their right to
resign in such a situation, unlike the circumstances in this case
where the Unions have an obligation to inform employees of
their Beck rights. The General Counsel argues that the letter
sent by Respondents criticized the Union in a tone that was
hostile and antiunion and that Respondents have not established
that the letter was in response to any employee inquiries.
“Rather, it appears that the letters from [Respondents] were
unsolicited, and were motivated by anti-union animus.” The
argument continues, asserting that since the Beck information is
duplicative of the information the Unions are required to pro-
vide, employees receiving Respondents’ letter would reasona-
bly conclude that Respondents were encouraging employees to
become Beck objectors and that Respondents have interjected
themselves in the relationship between employees and the Un-
ions in a matter that has no bearing on employees’ employment
status. The General Counsel also argues that the timing of the
letter, coming after the collective-bargaining agreements had
expired at two facilities and near the expiration of the contracts
at the other facilities, serves to demonstrate that it was not
merely informational in nature but served to encourage em-
ployees to become Beck objectors at a critical time when the
Unions needed employee solidarity. The General Counsel con-
cludes, “There is no doubt that employees reading these letters
would recognize Respondent’s endorsement of [the Beck objec-
tor status], and would therefore feel pressure to follow Respon-
dent’s encouragement.”
Respondents argue that the General Counsel has not estab-
lished that the letters interfered with, restrained, or coerced
employees in the exercise of their Section 7 rights and, thus, no
violation of Section 8(a)(1) has been established. I agree.
The Board has long held that the general standard to be ap-
plied in determining whether an employer violates Section
8(a)(1) of the Act is whether the employer’s conduct can rea-
sonably be said to tend to interfere with the free exercise of
employees’ Section 7 rights. American Freightways Co., 124
NLRB 146 (1959).
I cull from the General Counsel’s arguments two main
points. First, because the Beck issue does not have a direct
bearing on the employee’s employment relationship and be-
cause the union already has the legal obligation to advise em-
ployees of this right, an employer may not lawfully advise em-
ployees of their Beck. In other words, it is a per se violation of

9 As a technical matter, it appears that the Board did not actually
reach that issue in Towne Plaza Hotel since the judge dismissed that
allegation and no exceptions were filed by the General Counsel to that
conclusion. Id. at fn. 2. However, the judge relied on Mosher Steel Co.,
220 NLRB 336 (1975), and Nordstrom, Inc., 229 NLRB 601 (1977), in
accurately describing Board law on this issue.
the Act to do so. Second, because the communication to em-
ployees in this case occurred in a context of antiunion hostility,
Respondents’ letters unlawfully encouraged employees to cease
remaining full dues-paying members.10
I begin my analysis of this issue by recognizing that an em-
ployee’s decision to become a Beck objector is a right as much
protected by Section 7 of the Act as the right to become a full
dues-paying union member. It therefore does not follow that by
advising employees, or even by noncoercively encouraging
employees to exercise their Section 7 right to become Beck
objectors, that an employer would, without more, violate an
employee’s Section 7 right to remain full dues-paying mem-
bers. As noted, the General Counsel argues that the Beck issue
is different from other Section 7 rights in that it does not di-
rectly impact the employment relationship. This argument falls
due to its faulty premise. The reduction in dues that an em-
ployee has to pay from his earnings as a consequence of
becoming a Beck objector itself has a direct impact on the em-
ployee’s employment relationship. In any event, even if Beck
objector status had no bearing on the employment relationship,
still the General Counsel’s argument would fail because it fails
to show how advising employees of their Section 7 right to
become Beck objectors constitutes interference, restraint, or
coercion. If the General Counsel were to prevail in this aspect
of its argument, it would ultimately forbid an employer from
communicating with its employees on this Section 7 right.
Such an imposed silence would run afoul of Section 8(c) of the
Act.11 I thus reject the argument that sending the letter
amounted to a per se violation of the Act.
Of course, an employer is prohibited from “interfering with,
restraining, or coercing” employees in the exercise of their
Section 7 rights, but the General Counsel has conceded that
there is nothing explicitly of implicitly threatening or coercive
in Respondents’ conduct. Examining the letter to determine
whether there was any “interference, restraint or coercion,” I
note that the letter is careful to tell employees that the “Choice
is entirely yours to make.” There is nothing indicating anything
to the contrary. I also note that employees are advised to take
their questions on this matter to the Board, thereby avoiding
any appearance by Respondents that they might monitor which
of their employees became Beck objectors. Nor does the Gen-
eral Counsel assert that the letter did more than provide mere
ministerial assistance to employees in becoming Beck objectors
if they so desired. It is clear, however, that the letter noncoer-
cively encourages employees to exercise their right to become
10 The General Counsel’s argument also makes reference to Respon-
dents’ antiunion motivation in distributing the letters. However, moti-
vation in this type of 8(a)(1) allegation is not determinative; instead, as
pointed out above, the test is an objective one. Just as a good motive
would not be a defense to conduct otherwise having a reasonable ten-
dency to interfere with employees’ Sec. 7 rights, so the presence of an
antiunion motive does not serve to convert otherwise lawful conduct
into a violation of the Act.
11 That section provides “The expressing of any views, argument, or
opinion, or the dissemination thereof, whether in written, printed
graphic, or visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act, if such expres-
sion contains no threat of reprisal or force or promise of benefits.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
Beck objectors, however, that alone cannot serve to be the basis
for a violation of the Act. In Towne Plaza Hotel, supra, there
can be little doubt that employees could reasonably conclude
that the employer there was encouraging them to resign from
the union, yet the Board found no violation. Likewise in cases
such as Amboy Care Center, 322 NLRB 207 (1996), the Board
reiterated its policy that an employer may noncoercively en-
courages its employees to support one union over another, cit-
ing Alley Construction Co., 210 NLRB 999 (1974). Thus, non-
coercive encouragement of employees to exercise a Section 7
right, without more, does not violate the Act. The fact that the
letter seeks to have the employees exercise that right in the
midst of a heated controversy between the Union and Respon-
dents also does not serve to convert the letter into an unlawful
act. It is, after all, frequently in the midst of controversy that
employees are called upon to exercise their Section 7 rights.
Towne Plaza Hotel, supra; Amboy Care Center, supra. Nor can
the fact that Respondents failed to establish that the letters were
sent in response to questions from employees serve as a basis to
convert this into unlawful conduct in this case; this is but one
factor to be considered. In Alley Construction, supra, there was
no evidence that the employer’s conduct in that case was in
response to any questions from employees, yet the Board found
the conduct to be proper.
It should be emphasized that conduct in this case involves
noncoercive, accurate, encouragement by Respondents that
employees voluntarily exercise their right to become a Beck
objector. I conclude that the letter Respondents sent to their
employees does not contain statements which could reasonably
tend to interfere with, restrain, or coerce employees in the right
to become or not become a Beck objector. I further conclude
that there is nothing per se violative of the Act when an em-
ployer accurately advises its employees of their Beck rights and
noncoercively encourages its employees to exercise those
rights. I shall therefore dismiss this allegation of the complaint.
C. The Disciplinary Policy Allegation
The General Counsel alleges that Respondent BHR violated
Section 8(a)(5) and (1) of the Act by implementing revised
disciplinary rules for employees in the Duke unit, and Respon-
dent BEP violated that same section of the Act by identical
conduct involving the Grandview units. By way of significant
background, the evidence shows that the parties commenced
negotiation in October 1994, for successor contracts involving
service and maintenance units at the Duke and Grandview fa-
cilities; as indicated above, those contracts were set to expire on
December 31, 1994. John Haer, staff director, was chief nego-
tiator for both Locals 585 and 688. Haer received a letter dated
January 13, 1995, from Ronald J. St. Cyr, labor relations man-
ager for Respondent BHR, concerning the expiration of those
contracts. In that letter St. Cyr advised the Locals that effective
January 23, Respondent BHR would not extend the Duke facil-
ity contract but it would “maintain the status quo as required
law.” The letter explained that grievances from this facility
would be processed as in the past in the grievance procedure,
except that no grievances would be processed to arbitration.
The letter revealed that Respondent BEP’s position was identi-
cal concerning the Grandview facility except that the arbitration
procedures would be extended and that therefore the Union
would be expected to agree to extend the no-strike provisions.
However, Haer testified without contradiction that the Locals
did not agree to the extension of the no-strike clause. Thus,
effective January 23, the contracts at the Duke and Grandview
facilities terminated.
Haer received another letter from St. Cyr, this one dated
April 21. The letter is referenced “Disciplinary Policy—
Effective June 1, 1995.” The letter advised Haer that Respon-
dents “have modified and standardized their disciplinary poli-
cies” at the union-represented facilities in accordance with a
six-page attachment. The letter continued, “These changes will
become effective June 1, 1995, and will remain in effect until
such time as management determines that further changes are
necessary.” The attachment to the letter describes the discipli-
nary rules applicable to employees. It cautions that employees
who fail to follow the rules will be subject to discipline up to,
and including, discharge. The attachment describes the proce-
dure to be followed in issuing discipline and the steps involved
in investigating alleged violations of the rules. The rules are
divided into category one violations which may lead to dis-
charge; 26 rules are specified, and category two violations for
which progressive discipline may be appropriate; 23 rules are
specified. This was the first that the Union was told of changes
in disciplinary policy.
A negotiating session was held on April 27. At that meeting
Haer asked the purpose of the institution of the new discipli-
nary rules. St. Cyr replied that it was a policy promulgated out
of headquarters in Fort Smith, Arkansas. Haer asked if the
policy was being implemented for all the nursing homes, and
St. Cyr replied that the policy was being implemented for all
the nursing homes in the region. Haer said that the Union con-
sidered the new policy to be a change, and he demanded bar-
gaining. Haer also made several requests for information, in-
cluding a copy of the then-existing disciplinary policy. At that
meeting Haer was given a copy of the existing policy. That
policy divided misconduct into minor violations for which pro-
gressive discipline may be appropriate; 15 rules were specified,
and major violations which may lead to discharge; 19 rules
were specified.
On May 18, Haer sent a letter to St. Cyr wherein he stated that
it was the position of the Union that Respondents could not uni-
laterally modify work rules at union-represented facilities. He
asserted that the new work rules may be unlawful and in violation
of the collective-bargaining agreement. The letter requested a
considerable amount of information concerning the disciplinary
policy.12 St. Cyr responded by letter dated May 23. In that letter
he stated, “Under our agreements, the substance of the discipli-
nary rules codes of conduct are at the discretion of management.
Only disciplinary procedures (grievance-arbitration) have been
the subject of negotiation and contract. This is affirmed by the
management’s rights clause, the zipper clause, past practice, and
usual practices of collective bargaining.” The letter also dis-
agreed with Union’s characterization of the disciplinary policy as

12 There is no allegation that Respondents have unlawfully refused to
provide information to the Locals.
BEVERLY HEALTH & REHABILITATION SERVICES 355
“work rules.”13 In a letter dated June 8, Haer repeated his request
to bargain over the proposed disciplinary policy; by letter dated
June 23, St. Cyr responded, “Where your request to bargain over
the facilities standardized rules of employee conduct and disci-
pline are concerned, I addressed that issue in my letter to you of
May 23, 1995 and my position remains unchanged.”
The next bargaining session was held July 24. Haer asked if the
new disciplinary policy had been implemented, and St. Cyr indi-
cated that it had. Haer reiterated the Union’s request to bargain
over the disciplinary policy. St. Cyr replied that Respondents were
not obligated to bargain about that matter. St. Cyr explained that
the policy was not new since it had always been expected that em-
ployees act in a manner consistent with the disciplinary policy.
Also present for Respondents was Donald Dotson, senior vice
president. On August 7 another bargaining session was held. At
that session Haer brought up the situation of employee Jane Say
who, he asserted, had been suspended under the new disciplinary
policy; Say had allegedly been disciplined for giving false informa-
tion about other employees.14 Haer said that this was one of the
reasons why the Union wanted to bargain over the matter. Dotson
reiterated that Respondents did not have to, and would not, bar-
gain about the disciplinary policy. Dotson said that Respon-
dents would listen to the Union if it had concerns, but Respon-
dents would not bargain. Haer then questioned how Respon-
dents could distinguish between a false statement for which an
employee could be disciplined and an honest misunderstanding.
Dotson replied that those issues are resolved in the grievance
procedure.15
Thus, the evidence shows that on June 1, Respondents im-
plemented a revised disciplinary policy for its employees, in-
cluding those represented by Locals 585 and 668, in an effort to
standardize those rules for all employees. The evidence shows
that the new disciplinary policy substantially altered the old
rules; indeed St. Cyr, in his letter dated June 21 to the Union,
admitted that the disciplinary policy would be “modified.” In
any event, a comparison of the old policy with the new policy
clearly shows substantial modifications.
The General Counsel contends that the implementation of
the disciplinary policy violated Section 8(a)(5) of the Act, but
only for unit employees at the Duke and Grandview facilities.
It is axiomatic that an employer may not unilaterally change
terms and conditions of employment for employees represented
by a labor organization. NLRB v. Katz, 369 U.S. 736 (1962). It
is also well settled that disciplinary rules constitute significant
terms and conditions of employment over which an employer
has an obligation to bargain. Great Western Produce, 299
NLRB 1004 (1990). I have concluded above that the Unions
on several occasions requested to bargain concerning the
changes that Respondents were intending to implement con-

13 The record shows that Thomas DeBruin, president of district
1199P, SEIU, sent a similar letter to St. Cyr on May 19; he received an
identical response.
14 This matter is discussed in greater detail below.
15 These facts are based on a composite of credited portions of the
testimony of Haer and Dotson. The testimony of both witnesses shows
that Respondents took the position that they did not have to bargain
concerning the substance of the disciplinary policy. This is consistent
with the documentary evidence.
cerning the disciplinary rules, and that the changes were sig-
nificant and substantial in nature. I have further concluded that
Respondents refused to bargain with the Unions on this subject
before they implemented the revised disciplinary policy. It
follows that Respondents thereby violated Section 8(a)(5) and
(1) of the Act.
Respondents raise three defenses to their conduct in this re-
gard. First, Respondents argue that the management-rights
provision language gave it the right to implement disciplinary
rules without first bargaining with the Union.16 The difficulty
with this contention is that I have concluded that the contracts
covering the unit employees at these two facilities had expired
by the time Respondents implemented the revised disciplinary
policy.17 The management-rights provision language amounted
to a waiver by the Unions of their right to bargain on this sub-
ject during the term of the contract. When the contract expired,
so did the Unions’ waiver. Buck Creek Coal, 310 NLRB 1240
(1993); Holiday Inn of Victorville, 284 NLRB 916 (1987). This
argument lacks merit.
Next, Respondents argue that they did in fact satisfy their ob-
ligation to bargain. They correctly point out that preimplemen-
tation notice was given to the Union and that Respondents sup-
plied the Union with extensive information on this matter that
the Union had requested. However, as found above, Respon-
dents consistently refused to bargain over this subject, taking
instead the position that they did not have to so by virtue of the
management-rights provision language in the expired contracts.
The fact that Respondents gave notice and supplied information
does not satisfy the obligation to engage in meaningful, preim-
plementation bargaining with the collective-bargaining repre-
sentative of their employees. Respondents also argue that the
testimony of Dotson establishes that Respondents engaged in
post implementation bargaining on the disciplinary rules. In
response to this argument I point out first that Dotson’s testi-
mony, taken as a whole does not support Respondents’ conten-
tion. Instead, it is clear that Dotson’s position at meetings with
the Union was consistent with St. Cyr’s written and oral posi-
tion—that Respondents had no obligation to bargain by virtue
of the management-rights provision language.18 Thus, this
argument is also without merit.
Lastly, Respondents argue that the disciplinary policy revi-
sions were applicable companywide, to union represented as
well as nonrepresented employees. However, it is axiomatic
that this, standing alone, does not excuse a refusal to bargain.
Respondents presented no evidence as to why the disciplinary
rules could not be tailored to suit the needs and desires of the
16 The General Counsel agrees that the language in the contracts
gives Respondents the right to unilaterally issue disciplinary rules; this
explains why the General Counsel is not contending that Respondents
conduct at other facilities that were covered by an existing collective-
bargaining agreement violated the Act.
17 Respondent may not even make this contention concerning the
LPN unit; there never has been a contract, much less a management-
rights provision, covering these unit employees.
18 If I were to read Dotson’s testimony in the way Respondents ar-
gue it should be understood, I would discredit it since it is inconsistent
with Respondents’ own documentary evidence and the otherwise credi-
ble evidence in the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
unit employees. I conclude that by unilaterally implementing
revised disciplinary rules on June 1 for unit employees at the
Grandview and Duke facilities, Respondents violated Section
8(a)(5) and (1) of the Act.19
D. The Facially Invalid Rules Allegation
The General Counsel contends that two of the rules con-
tained in the disciplinary policy which Respondents imple-
mented independently violate Section 8(a)(1) of the Act.
Rule 1.4 provides: “Refusing to cooperate in the investiga-
tion of any allegation of patient (resident) neglect or abuse or
any other alleged violation of company rules, laws, or govern-
ment regulations.” This rule was promulgated and maintained
in each of the 20 facilities listed in the complaint.
Rule 1.6 provides: “Making false or misleading work-related
statements concerning the company, the facility, or fellow as-
sociates.” The disciplinary policy classifies violations of these
rules as a category one violation, meaning that employees are
subject to discharge for violating them. This rule was promul-
gated and maintained in 19 of the 20 facilities listed in the
complaint.20
As to rule 1.4, the General Counsel argues that the Board has
recognized that an employer may compel an employee to pro-
vide information concerning matters that the employer is inves-
tigating before any final discipline has been issued, citing New
Jersey Bell Telephone Co., 308 NLRB 277 (1992); Manville
Forest Products, 269 NLRB 390 (1984); Cook Paint & Varnish
Co., 246 NLRB 646 (1979), enf. denied 648 F.2d 712 (D.C.
Cir. 1981). However, since this rule is not confined to matters
“still in the investigative stage” or where “no final disciplinary
action has been taken” the General Counsel argues that the rule
may reasonably lead employees to believe that they are re-
quired to provide information even after Respondents have
issued discipline.
As to rule 1.6, the General Counsel argues that it infringes on
an employee’s Section 7 right to discuss union and other pro-
tected, concerted matters relating to working conditions with
other employees by permitting Respondents to discipline em-
ployees for making statements that are “merely false” as op-
posed to “malicious,” citing Linn v. Plant Guard Local 114,
383 U.S. 53 (1966); Southern Maryland Hospital, 293 NLRB
1209 (1989); Radisson Muehlebach Hotel, 273 NLRB 1464
(1985); Stanley Furniture Co., 271 NLRB 703 (1984); Ameri-
can Cast Iron Pipe Co., 234 NLRB 1126 (1978), enfd. 600
F.2d 132 (8th Cir. 1979).
Respondents argue that rule 1.4 requires employees to coop-
erate in investigations and rule 1.6 requires that they tell the
truth, and that this is no more than what Respondents have a
right to expect from employees. Respondents point out that
nursing care facilities involve the provision of services in cir-

19 At the hearing Respondents adduced some testimony, conclusory
in nature, that the modifications in the disciplinary policy were of a
type that employees would always have been expected to follow. No
specific evidence was presented to support this argument, and it is not
made in the briefs filed by Respondents.
20 The evidence shows that rule 1.6 maintained at the Caledonia
Manor facility differed significantly from the rule maintained at the
other facilities. This situation is described in more detail below.
cumstances that are sometimes emergency or near emergency
situations and that these institutions are heavily regulated.
These institutions must have the ability to perform prompt in-
vestigations based on reliable information; otherwise the essen-
tial mission of the nursing home could be compromised. For
these reasons Respondents argue that it is essential that em-
ployees cooperate in investigations and tell the truth.
Regarding rule 1.4, the Board held in Cook Paint & Varnish,
supra, that an employer may not compel its employees to an-
swer questions asked by the employer’s counsel relating to a
pending grievance which was scheduled for arbitration. The
Board differentiated between a situation where an employer’s
inquiry was still in the investigative stage and no final disci-
pline had yet been meted out and the situation where an em-
ployee had already been disciplined and the employer was in
the process of defending or justifying its conduct. In the former
situation the Board noted that it had held that employers did
have the right to compel employees to cooperate with an inves-
tigation; in the latter situation the Board concluded it was
unlawful for the employer to do so. The Board explained that
in the latter case, “when an employer seeks to question its em-
ployees, it moves into the arena of seeking to vindicate its dis-
ciplinary decision and of discovering the union’s arbitration
position, [footnote omitted] and moves away from the legiti-
mate concern of maintaining an orderly business operation.”
Cook Paint & Varnish, supra at 646. In such a situation there
may be pressures, sometimes subtle, sometimes not, placed on
the employee to conform the facts to support the employer’s
case. The Board concludes that the employee’s Section 7 right
to make common cause with other employees by resisting an
employer’s efforts to build its case against the disciplined em-
ployee predominates.21 Thus, the holding of Cook Paint &
Varnish may be summarized by stating that employees have a
Section 7 right to support a fellow employee by refusing to
cooperate with an employer in building its case against the
employee in an impending arbitration proceeding. The Board’s
holding in this regard is not unlike that in Johnnie’s Poultry
Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir.
1965). That case arose in a context of an employer’s prepara-
tion for a Board unfair labor practice hearing. The Board there
held, inter alia, that an employer violates Section 8(a)(1) of the
Act if it compels an employee to answer questions concerning
employees’ protected union activity during the employer’s pre-
trial preparation process. The Board made clear that such ques-
tioning could only occur if the employee voluntarily agreed to
cooperate with the employer’s preparation. In other words, the
employee had a Section 7 right to refuse to cooperate.22
21 Although that decision was denied enforcement by the D.C. Cir-
cuit Court of Appeals, the Board has given no indication that I am
aware of that it has overruled its holding. The decision remains binding
on the Board’s administrative law judges.
22 It is interesting to note that the Board did not mention the
Johnnie’s Poultry test in Cook Paint & Varnish. Application of that
well established test to the facts in Cook Paint & Varnish may not have
changed the conclusion the Board reached but it may have allayed the
concerns expressed by the court of appeals concerning per se nature of
the Board’s holding.
BEVERLY HEALTH & REHABILITATION SERVICES 357
Having identified the Section 7 rights raised by this allega-
tion, I examine rule 1.4 to determine whether an employee
reading that rule in a common sense manner would reasonably
conclude that he or she would incur discipline if he or she exer-
cised the identified Section 7 rights. The rule provides in perti-
nent part: “Refusing to cooperate in the investigation of any . . .
alleged violation of company rules, laws, or government regu-
lations.” It appears that the plain language of the rule would
apply to prearbitration and preunfair labor practice trial prepa-
ration situations where employees cannot be compelled to co-
operate. Although the Board in Cook Paint & Varnish used
language indicating that an “investigation” applied only to the
predisciplinary phase of grievance processing, it seems that an
employee would reasonably conclude that that word could in-
clude all phases of the prearbitration process, including witness
preparation for the arbitration hearing. Although, as the Board
indicated, the nature of the investigation turns more adversial in
nature as the arbitration hearing approaches, it nonetheless
continues to be an “investigation” to determine whether the
conduct challenged by the grievance was in conformance with
“company rules, laws, or government regulations.”
Respondents’ argument that all this rule requires is that em-
ployees cooperate with an investigation only serves to make the
General Counsel’s case, because, as set forth above, the Board
has held that an employer cannot coerce cooperation in certain
circumstances. The argument that Respondents need this rule
to maintain the highly regulated standards set for nursing
homes is too broad an argument to be persuasive. Respondents
are free to require cooperation in investigations in a wide range
of areas not challenged in this case. The difficulty with the rule
is that it is so expansively written that it intrudes upon certain
specifically defined rights of Respondents’ employees. I con-
clude that rule 1.4 is overbroad to the extent that prohibits em-
ployees from freely exercising the rights described above and
therefore violates Section 8(a)(1) of the Act.
Regarding rule 1.6, the Board has consistently held that such
rules are unlawful since they restrict not only recklessly or
maliciously false speech, but also speech asserted in good faith
which subsequently may turn out to be false. This restriction
serves to stifle employees in discussions otherwise protected by
Section 7 of the Act concerning union matters and other terms
and conditions of employment; they may become hesitant to
voice their views and complaints concerning working condi-
tions for fear that later they may be disciplined because some-
one may determine that those statements were false. The im-
pact such a rule has is vividly shown in the discipline of Say,
who, as I conclude below, was unlawfully disciplined relying
on this rule. The cases cited above by the General Counsel
show that this policy has been applied to a wide range of enter-
prises, including health care institutions such as are operated by
Respondents. Accordingly, I conclude that by maintaining this
rule, Respondents violated Section 8(a)(1) of the Act.
E. The Revision of Work Schedules Allegation
The General Counsel alleges that Respondent BEP reduced
the working hours and modified the work schedules of the ser-
vice and maintenance employees at the Grandview facility in
violation of Section 8(a)(5). On May 5, then Local 585 presi-
dent Gloria Culp was summoned to a meeting at the Grandview
facility. Among those present at the meeting were Tamara
Montel, Respondent BEP’s administrator at the facility, Culp,
and Larry Winger, an employee and union steward at that time.
Montel explained that the nurse’s aides were going to have
their work schedules reduced by increments of whole days and
that dietary, housekeeping, and laundry department employees
would have their schedules reduced by amounts ranging from
one-half hour to several hours per day. Montel further ex-
plained that reductions were necessary due to a decline in the
number residents at the facility. The details of the reductions
were explained on a individual employee basis. Culp said that
the facility was properly using seniority to effectuate the reduc-
tions, however, the decision to make the reductions had not
been negotiated with the Union and therefore the Union did not
agree with them. Montell did not respond.23
On May 10, Haer received copies of several documents from
Montel. Those documents were all dated May 5 and were ad-
dressed to employees at the facility; the documents were enti-
tled “Reduction in Hours.” These were form memoranda
which stated, “This is to advise you that because of reduced
census and the need to reduce hours, your schedule is being
reduced. Effective May 25, 1995 your hours will be reduced by
[various amounts] per day. If you are unable to work a reduced
schedule we will have to lay you off until such time as our cen-
sus increases.” The memoranda advised employees of their
bumping rights and requested that the employee contact Mon-
tell by 10 a.m. on May 10 to advise her of the employee’s deci-
sion. Fourteen employees were advised that their schedules
were reduced 15 minutes per day; 18 employees were advised
that their schedules were reduced 30 minutes per day. In addi-
tion, Haer received similar forms advising four employees that
they were being laid off for the same reasons. These memo-
randa provided the employees with information concerning
unused vacation and health insurance. Finally, Haer also re-
ceived similar forms sent to 12 employees advising them that
their work schedules had been cut. The reductions ranged from
1 day per payroll period (from 8 to 7 days) to 6 days per payroll
period (from 8 to 2 days).
On May 12, Haer sent Montell a letter on behalf of the Union
demanding bargaining concerning the reductions. In the letter
the Union advised Respondent BEP that it felt that the reduc-
tions were not necessary and that Respondent BEP was already
understaffed and that the Union considered the reductions to be
layoffs governed by specific portions of the expired contract.
In that regard, the Union asserted that under those provisions
layoffs were to begin with the reduction of hours of the least
senior employees. The letter concluded by requesting that
Montell contact the Union immediately to schedule a bargain-
ing meeting. Respondent BEP did not answer this letter. To-
ward the end of May, Haer called Montel by telephone. He
expressed concerns that employees had made to him about the
reductions and he asked for a response to his letter requesting
bargaining. Montel said she would get back to him after she
spoke with St. Cyr, however, she never did so. As indicated

23 These facts are based on the testimony of Culp, who I conclude is
a credible witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
above, on June 8 Haer sent St. Cyr a letter which in part con-
cerned the disciplinary policy. In that letter Haer also pointed
out that he never received a response to his May 12 letter de-
spite the telephone call that he had made to Montell. Haer
complained, “If you are not aware, let me tell you that arbitrary
and capricious schedule changes have created chaos at Grand-
view. I’m told that employees are laid off or cut back in hours
one day, then mandated to work overtime the next day. This
preposterous situation must be the result of either completely
incompetent management or a calculated plan to create an at-
mosphere of discord and disintegration. Either way, there is a
serious problem for the residents and workers of Grandview.”
As also indicated above, St. Cyr replied by letter dated June 23.
In that letter St. Cyr responded to the reduction in work sched-
ule issue as follows: “The subject reductions were necessitated
by falling census and a need to operate within good business
practices as provided for under the Management Rights clause
of the CBA, a clause which remains effective during periods
when no contract extensions exist. In determining the method
by which employees’ hours were reduced at Grandview, the
company has extended the use of the grievance and arbitration
procedures and if the union believes the facility has violated the
CBA in areas where the ‘status quo’ has application, it may
pursue that avenue of recourse.”
On July 10, the Haer and St. Cyr were present at a grievance
meeting. At the meeting, Haer repeated his request for bargain-
ing on the subject; he advised St. Cyr that the Union had filed
an unfair labor practice charge with the Board. Haer asserted
that many of the grievances they had discussed resulted from
the modifications that Respondent BEP had implemented. St.
Cyr asserted that Respondent BEP had been able to restore
many of the hours that had been cut. Haer nonetheless contin-
ued to request bargaining. St. Cyr said that Respondent BEP
did not have to bargain over the matter because it had discussed
the procedure it used for the reduction with Union Stewards
Culp and Wringer, and they concurred. As to the decision to
reduce hours and schedules, St. Cyr said that it was a manage-
ment prerogative and management had no duty to bargain over
that decision.24 Although, as indicated above, Culp and Winger
had agreed to the procedures Respondent BEP used in effectu-
ating the reduction, no bargaining ever occurred concerning the
decision by Respondent BEP to reduce employees’ hours and
schedules.
An employer is generally not free to unilaterally alter terms
and conditions of employment of employees represented by a
labor organization. NLRB v. Katz, supra. It is also clear that
reduction of hours worked by employees is a mandatory subject
of bargaining. Sheraton Hotel Waterbury, 312 NLRB 304
(1993). I have concluded above that Respondent BEP reduced
the hours of unit employees, and that it did so without first
giving the Union an opportunity to bargain over that decision.25

24 This is consistent with a written summary of the meeting sent by
St. Cyr to the Union.
25 I have further concluded that Respondent BEP did give the Union
an opportunity to bargain concerning the procedures to be used in ef-
fectuating the reduction of hours and that the Union agreed that the
procedures were proper. Thus, the finding above is limited to the deci-
sion to reduce hours.
I further note that the reason for the reduction was a reduction
in census; in other words, a decline in business. This does not
establish that the reduction in hours was due to a basic change
in the direction or scope of the business that might serve to
privilege Respondent BEP’s conduct from the bargaining proc-
ess. Further, the changes made were substantial and did not
constitute the normal day-to-day schedule alterations that might
not trigger an obligation to bargain. Angelica Healthcare Ser-
vices Group, 284 NLRB 844, 853 (1987).
Respondent BEP argues that the management-rights provi-
sion in the expired contract permitted it to unilaterally engage
in this conduct. However, even assuming that this was the
case, that contract had expired and, for reasons already ex-
plained above, the Union’s waiver of its right to engage in bar-
gaining on this matter expired with the contract. Also, Respon-
dent BEP’s argument that the reduction in hours it effectuated
applied to nonunit as well as unit employees does not excuse it
from its obligation to bargain with the Union concerning unit
employees. Accordingly, I conclude that by reducing the hours
of unit employees on about May 5, without first giving the
Union an opportunity to bargain about that decision, Respon-
dent BEP violated Section 8(a)(5) and (1) of the Act.
F. The Change in LPN Job Description Allegation
The General Counsel alleges that in June, Respondent BEP im-
plemented a new policy regarding licensed practical nurses’ duties
and job descriptions in violation of Section 8(a)(5) and (1). Susan
Carbaugh had worked for Respondent BEP for about 13 years at
the time of the hearing; she is an LPN. For almost all of that time
she worked “on the floor” performing typical LPN duties. At the
time she started her employment she was not given a job descrip-
tion; she received her training concerning her duties from another
LPN. Sometime in 1992 she saw a job description for the LPN
position on a desk; however, no one ever gave her a copy to sign.
In June 1995, Carbaugh was given a copy of a job descrip-
tion for the LPN position and a “notice to associates” by Mi-
chelle Lockhart, infection control supervisor. Lockhart asked
Carbaugh to read the documents, sign them, and return them.
Carbaugh did so. The documents that were given to Carbaugh
were dated June 15 and described the LPNs as “supervisors.”26
However, the documents did not accurately describe the duties
of the LPNs as they were actually performed. For example, the
LPNs did not assign work to the nursing assistants or adjust
their grievances; that was performed by Supervisor Theresa
Stack. The LPNs did not evaluate new associates or play any
role in determining whether they worked beyond their proba-
tionary periods. The LPNs did not have any responsibility for
making recommendations concerning annual performance
evaluations of certified nursing assistants. The LPNs did not
directly issue discipline; instead, they brought the matter to the
attention of Supervisor Stack, who then handled the matter
from there. These are only some of the many ways that the job
descriptions as written did not reflect the reality of the work
26 At this time Respondent BEP was in the process of contesting the
Board’s certification of Local 585 as the collective-bargaining repre-
sentative of a unit of LPNs; Respondent BEP argued that the LPNs
were supervisors.
BEVERLY HEALTH & REHABILITATION SERVICES 359
performed by the LPNs.27 Since the introduction of the job
descriptions, LPNs have been required to fill out evaluations
for certified nursing assistants, but otherwise the actual duties
of the LPNs have continued as before.28
In June, Linda Marie Wambaugh, then organizing director
for Local 585, met with the LPNs. The employees reported to
her that Respondent BEP had issued new job descriptions and
had required them to sign the job description in order to receive
their paychecks and that this was the first time that Wambaugh
had learned that new job descriptions had been issue. Wam-
baugh did not request bargaining on the matter since Respon-
dent BEP was refusing to bargain in order to test the Board’s
certification in the underlying representation case.
As described above, the Union was certified to represent a
unit of LPNs but Respondent BEP is in the process of testing
that certification in the Court of Appeals, arguing that the LPNs
are supervisors. The Board’s findings supporting that certifica-
tion are binding on me under the circumstances of this case.
Southwestern Bell Telephone Co., 235 NLRB 963 (1978).
Also, Respondent BEP in not excused from its bargaining obli-
gation while it pursues an appeal; instead, it acts as its peril if it
makes in unilateral changes during the pendency of the appeal.
Allstate Insurance Co., 234 NLRB 193 (1978). I have found
above that Respondent BEP presented the unit employees with
job descriptions that varied substantially from the duties they
had performed in the past and from the duties that had been
described in an earlier job description by assigning them super-
visory duties. I have further found that notwithstanding the
substantial changes in the job descriptions, the actual duties of
the LPNs have changed only in that they now do written
evaluations of certified nursing assistants. The General Coun-
sel argues that these facts show that Respondent’s conduct is a
transparent, but unlawful, attempt to buttress its appeal now
pending before the court of appeals. Unilaterally issuing new
job descriptions to union-represented employees violates Sec-
tion 8(a)(5) of the Act. Dickerson-Chapman, Inc., 313 NLRB
907, 942 (1994). This is so even though Respondent BEP has
not yet required the unit employees to perform the full range of
additional duties, since the very assignment of those duties and
responsibilities on employees affects terms and conditions of
employment. Unilaterally assigning new job duties to union
represented employees also violates Section 8(a)(5). Woods
Schools, 270 NLRB 171, 176 (1984). Moreover, in light of
Respondent BEP’s clear refusal to recognize the Union while it
tests the Board’s certification, any request by the Union to bar-

27 In many of these same ways the new description varied from the
one that Carbaugh saw on a desk in 1992. In light of the clear differ-
ences between the two written job descriptions, the testimony of Wam-
baugh, former organizing director for Local 585, that LPNs had been
asked to sign the same job description that had been in effect at the time
of the Union’s certification is clearly erroneous.
28 These facts are based on the testimony of Carbaugh, who, as
noted, is a long-term employee still employed by Respondent BEP. I
find her testimony to be fully credible. In addition, Respondents stipu-
lated at the hearing that the testimony of Beverly Higbee would cor-
roborate that given by Carbaugh concerning the duties of the LPNs and
the differences between those duties and the duties described in the new
job descriptions issued June 15.
gain on this subject would have been futile. I therefore con-
clude that by issuing new job descriptions and changing job
duties for the LPNs without bargaining with the Union, Re-
spondent BEP violated Section 8(a)(5) and (1) of the Act.
G. The 8(a)(3) Allegations
1. Oneita Say
The General Counsel alleges that Respondent BEP sus-
pended employee Oneita Say for 2 weeks in violation of Sec-
tion 8(a)(3) and (1). Say began working at the Grandview fa-
cility in 1992; she worked as a nursing assistant. Say ended her
employment there in 1995 after she had a work injury that re-
sulted in workers’ compensation proceeding. When last em-
ployed at the facility, Say worked the 11 p.m. to 7 a.m. shift
where she was supervised by Donna Puleo. In her last written
appraisal for the year ending April 30, 1993, Say received an
overall rating of “very good.”
In the fall of 1993, Say became a union steward at the facil-
ity. The following year Tamara Montell became the adminis-
trator at the facility. Montell took the local union officials to
lunch as part of introducing herself to the staff. During the
luncheon Montell said that she had not worked with unions
before and that she hoped that she and the local union officials
would be able to resolve grievances quickly and informally.
She also said that she had an “open door” policy and that they
should feel free to come in and discuss concerns with her.
When one of the luncheon attendees questioned whether there
would be any repercussions or breaches of confidentiality if this
process was used, Montel assured them there would be com-
plete confidentiality and no repercussions.
About a year later, in July, Say and Gloria Culp, then presi-
dent of Local 585, visited Montel in her office. The purpose of
the meeting was to discuss problems that employees had raised
with Say. During the meeting Say and Culp complained that
Supervisor Puleo was not properly rotating the employees to
work in the more difficult wings of the nursing home; that Pu-
leo was showing favoritism in the way she assigned work.
Montell responded that she found that hard to believe. Say then
said that there were other problems with Puleo as well. Say
asserted that Puleo had left the facility while on duty to go
home and change clothes. Say also claimed that the residents
of the facility were not getting proper care because the employ-
ees were overworked and unable to complete all their assigned
tasks. Montell said she would investigate the matters and
would get back to Say and Culp.
The next day, August 3, Say was approached by Puleo while
at work. Puleo, who usually addressed Say by her middle name
Jane, on this occasion addressed her as “Say” and said that she
wanted Say to take the vital signs of the residents in a timely
fashion. Say replied that she always turns in those reports
when she is supposed to “to the best way that I can.” Say left
and started to prepare to perform her work. Puleo then said that
she wanted to talk with Say; she asked why Say had told all
those lies in the office with Montell. Say denied that she did
that, but Puleo insisted that she had. After another denial the
discussion became louder and more heated. Puleo insisted that
Say had told Montell that “none of the workers on the eleven to
seven done their jobs.” Say again denied this, asserting that it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
was all wrong. Puleo asked why Say had not come to her with
the problems, and Say said that the problems had been ongoing
for a long time. Say said she had a lot of work and had to get
started. As Say walked away Puleo followed her and continued
to discuss the matter. Say protested that she did not want to
discuss the matter, that she was falling behind in her work, and
that she was becoming upset. But Puleo persisted; she insisted
on knowing why Say had not come to her first and instead
brought the matters to Montell. Say began to shake; she began
crying; as she described it, “I was a total wreck.” Puleo in-
structed Say to go to the nurses’ station since residents were
being disturbed by their discussion. Once at the nurses’ station
Puleo resumed her questioning of Say. At one point Say said,
“I want you to understand something: I am a union steward. I
have a job. It’s to represent these people when they come to
me with a problem. And I was asked to have something done
about this, file a grievance or do something about this situation,
and that’s exactly what I was doing, taking care of complaints
and problems of my coworkers on the eleven to seven shift.”
Later during the shift Puleo told Say to be sure that certain
work was on Puleo’s desk by 4 o’clock because Puleo was tired
of the work always being late. Then Puleo told Say not to leave
other work for someone else because Puleo “was tired of [Say]
busting [her] ass to get out that door at seven o’clock.” Say
protested that her timecard would show that she very seldom
left the facility before 7:15 or 7:30 a.m.
At another point during the shift Puleo said that she wanted
to prove something to Say. Puleo assembled all the employees
on the floor and told them that Say had gone to the office and
told Montell that none of them did their work. Puleo asked the
employees if that was true, that they did not provide care for the
residents. Say again protested, “I did not say that. That wasn’t
the way it was.” Say walked away. She was so distraught that
when she went to pick up a box of gloves, she dropped the box,
and when she went to pick it up again, she dropped it again.
Say then told another employee that she had to go home, that “I
am shaking so bad, I can’t even think what I’m doing here. I
can’t even do my work.” She then told Puleo essentially the
same thing. Puleo then asked to talk with Say again; she of-
fered to help Say with her work so she could catch up, and she
advised Say that it would not be in her best interest to leave.
Say sat down and had a glass of water, but Puleo resumed her
repetitive questioning. Say nonetheless worked her entire
shift.29
That morning, August 4, Montell received a written version
of the events that occurred during the preceding shift from Pu-
leo.30 In that document Puleo asserted that Say had shaken her
finger in Puleo’s face and said in a loud voice that she had no
respect for Puleo as a nurse. According to Puleo’s written de-
scription, she asked Say to keep her voice down, that the pa-

29 Counsel for the General Counsel stated at the hearing that she was
not alleging that any of the conduct described above independently
violated the Act. Accordingly, I make no findings in that regard.
30 That document, as well as other written statements concerning
these events, are clearly hearsay and, thus, were not received into evi-
dence for the truth of the matters asserted therein concerning these
events. Instead, they were received into evidence solely for the purpose
of showing what Respondent BEP relied on in disciplining Say.
tients were sleeping, but Say continued to loudly assert that
Puleo knew that employees were not doing a complete ,job.
Puleo’s written version accused Say of making false or mis-
leading work related statements by asserting that employees did
not actually make their rounds with the residents and that Say
was guilty of “Resident neglect” when she admitted that she did
the same and was guilty of failure to report the foregoing to
management. Finally, Puleo’s written version asserted that Say
had been guilty of insubordination when Say slammed some
items down on the desk, pointed her finger at Puleo, and said
that she was going home and was going to call Montell.

When Say arrived home that morning she received a call for
Angela Huffman, director of nursing. Huffman requested that
Say come into the office. Say asked if it involved discipline;
Huffman replied that they only wanted to talk to her. Say re-
sponded that she would let Huffman know if she would be able
to come in. Say then managed to get in touch with Culp, who
met Say in the parking lot outside the facility. After advising
Culp of the events of the last day, Say went with Culp to Huff-
man’s office where Montell was also present. At the meeting
Say was given an “Associate Memorandum.” That document
revealed that Say was being suspended beginning August 4 for
a “Category I Violation.” Specifically, it indicated that Say had
violated sections 1.6 and 1.2131 by “Making false or misleading
work-related statements concerning the facility or fellow asso-
ciates/Insubordination.” In the portion of the document entitled
“Supervisor’s Comments” it states, “On the 11 to 7 shift 8/3/95
am 8/4/95 Associate stated in a harsh tone to RN supervisor
that she [had] no respect for her as an RN and further stated that
no one ever gets changed on first rounds on this shift (11–7)—
implying fellow associates don’t do their job.” This document
was read to Say at the meeting and she was told that she was
suspended pending further investigation. Culp responded that
the Union did not agree with the suspension because the new
disciplinary policies that had been put in effect had not been
first negotiated with the Union. Culp pointed out that they had
earlier assured Say that no discipline would occur at this meet-
ing, yet they in fact disciplined Say. Culp said that they lied
and made false statements.32 At some unspecified point Say
was provided an opportunity to submit a written statement con-
cerning the incident to Respondent BEP, but she declined to do
so.
Thereafter, an investigation was conducted by Angela Huff-
man, director of nursing at the Grandview facility. During the
course of the investigation statements were provided by various
31 Sec. 1.6, dealing with false or misleading statements, has been de-
scribed more fully above. Sec. 1.21 is “Insubordination.”
32 The foregoing facts are based on testimony of Say and Culp, both
of whom I found to be credible witnesses. Puleo did not testify at the
hearing. Montell testified in summary fashion concerning the meeting
with Say and Culp; her testimony does not conflict in any material
manner from the facts found above. Huffman also testified, but she
was able to recall very little in terms of detailed, credible facts. As
more fully described elsewhere in this decision, although various writ-
ten statements were received into evidence concerning these events,
they were not received for the truth of the matters asserted in the state-
ments and, thus, cannot serve to contradict the direct testimony given
by Say and Culp.
BEVERLY HEALTH & REHABILITATION SERVICES 361
persons concerning the events that led to Say’s discipline.33 A
statement from Patricia McDevitt, registered nurse, is dated
August 10. In that statement McDevitt relates the following.
On August 3 she heard Puleo ask Say why Say had failed to
perform a certain task and Say’s voice escalated in responding.
Puleo said that the hallway was not the place for that discus-
sion. Shortly thereafter, McDevitt heard Say say that she was
leaving but was going to call Montell first. Puleo told her to
wait; that she wanted Say to tell the other employees what she
had said earlier. Puleo then assembled the employees and
asked Say whether she had said that the employees did not
check the residents while making their first round. Say admit-
ted that she had said that. Several employees disagreed with
Say’s assertion. After questioning by Puleo, Say admitted that
she also did not check the residents and that she failed to report
other employees who she claimed had failed to do so. McDe-
vitt noted that at one point she observed Say shaking her finger
at Puleo, but she could not hear what was being said. Kimberly
Rodgers, certified nursing assistant, also submitted a statement
dated August 10. Rodgers’ written description of the events of
August 3 follows. She heard Puleo explain to Say that Say
should have answered a bell that was ringing from a resident
and changed the resident instead of walking by. Say responded
by practically shaking her finger in Puleo’s face and saying in a
loud voice that no employees change residents during their first
rounds and that she had no respect for Puleo. Rodgers then
claims that she interjected and said that she does do her work
and changes the residents when necessary; Say and Rodgers
began arguing with Say speaking loudly. Say then slammed a
thermometer down on a bedside stand and said that she was not
going to work; she was going to call Montell. Later, Rodgers
was called to a meeting by Puleo at which Say repeated her
claim that employees did not change residents during their first
rounds. Douglas Erdley, licensed practical nurse, also submit-
ted a written statement dated August 10. In that statement Erd-
ley asserts that he heard Puleo giving Say very specific instruc-
tions concerning Say’s responsibilities. Say seemed to feel that
she would be unable to do all of her work if she was to do the
work as described by Puleo and that she did not need to do the
work assigned by Puleo. Later, Say made the now familiar
remarks concerning going home and calling Montell and the
meeting with employees followed. Mary McBride, certified
nursing assistant, submitted a brief written statement dated
August 11. McBride writes that she was called into a meeting
by Puleo where Say denied having said that she was the only
person changed beds on the first rounds. Lastly, Rita
Sabousky, certified nursing assistant, submitted a written
statement dated August 9. She writes that she was called to a
meeting where Say claimed that the employees were not doing
their jobs; that Say was upset because she had to take vital
signs and made a big scene. The document contains other as-
sertions not adequately explained in the record to understand
with certainty.

33 None of the employees who provided statements testified at the
hearing in this case. Again, these statements also were received only to
show what was relied on in reaching the decision to discipline Say.
Neither Montell nor Huffmann spoke directly to the employ-
ees who provided the statements concerning the events de-
scribed therein. Nor were Montell nor Huffman aware of the
circumstances under which the statements were given. It is
therefore unclear, for example, whether Puleo played any role
in taking these statements. In any event, Montell concluded
from the statements that the allegations against Say had been
substantiated but that Say would be given an opportunity to
improve her work attitude after serving a 2-week suspension.
About 2 weeks later Say was notified that she could return to
work. Instead of returning to work, Say applied for and re-
ceived stress-related leave, and thereafter, as indicated above,
was involved in a workers’ compensation proceeding. In set-
tlement of that proceeding, Say signed a document dated Janu-
ary 23, 1996, which included the following: “The employee
has voluntarily resigned from her employment with the em-
ployer effective January 23, 1996 for reasons other than her
work-related injury. In lieu of employee resigning, she volun-
tarily agrees to withdraw N.L.R.B. Complaint [sic].” At no time
had Say ever filed a charge herself concerning her suspension.
I begin the analysis of this allegation by pointing out that Say
was engaged in protected union activity when, as union stew-
ard, she and Culp visited Montell and complained on behalf of
employees about Supervisor Puleo and their perception that
employees were so overworked that they were unable to com-
plete their assigned tasks. I further conclude that Say’s encoun-
ter with Puleo the next day was a continuation of that protected
union activity. Although the discussion took place on the work
floor, it was Puleo who chose to engage in the discussion with
Say at that time and location. Moreover, it was clear that Puleo
had learned of the discussion Say had earlier with Montell since
Puleo directly indicated as much to Say during their discus-
sions. During the discussion Say continued to defend the posi-
tion she and Culp had taken in their conversation with Montell.
As union steward, she clearly was entitled to do so.
It was Puleo who continued to press the matter in a manner
obviously designed to anger and upset Say. Puleo was quite
upset with what Say had told Montell but, as indicated, Say’s
comments were protected under the Act. Nothing that Say said
or did during the discussions she had with Montell or Puleo was
so outrageous or inappropriate that it would deprive Say of the
protection of the Act. Caterpillar, Inc., 321 NLRB 1178
(1996). The evidence clearly shows that Say was disciplined
because of the manner and content of her encounter with Puleo,
an encounter which was protected union activity. It follows
that this discipline violated Section 8(a)(1) of the Act. Mast
Advertising & Publishing, 304 NLRB 819 (1991).34
The General Counsel argues that under the analysis set forth
in Wright Line35 should be applied in this situation. I find that
analysis inappropriate in these circumstances because I have
concluded that the conduct for which Say was disciplined was
protected union activity. Neff-Perkins Co., 315 NLRB 1229 fn.
2 (1994). Respondent BEP appeared to argue at the hearing
that Say signed a release that waived her right to any further
34 It is unnecessary to determine whether this conduct also violated
Sec. 8(a)(3). Id. at 820 fn. 7.
35 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
relief, based on the document quoted above; no such argument
is made in Respondent BEP’s brief. I conclude that the quoted
language is too ambiguous to constitute a clear and knowledge-
able waiver.
2. Robert Reed
The General Counsel contends that employee Robert Reed
was suspended for 3 days by Respondent BEP in violation of
Section 8(a)(3) and (1). Reed began working at the Grandview
facility in November 1994; at the time of the hearing he was
employed as a housekeeper. He served as a member of the
Local 585’s bargaining team for the contract that was negoti-
ated in 1992. In 1995, he attended about five or six bargaining
sessions between Local 585 and Respondent BEP. In addition,
in early 1995, Reed attended a bargaining session involving the
facility located in Meadville, Pennsylvania. He did this as an
employee observer at the invitation of the Union. At this meet-
ing St. Cyr, Respondent BEP’s chief negotiator, commented
that he has noticed Reed at other bargaining sessions.
At some point prior to Reed’s suspension but after the con-
tract had expired, housekeeping employees were assigned the
duty of mopping the floors. Before that time a maintenance
employee had performed that task. Reed asked his supervisor,
Missy Allen, why they now had to mop the floors; she ex-
plained that this was necessary because the number of residents
in the facility had declined and that the maintenance employee
had been assigned to clean the office area. In addition, as more
fully described above, Reed was one of the employees whose
work schedule was reduced one-half hour per day.
On November 10, shortly before his shift was to end, Reed
kicked a plastic bucket while in the bathroom of a resident’s
room. This made a loud noise. At the time Reed did this the
door to the bathroom was closed, but the door from the room to
the corridor was open. The resident was occupying the room at
the time. Nurse Jeffries came into the room and said that she
had heard a loud noise and thought that the resident may have
fallen. Reed told her that he was upset “about our additional
workload and reduction in hours.”
On November 14, while he was on vacation, Reed was
summoned to the office of Angela Huffman, Respondent BEP’s
director of nursing at the facility. Also present was Larry
Winger, steward for Local 585, and Missy Allen, housekeeping
supervisor. Huffman said that Reed was being suspended
pending an investigation because, on November 10, he made
too much noise in the resident’s room; she said that an RN had
complained. Winger protested that it seemed unfair to an-
nounce the suspension while Reed was on vacation, but Huff-
man asserted that it could be done whenever they wanted to.
Reed was given a document at that time which indicated that he
was being suspended pending an investigation for committing a
category 1 violation by violating rule 1.13.36 It described the
violation committed by Reed as “Improper, inappropriate con-
duct in the workplace.” At some point Reed wrote on the
document in the section provided for associate’s comments:

36 This rule provides: “Conduct widely regarded as immoral, im-
proper, fraudulent or otherwise inappropriate in the work place, includ-
ing, but not limited to unlawful harassment of other associates.”
“Management dosent [sic] show Associates respect.” Reed was
given an opportunity to respond to the allegation in writing, but
he chose not to. Thereafter, after Respondent BEP had com-
pleted its investigation of the matter, the following was added
to the document in the section provided for supervisor’s com-
ments: “Investigation completed on 11–17–95. After reviewing
statements and interviewing staff and residents we have
changed to a category II violation #2.8. (Failure to maintain
acceptable respect for others.)”37 Also added to the document
in the section provided for corrective action to be taken by the
employee was: “[Reed] shall treat others with respect and kind-
ness. And when he is upset or angry he should ask to speak in
private with those necessary. Do not throw or bang items or
equip. around room.” Reed received a 3-day suspension.
Thereafter, Reed filed a grievance on the matter. At a griev-
ance meeting Reed untruthfully said that he had accidentally hit
the bucket.
The board’s analysis in Wright Line applies to the determina-
tion of whether Reed’s discipline violated the Act. The Board
has restated that analysis as follows:

Under Wright Line, General Counsel must make a prima facie
showing that the employee’s protected union activity was a
motivating factor in the decision to discharge him. Once this
is established, the burden shifts to the employer to demon-
strate that it would have taken the same action even in ab-
sence of the protected union activity.7 An employer cannot
simply present a legitimate reason for its actions but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected
conduct.8 Furthermore, if an employer does not assert any
business reason, other than one found to be pretextual by the
judge, then the employer has not shown that it would have
fired the employee for a lawful, nondiscriminatory reason.9
________________
7 NLRB v. Transportation Management Corp., 462
U.S. 393, 400 (1983).
8 See GSX Corp. v. NLRB, 918 F. 2d 1351, 1357 (8th
Cir. 1990) (“By assessing a legitimate reason for its deci-
sion and showing by a preponderance of the evidence that
the legitimate reason would have brought about the same
result even without the illegal motivation, an employer can
establish an affirmative defense to the discrimination
charge.”)
9 See Aero Metal Forms, 310 NLRB 397, 399 fn. 14
(1993).

T & J Trucking Co., 316 NLRB 771 (1995). This was further
clarified in Manno Electric, 321 NLRB 278 (1996).
Examining the General Counsel’s case, I conclude that he
has failed to meet his initial burden. It is clear that while Reed
engaged in union activity, it was not the type of activity that
differentiated him from other union supporters in any signifi-
cant way. While the evidence shows that Reed was noticed by
St. Cyr when he attended a bargaining session, there is no evi-
dence of any animus directed to Reed. Nor is there evidence of
37 That rule provides: “Failure to maintain acceptable standards of
respect for others.”
BEVERLY HEALTH & REHABILITATION SERVICES 363
timing from which unlawful motive could be inferred. Also,
the General Counsel, in his brief, admits that Reed engaged in
misconduct for which he deserved to be discipline. Thus, this
is not a pretext case from which unlawful motive can be in-
ferred.
The General Counsel argues that Reed’s discipline was ex-
cessive. Under the disciplinary system then in place for cate-
gory 2 violations of the type for which Reed was disciplined,
“violations generally advance through four (4) progressive
steps of discipline.” The first step of that system would be a
written warning since Reed had no prior history of misconduct
of this type. Moreover, the General Counsel points out that on
Reed’s disciplinary memorandum, Respondent BEP initially
checked the box indicating that the matter was at the step 1
level of discipline “1st written warning.” The General Counsel
argues that the 3-day suspension was excessive and therefore it
was motivated by Reed’s union activity. I find this argument
unpersuasive. First, Respondent BEP’s policy provides that
“generally” progressive discipline would be applied; it is not set
in stone. Second, the discipline given to Reed, when compared
to his misconduct, is not so out of line as to compel the conclu-
sion that some other factor must have come into play in Re-
spondent BEP’s decision to discipline him. Even if I were to
consider this as some evidence tending to support a prima facie
case, it is insufficient to carry the day in light of the absence of
evidence of animus, timing, etc.38 I conclude that the General
Counsel has failed to carry his initial burden in establishing that
the suspension of Reed violated the Act. Accordingly, I shall
dismiss that allegation in the complaint.
3. Denise Foltz
The General Counsel alleges that Respondent BEP sus-
pended on June 21, 1996,39 again suspended on November 14,
and then discharged on November 20, its employee, Denise
Foltz, in violation of Section 8(a)(3) and (1). Foltz was em-
ployed at the Caledonia Manor facility located in Fayetteville,
Pennsylvania. She began her employment there on March 30,
1994; she was employed as a part-time dietary aide. Her im-
mediate supervisor was Lisa Pietropola, dietary manager.
Since February 1997, Foltz has worked for District 1199P,
Service Employees International Union as an organizer.
On June 26, Foltz received a performance evaluation that
was approved by Maria Spinazzola, facility administrator. In
seven of the eight categories for which she was evaluated, Foltz
received a rating of “very good,” which is the second highest
rating of five possibilities; she received “satisfactory” in the
eighth area. Her overall rating was “very good” and the evalua-
tion contained generally favorable comments concerning Foltz’
work. At the hearing, Spinazzola described Foltz as a “wonder-
ful employee. She was very valued in the dietary department
for her hard work and efforts.”

38 The General Counsel also argues that unlawful motive is estab-
lished from the failure of Respondent BEP to adequately investigate the
matter. That argument is not factually supported by the evidence in the
record. I have concluded above that Reed was given an opportunity to
present his written version of the events and that Respondent BEP
investigated the matter before discipline was meted out.
39 All dates hereinafter are in 1996 unless otherwise indicated.
Local 668 has represented certain employees at the facility
for over 10 years. The Union and Respondent BEP recently
agreed to a successor contract, the prior contract having expired
on November 30, 1995. On April 1, 2, and 3, 1996, there was a
strike in which about 35 to 40 employees participated and the
facility was picketed. Foltz was not scheduled to work those
days, however, she did participate in the picketing of the facil-
ity on each of the 3 days for about 6 to 8 hours a day. Foltz
returned to work on April 4. During the strike several striker
replacement employees were hired into the dietary department
where Foltz worked; there also were several employees still
working who had not been replaced. There was tension be-
tween the two groups of employees.
Foltz also filed several grievances. Although Foltz did not
occupy any official position with the Local 668, she had been
designated by Local 668 to be the person who filed the griev-
ances in the absence of the regular grievance filer. On June 19,
she filed a grievance concerning a 25-cent-per-hour supplement
for performing training duties. The grievance was resolved at
the second step of the grievance procedure with the result that
Foltz received the training supplement. On June 21, Foltz filed
a grievance on behalf of employee Betty Synder concerning the
alleged failure to grant Synder every second weekend off. This
grievance was resolved at the third step of the grievance proce-
dure with the result that Synder was granted every second
weekend off.
On June 21, Foltz began work at 1 p.m. Later that day Foltz
was summoned into Spinazzola’s office where Spinazolla said
that she had received complaints from several employees that
Foltz had been soliciting on behalf of the Union and distribut-
ing literature to employees while she should have been work-
ing.40 Foltz admitted that she had done so, except that she said
that she was beginning her 15-minute break. Foltz was told she
was being put on a 3-day suspension pending investigation.
Foltz was given written notification that she was being sus-
pended pending an investigation for violating rule 1.14.41 Un-
der the portion of the document providing for supervisor’s
comments, it reads “Left job site to distribute union propaganda
to other associates.” Under the portion of the document pro-
vided for employee comments Foltz wrote “I do not feel I was
in violation of this code of conduct because I was beginning my
fifteen minute break and I was NOT threatening anyone.”
On June 24, Foltz received a call from Spinazzola to report
to work. Foltz was later told that day by Spinazzola that the
allegations against Foltz were substantiated and that Spinazzola
had also discovered that Foltz had distributed a union card on
the work floor. Foltz admitted that she did give out the union
card. On a copy of the written suspension that Foltz had been
given 3 days earlier Spinazzola added “3 day suspension. Re-
40 Spinazzola was unable to testify consistently as to the exact words
she used to advise Foltz of this. I conclude, however, that the substance
of the instruction is as related above. The record establishes that what-
ever words were used by Spinazzola, Foltz clearly understood that she
was permitted to engage in union activity during her breaktime and
during cross-examination Foltz admitted this is what Spinazolla told
her.
41 That rule provides “Violation of the Company’s Code of Conduct
and Business Ethics.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
instated stating should harassment/distribution of union lit.
occur again, she would be terminated.” and “Suspension for 3
days. Explained to associate to only distribute literature on
break time/off clock.” Spinazzola advised Foltz that she was
not to distribute literature or solicit while she was working; that
if she did this again she would be terminated.42
At the hearing, Spinazzola explained that the discipline im-
posed on Foltz was based on complaints she had received from
three employees regarding Foltz. One such report came from
employee Vivian Hoover, who submitted a written note dated
June 21 which stated, “I was in 212 working and came out the
door when Denise Foltz handed me union documents and in-
formation to join union [sic]. Denise was pushing a cart of
pitchers so she was obviously working.” Another report came
in the form of a statement signed by employees Brenda Rotz
and Heather Hahn which read, “On 6/21/96 Denise Foltz ap-
proached me while I was cleaning St 1 Dining Room and she
came out of the Dietary Dept. and handed me papers to read
and sign about the Union, and wanted me to sign a ‘petition-
like’ form right there & then, but, I refused. Reported to Su-
pervisor and then to Administrator.”43
Respondent BEP maintains a lawful no-solicitation rule that
prohibits employees from engaging in solicitation during work-
ing time or in immediate resident-care areas; it also maintains a
lawful no-distribution rule that prohibits employees from dis-
tributing literature in work areas of the facility. Respondent
BEP has designated areas that employees may use to take their
15-minute paid breaks. These include a breakroom, outside the
facility, and any area not being used by a resident. The dining
room where the June 21 incident took place is considered a
resident area where employees are not supposed to take a
break.44 Concerning breaktimes, Respondent BEP does not
require employees at this facility to take their breaks at certain
times; they are free to take them whenever they want. Respon-
dent BEP also allows employees to engage in conversation with
each other while they are continuing to work.
Spinazzolla reviewed the employee statements and consid-
ered Foltz’ claim that she was starting her break. Spinazzolla
decided that Foltz should be paid for the time that Foltz had
been off from work as a result of the suspension. Spinazzola
explained that she believed that Foltz “was possibly taking her
15-minute break,” and since Foltz was a good employee, she
decided to call Foltz back to work and pay her for the time that
she was off.45 However, Pietropola credibly testified that she
did not believe Foltz’ assertion that Foltz was starting her break
when she encountered the employees. Pietropola explained that

42 The foregoing facts are based on the testimony Pietropola and
Spinazzola. Where the testimony of Foltz is in conflict with their tes-
timony, I do not credit Foltz.
43 In light of hearsay objections these documents were not received
for the truth of the matters asserted therein but only as reports relied
upon as a basis for the discipline.
44 Foltz testified that she did take her break in the dining room when
the weather was hot and the air conditioning was not functioning in
other break areas. Assuming this was the case, there is no evidence that
on June 21 there was any heat problem that would justify this deviation
from the normal rule.
45 Foltz did not deny that she was paid for the time off.
Foltz had just started work at 1 p.m. and the incident occurred
around 2 p.m. and that most employees do not take a break so
soon after starting work. She also explained that the incident
occurred in the dining room where employees are not allowed
to take breaks. Pietropola testified that she had no problem
with Foltz or any other employee talking about the Union while
they were working. However, Pietropola indicated that the
problem with Foltz’ conduct was that she was handing out lit-
erature and not working.
The General Counsel argues that the paid suspension and
warning violated the Act. I apply the analysis in Wright Line,
supra, in resolving this allegation. The General Counsel argues
that Foltz was disciplined on June 21 because of her protected
union activities. As of that date Foltz was one of many em-
ployees who had joined the picketing in April and had filed
only two grievances. There is no evidence, for example, show-
ing that grievance filing was rare and, thus, that this was a sig-
nificant event. Neither of the grievances appears to be anything
out of the ordinary; they seemed to be the typical grievances
that could be expected in a mature bargaining relationship such
as existed between Respondent BEP and the Union at this facil-
ity. Significantly, there is absolutely no evidence that Respon-
dent BEP harbored animus towards Foltz because of those ac-
tivities. While the timing of the discipline supports the General
Counsel’s case, other factors tend to undermine the argument.
Most telling is that despite the fact that Respondent BEP had
evidence that Foltz had violated its rules, Spinazolla decided to
pay Foltz for the time off. I conclude that Spinazolla was, in
effect, giving Foltz a break. This conduct hardly shows the
animus that typically accompanies an effort to stifle union ac-
tivity. Additionally, only 2 days later Foltz received a favor-
able work evaluation approved by Spinazolla. This too does
not fit comfortably with the General Counsel’s case. I conclude
that the General Counsel has failed to meet its initial burden of
showing that Foltz’ picketing activity and grievance filing
played a part in Respondent BEP’s decision to discipline Foltz
on June 21 and 24. I conclude that Foltz was disciplined for the
reasons stated by Respondent BEP.
Before I turn to examine whether the reasons given by Re-
spondent BEP for the discipline of Foltz were themselves law-
ful, I will address certain arguments made by the General
Counsel in his brief. The General Counsel first argues that
Spinazzolla’s testimony should be discredited, based primarily
on the obvious difficulty Spinazolla demonstrated at the hear-
ing relating the words she used in advising Foltz as to when
Foltz could or could not engage in union activity. I have con-
sidered that testimony, but I have determined to nonetheless
credit the testimony of Spinazolla because I conclude that it is
more believable on the whole than that of Foltz. In the same
vein, the General Counsel argues that if Spinazolla had diffi-
culty relating precisely what Respondent BEP’s rules were
concerning solicitation and distribution, how were the employ-
ees to understand the rules. The answer to this argument is that
Respondent BEP posted rules that were clear and there is no
credible evidence that clear language of the rules was obfus-
cated to the degree that the rules became ambiguous. Indeed,
Foltz clearly understood throughout her employment that she
was allowed to engage in solicitation during her breaktime;
BEVERLY HEALTH & REHABILITATION SERVICES 365
indeed she asserted that as a reason her conduct was not im-
proper. The General Counsel also argues that since Spinazolla
believed that Foltz had, in fact, been on breaktime at that time
and, thus, paid her for the time off, it was inconsistent, if not
unlawful, for Spinazolla to fail to rescind the discipline in its
entirety. I do not interpret Spinazzolla’s testimony in this way.
Having heard the testimony while observing the demeanor of
the witness, I conclude that what Spinazolla was relating was
that she believed that Foltz had “possibly” been taking her
break and not, as the General Counsel argues, that she believed
Foltz completely.
The reason given by Respondent BEP for Foltz’ discipline is
that she engaged in solicitation and distribution of literature
during working time. Inasmuch as Respondent BEP had lawful
rules restricting such activity to nonworking times, such disci-
pline would not be unlawful if the employee breached the rules.
Our Way, Inc., 268 NLRB 394 (1983). I conclude that Re-
spondent BEP had reasonable cause to believe that Foltz en-
gaged in union activity during working time based on the
statements supplied to it by employees Hoover, Rotz, and
Hahn. Those statements clearly assert that Foltz was on work-
ing time when she approached the employees. Also, these
statements could reasonably lead Respondent BEP to conclude
that Foltz’ conduct did not fall within the policy allowing em-
ployees to talk while performing work, since the statements
demonstrate that Foltz and the employees did not continue to
perform work while they engaged in the activity.
The General Counsel argues that I should draw an adverse
inference against Respondent BEP for failing to call those em-
ployees as witnesses at the hearing, citing National Football
League, 309 NLRB 78, 97–98 (1992), and Sahara Las Vegas
Corp., 297 NLRB 726, 730 (1990). National Football stands
for the well-settled rule that an adverse inference may be drawn
where a party fails to call a witness within its control. Here, the
witnesses were employees equally within the control of all
parties and thus it would be improper to draw any adverse in-
ference. In Sahara Las Vegas there is the following comment
made by the administrative law judge, “Although Harris is a
current employee of Respondent, he was never called as a wit-
ness.” Id. at 730. To the extent that that statement is meant to
draw an adverse inference from the failure to call an employee
as a witness, it is clearly inconsistent with established Board
law and, thus, has no precedential value.
Next, the General Counsel challenges the statement signed
by employees Rotz and Hahn by pointing out that it appears not
to be in their handwriting and it uses words such as “I” when it
is signed by both of them. However, it is clear that the docu-
ments appear to be signed by those employees and, thus, Re-
spondent BEP was entitled to rely on the contents in determin-
ing whether to impose discipline. Again, I conclude that Re-
spondent BEP had evidence sufficient to form a reasonable
belief that Foltz had engaged in conduct that violated its lawful
rules concerning solicitation and distribution.
I now examine the evidence to determine whether the Gen-
eral Counsel has established that Foltz had not, in fact, engaged
in the union activity during worktime. Foltz testified that she
assumed that Rotz and Hahn were taking a break. This was
despite the fact that they were not allowed to do so in that din-
ing room and despite the fact that this incident occurred around
2:30 p.m. and the employees were scheduled to leave at 3 p.m.
Foltz claimed that she was starting her break when she engaged
the employees in the discussion about the Union and gave them
union cards and other literature, explaining to the employees
that it was a “closed shop.” Even though the contract had ex-
pired, Foltz testified that she believed that after the 90-day pro-
bationary period, “then you signed a card” and employees had
to join the union. Foltz also explained that when she used the
phrase “closed shop” she meant that employees had “to sign a
card in order to work [here].” Foltz testified that on a “couple
of occasions” she had previously taken a break in the dining
room when it was very hot in the kitchen because the air condi-
tioner was not working and it was cooler in the dining room,
and that she had seen other employees take breaks there also.
Concerning the incident with employee Hoover, Foltz testified
that this began when she encountered Hoover while they were
clocking in together before starting work. At that time she told
the Hoover that she had union cards and would give them to
Hoover later. Later that day Foltz passed Hoover in the hall-
way on station three near the elevator and Foltz handed the
Hoover a union card. Foltz explained that she normally works
on the first floor but was on the third floor to clean up the sta-
tion 3 dining room. Based on the demeanor of the witnesses
and the totality of circumstances, I do not credit Foltz’ testi-
mony that she or the other employees were on breaktime when
engaged in the union activity.
It is important to note that the General Counsel is not alleg-
ing and has not established that the solicitation and distribution
rules were disparately enforced against union activity.46 In-
stead, the General Counsel argues that Foltz’ testimony should
be credited to establish that the activity took place on nonwork
time, a fact which I decline to find. Accordingly, I conclude
that the General Counsel has not established that Respondent
BEP violated the Act by disciplining Foltz on June 21 and I
shall dismiss that allegation of the complaint.
After the June 21 incident, Foltz continued to file grievances.
On July 11, she filed a grievance for employee Helen Mort over
the alleged failure to give Mort additional hours of work that
were instead given to a less senior employee. The grievance
was not resolved at the third step of the grievance procedure:
however, Mort left the employment of Respondent BEP and,
thus, the grievance was never resolved on its merits. On July
16, Foltz prepared a grievance on behalf of herself and pre-
sented it to Lisa Pietropola, dietary manager. The grievance
alleged Foltz was being harassed because of her union activity
in that a nonunion employee had supposedly told Foltz that the
nonunion employee had been coerced into signing a statement
that indicated that the employee and Foltz had discussed union
matters, apparently during working time. In the grievance,
Foltz asserted that there was no rule concerning what could or
could not be talked about while working. The record does not
clearly indicate the status of that grievance. On July 16, Foltz

46 The General Counsel does point out that employee Hoover admit-
ted accepting a union card and other literature from Foltz, yet only
Foltz was disciplined. However, it is clear that Foltz initiated the inci-
dent and that this reasonably explains the failure to discipline Hoover.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
also filed a grievance on behalf of employee Barbara Fah-
nestock. The grievance asserts that Fahnestock and two other
employees failed to follow patient care procedure. According
to the grievance, Fahnestock, who had joined the strike in
April, was allegedly disciplined while the other two employees,
who had not joined the strike, were not disciplined. At the
hearing, Foltz admitted that none of the employees were actu-
ally disciplined; that Fahnestock was actually moved from sta-
tion 3 to station 1 to be observed more closely and that Foltz
was told that the other employees involved would also be moni-
tored more closely. The grievance on this matter had not yet
been resolved by the time of the hearing. The next day, Foltz,
Fahnestock, and Carol Lyttle, director of nurses, discussed the
grievance. During this discussion Foltz perceived that the em-
ployees had been threatened by Lyttle so Foltz filed another
grievance on behalf of Fahnestock that alleged that Lyttle had
threatened Fahnestock to withdraw the earlier grievance.47 This
grievance too had not yet been resolved. On August 8, Foltz
filed a “class action” grievance alleging that Spinazzola, admin-
istrator, had been soliciting employees to decertify the union.
Like the preceding grievances, this one has not yet been re-
solved. On October 17, Foltz filed a grievance on behalf of
employee Sherry McKnight concerning the manner in which
she was allegedly being called back from workers’ compensa-
tion leave. On November 16, Tena Kauffman filed a grievance
on Foltz’ behalf alleging that Foltz was improperly disciplined
on November 7, in that she had never been trained in the use of
chemicals or pumps to be used in connection with the chemi-
cals. Finally, on November 16, Kauffman filed another griev-
ance on Foltz’ behalf alleging that discipline that Foltz had
received was a result of her union activity and because she had
participated in an OSHA inspection. These last two matters are
dealt with in more detail below.
On September 4, Foltz attended a safety in-service meeting
of dietary employees; Pietropola was present. During the
course of the meeting Foltz raised safety matters such as a
leaky dishwashing machine, loose tiles on the floors, and a
loose handle on the coffeepot. Foltz also discussed the inade-
quacy of the first aid safety kit with Lyttle, director of nurses.
Each of the concerns raised by Foltz were corrected, although
the precise time the corrections were made is not clear from the
record. Foltz continued to discuss safety matters with other
employees. On September 24, Foltz filed a complaint with the
U.S. Department of Labor, Occupational Health and Safety
Administration. In the portion of the complaint received by
Respondent BEP a number of alleged hazards were identified.
These included a broken latch on a blender that caused an em-
ployee to sustain burns, an inadequate chain glove for use on
the meat slicer, an inadequate first aid kit, a leak in the dish-
washing machine, and slippery floors. The complaint also
raised concerns of infection control and patient handling; it
complained of flooding in the laundry room, inadequate venti-
lation in the laundry department, broken springs on the mop
buckets, and other matters.

47 The General Counsel does not allege that this incident violated the
Act.
On November 7, there were rumors that OSHA would be
conducting an inspection of the facility that day. An OSHA
inspector did arrive that day. When Spinazolla asked the in-
spector whether he had a search warrant, he left the building.48
Also, Pietropola admitted that on that day Foltz told her that
she was the person who had called OSHA. Other events oc-
curred later that day which the parties argue show Respondent
BEP’s state of mind concerning Foltz.
Foltz was designated by the Union as one of its three repre-
sentatives to accompany the OSHA inspector on the inspection
of the facility. On November 7, before her scheduled work
hours, Foltz went to the facility. She went into the kitchen
where other employees were working preparing the lunch meal.
As she walked through the kitchen she tapped employee Tom
Atherton on the back and said, “They’re here, they’re here,”49
referring to the OSHA inspector. She used the telephone to call
the Union and her mother, who also works at Caledonia Manor,
concerning the OSHA inspection. While she was in the kitchen
area Foltz was not wearing the white slacks, blue smock top,
and hair net that is the required uniform. Foltz then went to the
lobby area of the facility where she was joined by Kauffman,
chief steward. After waiting for about 20 minutes they were
told by Spinazzola that the OSHA inspector had left the facility
and the inspection had been postponed.
Respondent BEP maintains a lawful posted rule at the facil-
ity which prohibits employees from being on the premises
unless they are scheduled to work and also maintains a rule
which prohibits making personal telephone calls without per-
mission except in cases of emergency. The practice concerning
the use of the telephone for personal business is that employees
ask a supervisor for permission to use the telephone when a
supervisor is present, and permission is routinely granted.50
Rebuck, director of rehabilitation, observed Foltz’ conduct in
the kitchen and reported it to Pietropola, Foltz’ immediate su-
pervisor; together they reported the matter to Spinazzola, who
advised them not discipline Foltz but to speak directly with
Foltz. Rebuck then orally advised Foltz of the proper proce-
dures concerning use of the telephone for personal calls.
Foltz returned home and then came back to the facility at the
start of her working schedule. At that time Foltz had a conver-
sation with Pietropola concerning her duties for that day. Foltz
was assigned to clean an oven. She asked if they had oven
cleaner for that work; Pietropola said no, but that Foltz should
use the “Master Degreaser” to do that job. Foltz proceeded to
put on latex gloves and attempted to pour the “Master De-
greaser” from the gallon bottle into the smaller spray container.
In the process, Foltz splashed some of the chemical on her right
arm. After rinsing her arm in cold water, Foltz went to a
nurse’s station and requested that an accident report be

48 This is based on the credible testimony of Spinazzola.
49 This is based on the testimony of Holly Rebuck, director of reha-
bilitation, which was detailed, consistent, and inherently probable.
Based on these factors as well as demeanor, I conclude that Rebuck is a
credible witness.
50 This is based on a composite of the credible testimony of Pietro-
pola and Rebuck. The testimony of employee Beth Carbaugh corrobo-
rates this testimony to a significant degree.
BEVERLY HEALTH & REHABILITATION SERVICES 367
filled out. Then the nurse and Foltz returned to the kitchen and
attempted to go through the material data safety sheets to ascer-
tain how the spill should be handled but they had difficulty
determining what should be done. The nurse decided that Foltz
should go to the hospital for treatment. At the hospital the doc-
tor told Foltz that she had properly rinsed her arm in cold water
and that she was free to go back to work. After returning to
work Foltz was called into Pietropola’s office; also present was
Rebuck. Foltz was given a disciplinary notice for not following
safety procedures. The notice specified that Foltz had violated
rule 2.751 and that this was her second written disciplinary no-
tice, albeit for violating different rules.52 Foltz was required to
watch safety videos before she again returned to work.
Pietropola was in the area with Foltz when the accident oc-
curred. She explained that Foltz could easily have avoided the
accident had she used a dispenser that was available to her to
pump the chemical into the container. Pietropola personally
trained Foltz in the use of the dispenser. This is the reason that
Foltz was disciplined.53
The OSHA inspection finally did occur on November 12 and
13. Foltz, along with three other employees, represented the
Union at the initial conference with the inspector; Spinazzola
and Lyttle were present on behalf of Respondent BEP. In addi-
tion, on November 12, Foltz accompanied the inspector during
the inspection of the dietary department. During that time Foltz
pointed out to the inspector some of the alleged safety defects
that already had been corrected. Spinazzola, Lyttle, and Pietro-
pola were also present. The next day the inspector returned to
the facility and another meeting occurred. During the meeting
the inspector issued a citation to Respondent BEP and com-
mented on the palpable tension between the employees and the
employer. Spinazzola suggested that Foltz become a member
of the health and safety committee, and Foltz agreed to do so.
The citation cited five items. Item 1 concerned a coffee urn
table that did not have the requisite exit access space between it
and the wall; item 2 concerned a power cord for the food slicer
that had a cut covered with an unknown substance; item 3 indi-
cated that electrical boxes had been blocked with storage carts;
item 4 revealed that a light bulb lacked a cover; and item 5
concerned the lack of training that employees received when
new or replaced chemicals were introduced into the workplace.
No financial penalties were assessed.
The next day, November 14, Spinazzola walked into the
kitchen area where Foltz was working. Because Foltz had been
invited to serve on the health and safety committee, Foltz told
Spinazzola of a number of ideas she had concerning safety
matters. During the conversation Spinazzola told Foltz that
Foltz should come into Spinazzola’s office. Because of the
grim look on Spinazzola’s face, Foltz asked if this concerned
her job. Spinazzola said that it did. Foltz asked if it could wait
until 3 p.m. so that a union representative might accompany
them. Spinazzola replied that the matter could not wait and she

51 That rule provides, “Failure to follow safety rules.”
52 The General Counsel does not allege that this discipline violated
the Act.
53 These facts are again based on the credible testimony of Pietro-
pola.
should find another representative. Foltz found a union steward
and they went to Spinazzola’s office. Spinazzola said that they
had received a complaint that Foltz had harassed another em-
ployee. She asked Foltz whether Foltz had ever said that Bev-
erly was being sued for Medicare fraud and whether Foltz had
ever told an employee that the employee had to sign a union
card within 90 days or be fired. Foltz admitted that she had
done so.54 Foltz was given a disciplinary notice that indicated
that Foltz had violated rules 1.6,55 1.12,56 and 1.2157 and that
Foltz was being suspended pending an investigation.
Prior to imposing this suspension on Foltz, Pietropola re-
ceived a telephone call at home from employee Melissa Harla-
cher. Harlacher complained that Foltz had been harassing her.
Pietropola told Harlacher to put her complaint in writing, which
Harlacher did. This document is dated November 11 and is
signed by Harlacher. It reads, “On Sunday October 27th De-
nise Foltz approached me and asked me if anyone talked to me
about the Union. I told her I know nothing about the Union.
She went on to tell me about the strike and why they did. She
said they went out for better staffing. I said I thought they went
out for more money. Denise said that Beverly Nursing homes
are the highest pd. in nursing homes. Then she said Beverly is
being sued for welfare fraud. Because they are getting paid for
beds that are empty. She said that right now they are fighting
for one of the residents to get thier [sic] air conditioner & t.v.
back. And then I said I’m not going to beat around the bush
about the union. I told her I did not want to join. For one of
the reason [sic] is it will cause a confliction [sic] in my house-
hold with my husband. He was against the union. She said she
could give me some phamphlets [sic] about the union for my
husband to read. I said Denise its not gonna work. If you
could guarantee me $1000.00 for my housepayment per month
if anything would happen I will join. She said she couldn’t do
54 This is based on the credible testimony of Spinazzola.
55 The rules maintained by Respondent BEP at the Caledonia Manor
facility were received into evidence without objection. Rule 1.6 for
that facility provides “Making false defamatory, or malicious state-
ments about a resident, associate, supervisor or the company.” As
Respondent BEP points out in its brief on the allegations arising at the
Caledonia Manor facility, this rule is substantially different from rule
1.6 described earlier, which I have found unlawful. I conclude from the
fact that the General Counsel failed to object to the introduction of this
rule, failed to introduce any specific contrary evidence concerning the
rule in effect at the Caledonia Manor facility, and failed to request a
reopening of the case to clarify the matter after Respondent BEP’s
assertion in its brief that the Caledonia Manor rule is different from the
rules applied at other facilities, that the General Counsel does not con-
test that fact and does not contend in this proceeding that the rule is
itself unlawful. In any event, I credit the testimony that rule 1.6 in
effect at Caledonia Manor is described in this paragraph. I thus con-
clude that despite the earlier general testimony that the disciplinary
rules were implemented for all the facilities in the Pennsylvania area,
based on the uncontested specific evidence concerning the Caledonia
Manor facility, for a reason unexplained in the record, Respondent
BEP’s facility at Caledonia Manor had its own rule 1.6.
56 That rule provides “Verbal or physical threats against the facility,
residents, visitors or other associates.”
57 That rule provides “Insubordination.” Spinazzolla explained that
this referred to her earlier instructions to Foltz that Foltz was to confine
her union activity to nonworking time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
that. Then she said that if Maria [Spinazzola] or anyone came
to me to sign any papers about keeping the union out she told
me not to sign them that they were all a bunch of lies, then I
said I’m not joining Denise it will cause a fight at my house.
She told me that after my 90 days I had to join or I would be
fired from my job this all happened while we were on the clock
not on brake [sic].”58
At the hearing, Foltz admitted that she had a conversation
with Harlacher while both were on working time. Foltz testi-
fied that she asked Harlacher if Harlacher had any questions
about the union and she told Harlacher that Harlacher could not
join the union until after her 90-day probationary period; Foltz
initially denied making any reference to a closed shop. Later,
when confronted with the affidavit she had given during the
investigation of the charge, Foltz admitted that she may have
used the phrase “closed shop” in the discussion with Harlacher.
Later, Foltz admitted that Harlacher said that she did not want
to join the union; that it would cause a conflict in the household
since her husband was antiunion. Foltz denied telling Harla-
cher that she would be fired if she did not join the Union. Foltz
testified that during this conversation she asked Harlacher if
Harlacher had heard from Harlacher’s sister-in-law that Cale-
donia Manor was being paid by Medicare for the beds in the
Medicare wing whether or not the beds were occupied. How-
ever, in her affidavit there is no reference to Harlacher’s sister-
in-law; instead it indicates that Foltz directly stated the allega-
tion concerning Medicare. Still later Foltz testified that she
asked Harlacher whether her sister-in-law had said anything
“about them being paid for Station 2, whether the beds were
empty or full” and Harlacher replied that she had not heard
anything. This shifting testimony supports my conclusion not
to fully credit Foltz’ testimony.
Pietropola testified that she recommended that Foltz be dis-
charged because she was harassing other employees and keep-
ing them from doing their work and that Foltz was doing this
on company time which kept Foltz from doing her work also.
On November 20, Foltz was called into Spinazzola’s office.
Accompanied by a union representative, Foltz went to the facil-
ity. Spinazzola advised Foltz that the allegations against her
were substantiated and that Foltz was fired. Foltz replied
“Good, because I have another job anyway.”
At some point later during the processing of the grievance
that Foltz had filed over her discharge, Foltz asserted that the
source of the information concerning Medicare fraud came
from another employee who told yet another employee who
told Foltz. Spinazzola was unable to explain why Respondent
BEP did not take action against these other employees.59
As indicated, the General Counsel contends that Foltz’ sus-
pension of November 14 and her discharge on November 20

58 Like the other reports, these document was not received for the
truth of the matters asserted therein. Employee Lisa Bittinger testified
that she overheard a conversation between Foltz and Harlacher some-
time in the summer or fall of 1996. However, this testimony is lacking
in details and certainty. After also considering demeanor, I conclude
that Bettinger’s testimony is of little use in determining what actually
was said on critical day in question.
59 The foregoing facts are derived from the credible testimony of
Pietropola and Spinazolla.
violated the Act. I again apply the analysis set forth in Wright
Line, supra. It is clear that Foltz continued to engage in pro-
tected activity after she was disciplined on June 21. Thus, she
filed a number of grievances, engaged in safety related discus-
sions with other employees, made safety-related complaints on
behalf of employees to Respondent BEP, filed a complaint with
OSHA concerning the employees’ safety concerns, and acted as
a representative for the Union during the OSHA inspection. It
is obvious that Respondent was aware of these activities, in-
cluding the fact that Foltz played at least some role in the filing
of the OSHA complaint. This is so because the portion of the
OSHA complaint which Respondent BEP was provided con-
tained several matters that were identical to the complaints that
Foltz had previously made to Respondent BEP. In fact, Pietro-
pola admitted that she was told by Foltz that Foltz had called
OSHA. Timing also supports the General Counsel’s case in
that Foltz’ suspension and termination occurred shortly after
the OSHA inspection. However, on an examination of the
entire record, I conclude that the General Counsel has failed to
carry his burden of showing that these activities played a part in
the Foltz’ suspension and discharge.
First, I again note the absence of animus. In an apparent ef-
fort of establishing this important element of the case, the Gen-
eral Counsel points to a number of items. First, he points to a
conversation during a grievance meeting between employee
Fahnestock and Lyttle, director of nurses, at which Foltz was
present. During that conversation Lyttle said that if Fahnestock
wanted to continue the grievance, then Lyttle would write up
Fahnestock for past violations. Fahnestock did not drop the
grievance; however, she did not receive any discipline for past
misconduct. The General Counsel does not allege that this
conduct violated the Act. In assessing the weight I give to this
incident, I note that the Lyttle’s statements were directed to
Fahnestock and not Foltz. I further note that Lyttle played no
role in the decision to discipline Foltz. I conclude that this
incident is insufficient to establish that Respondent BEP har-
bored animus towards Foltz because of her protected union
activity. Next, the General Counsel argues that the fact that
Respondent BEP disciplined Foltz as a result of the work acci-
dent on November 7 shows its animus. However, in light of
my credibility resolution of the facts surrounding that incident,
I conclude that the discipline was appropriate. The General
Counsel next turns to the telephone incident on November 7
and argues that it shows that Respondent BEP harbored animus.
To the contrary, based on the facts as I have found them, Re-
spondent BEP acted in a restrained, appropriate manner in
merely reminding Foltz of the rules concerning the use of tele-
phones for personal calls. These matters, even taken together,
fail to adequately establish the element of animus. I conclude
that the General Counsel has failed to meet his initial burden of
showing that the discipline and discharge of Foltz was related
to her protected union activities described above. I conclude
that Foltz was disciplined and then discharge for the reasons
given by Respondent BEP. Even assuming that the General
Counsel has met his initial burden on this matter, I conclude for
reasons stated below that Respondent BEP has established that
it would have meted out the same discipline even if Foltz had
not engaged in protected union activity.
BEVERLY HEALTH & REHABILITATION SERVICES 369
The evidence shows that Respondent BEP reasonably be-
lieved that despite the fact that Foltz was warned on June 21
and 24 that she was to confine her union activity to nonwork
time, she defied these instructions and continued to engage in
union activity during working time. This reasonable belief is
based on the statement given by Harlacher. The General Coun-
sel seeks to undermine the value of the Harlacher statement by
pointing to a conversation that Spinazolla had with employee
Reid where Spinazolla asked Reid whether she had been har-
assed by Foltz and whether this occurred while they should
have been working. The General Counsel reads from this that
Spinazolla was on a “fishing expedition” to unearth conduct by
Foltz. I disagree. I have already concluded that on June 21
Foltz had been lawfully disciplined for breach of the rules con-
cerning solicitation and distribution and had been warned not to
do so, again. Thus, this conversation seems less of a fishing
expedition and more of an effort by Spinazolla to enforce Re-
spondent BEP’s rules. I further note that the substance of the
conversation between Spinazzolla and Reid is not alleged to be
violative of the Act.
The General Counsel also argues that Spinazolla admitted
that after Foltz was discharged, Spinazolla learned that Foltz
claimed that the source of the Medicare fraud assertion was two
other employees and that Spinazolla admitted that she did not
discipline those employees and could not explain her failure to
do so. However, despite the inadequacy of Spinazzolla’s ex-
planation, it is apparent that Foltz’ assertion, coming as late in
the process as it did, appears to be an afterthought. I again note
that the General Counsel has not established any disparate en-
forcement of Respondent BEP’s rules concerning solicitation
and distribution of literature. Finally, I note that the General
Counsel does not argue that the content of the conversation that
Foltz had with Harlacher remained protected despite the fact
that it was done during working time in breach of a lawful rule
proscribing such conduct.
I conclude that Foltz was again suspended and then dis-
charged because Respondent BEP reasonably believed that she
continued to engage in union activity during worktime. Ac-
cordingly, I shall dismiss those allegations in the complaint.
H. The Affirmative Defenses
Respondents assert a number of affirmative defenses. They
contend that these proceedings are barred under Jefferson
Chemical Co., 200 NLRB 992 (1972). Specifically, Respon-
dents point out that the allegations in the complaint in this case
covered matters that occurred before the complaint issued in
Case 6–CA–27873, a case that was tried before an administra-
tive law judge on various dates, September 12, 1996, through
March 11, 1997. Respondents argue that since the General
Counsel failed to consolidate this case with the prior case he is
now precluded from litigating this case separately. In Jefferson
Chemical, the Board dismissed a complaint alleging that an
employer violated Section 8(a)(5) by engaging in bad-faith
bargaining when earlier the General Counsel had litigated a
case against that employer involving allegations of unilateral
changes in violation of Section 8(a)(5). The allegations on both
cases occurred in the same timespan. The General Counsel
argues that Jefferson Chemical does not apply to the situation
in this case, citing Maremont Corp., 249 NLRB 216, 217
(1980), and Harrison Steel Castings Co., 255 NLRB 1426
(1981). I agree with the position taken by the General Counsel.
Respondents do not argue that the allegations in this case are
closely intertwined with the allegations in the prior case. They
do not point out how they have been prejudiced by the separate
litigation of these cases. To the contrary, it appears that this
case raised wholly separate litigable issues quite apart from any
other pending case. “To accept Respondent’s argument . . .
would not only severely restrict the General Counsel’s discre-
tion, but also allow a respondent to delay indefinitely the ulti-
mate litigation of any charges by simply engaging in further
unlawful conduct.” Harrison Steel, supra at 1427. I conclude
that Jefferson Chemical is not meant to apply to a situation such
as this where a respondent is involving litigation spanning sev-
eral years and the General Counsel pursues the litigation in
reasonable, self-contained segments. Accordingly, this defense
lacks merit.
Respondents assert that I improperly ruled on various sub-
poena matters. Prior to the hearing, Respondents filed petitions
to revoke subpoenas issued at the request of the General Coun-
sel. I denied those petitions on the basis that the documents
sought by the General Counsel were relevant to the issues
raised by the pleadings. Respondents do not specifically indi-
cate why that ruling was in error or how they were prejudiced
by it. The General Counsel also filed a petition to revoke sub-
poenas issued at the request of Respondents. Those subpoenas
were directed to the Regional Director and concerned docu-
ments in the regional case files and other agency documents.
Inasmuch as permission had not been granted by the General
Counsel for the disclosure of those documents, I granted the
petition to revoke citing Section 102.118 of the Board’s Rules
and Regulations, Series 8, as amended. G.W. Galloway Co.,
281 NLRB 262 fn. 1 (1986), vacated on other grounds 856 F.2d
275 (D.C. Cir. 1988). Finally, the Union filed a petition to
revoke subpoenas served upon it at the request of Respondents.
I granted the Union’s petition because I determined that the
documents sought were either not relevant to any issue raised
by the pleadings in this case or the effort to obtain them was an
improper attempt to circumvent Section 102.118 of the Board’s
Rules. H. B. Zachary Co., 310 NLRB 1037 (1993). I reaffirm
my rulings on these matters.
Having argued above that the General Counsel improperly
failed to consolidate this case with a prior case, Respondents
next argue that the consolidation of the charges in this case
breached the so-called “Standstill Agreement” signed by Re-
spondents and the General Counsel. This refers to a written
agreement signed by the General Counsel and Beverly Health
and Rehabilitation Services, Inc. on March 22, 1995. That
document sets forth an agreement concerning how the parties
should proceed in light of the numerous cases that were pend-
ing on allegations that unfair labor practices had been commit-
ted. Among other things, a matter specifically addressed in the
agreement was the continuing litigation of whether the various
facilities constituted a single employer. The parties agreed to
adhere to their positions on that issue, but they also agreed that
for the duration of the agreement the General Counsel would
not continue to allege the single employer argument in certain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
identified new cases nor request extraordinary remedies in
those cases. Regarding consolidation, the agreement provides:
“Notwithstanding the foregoing, cases may be consolidated, in
accordance with the Board’s normal procedures concerning
consolidation of cases, where consolidation is deemed appro-
priate unrelated to the single employer issues litigated or the
remedies being sought in [two prior proceedings], such as for
reasons of efficiency or convenience of counsel or witnesses.”
The agreement further provides: “Nothing herein shall preclude
the General Counsel from consolidating cases in the future if
the General Counsel determines that such action is appropriate;
nor shall anything herein preclude Beverly from arguing that
any past or future consolidation of cases against Beverly is
contrary to the Board’s Rules and Regulations, a denial of due
process, or otherwise unlawful or improper.” This language
makes clear that the General Counsel may continue to consoli-
date cases in accordance with normal Board policy so long as
he does not base the consolidation on the single employer or
extraordinary remedy issues. Respondents also assert that the
consolidation of the charges in this case violate the Agency’s
Casehandling Manual and also violate due process of law, yet
they do not support those assertions with a specific rationale. I
conclude that the “Standstill Agreement” did not preclude the
consolidation of the charges in this case and, in light of the
obvious commonality of facts and issues present in this case,
that the consolidation was consistent with the Board’s rules.
Respondents also assert that the allegations of the complaint
pertaining to the Grandview facility are subject to the grievance
procedure of the applicable collective-bargaining agreement. I
have concluded above, however, that the contract covering that
facility had been terminated and, therefore, was not effect at the
time the alleged unfair labor practices occurred and thereafter.
Under these circumstances deferral to the grievance-arbitration
procedure is not appropriate.
In their answer Respondents assert a number of additional
defenses. These include that the complaint is not supported by
timely filed charges; that the allegations in the complaint are
barred by Section 10(b) and/or laches; that the charges were not
validly filed or served, and that the complaint was not validly
filed or served. However, nowhere, neither in their answer, nor
at the hearing, nor in their briefs, do Respondents expand upon
these mere assertions. I note that Respondents filed answers to
the several complaints that issued in this case; they appeared at
the hearing and had a full opportunity to participate in it, and
they filed posthearing briefs. I conclude that Respondents have
failed to meet their burden of proving these defenses. Sage
Development Co., 301 NLRB 1173, 1189 fn. 37 (1991). More-
over, under these circumstances the alleged defenses are so
vague that the General Counsel has not had a reasonable oppor-
tunity to present evidence to address them. I further conclude
that by failing to press these defenses beyond mere assertions,
Respondents have abandoned and, therefore, waived them.
Fredericksburg Glass & Mirror, 323 NLRB 165 fn. 4 (1997).
CONCLUSIONS OF LAW
1. Respondent BEP is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
operates health care facilities within the meaning of Section
2(14) of the Act.
2. Respondent BHR is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
operates health care facilities within the meaning of Section
2(14) of the Act.
3. Local 585, Local 668, and District 1199P are each labor
organizations within the meaning of Section 2(5) of the Act.
4. The following employees Respondent BEP constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time service and maintenance
associates including nursing assistants, housekeepers, dietary
aides, cooks, laundry aides, unit clerk, floor maintenance, and
activity aides employed by the Employer at its 1293 Grand-
view Road, Oil City, Pennsylvania facility; excluding all
other associates including professional associates, office cleri-
cal, management associates, central supply clerk, casual and
temporary associates, guards, and supervisors as defined in
the National Labor Relations Act.

5. The following employees Respondent BHR constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time service and maintenance
associates including nursing assistants, housekeepers, floor
care workers, dietary aides, cooks, laundry aides, physical
therapy aides, activity aides and unit secretaries employed by
the Employer at its 425 North Duke St., Lancaster, Pennsyl-
vania facility; excluding all other associates including profes-
sional associates, office clerical associates, management asso-
ciates, central supply clerk, guards, and supervisors as defined
in the National Labor Relations Act.

6. The following employees Respondent BEP constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:

All full-time and regular part-time licensed practical nurses
employed by the Employer at its Oil City, Pennsylvania facil-
ity; excluding the medical records coordinator, registered
nurses, service and maintenance employees, office clerical
employees, management employees, casual and temporary
employees and guards, professional employees, and supervi-
sors as defined in the Act.

7. By unilaterally implementing revised disciplinary rules
for unit employees at the Grandview and Duke facilities, Re-
spondents violated Section 8(a)(5) and (1) of the Act.
8. By promulgating and maintaining disciplinary rules 1.4
and 1.6 which are overly broad and tend to interfere with, re-
strain, and coerce employees in the exercise of their Section 7
rights, Respondents violated Section 8(a)(1) of the Act.
9. By unilaterally revising and reducing the hours of work of
the service and maintenance unit employees at the Grandview
facility, Respondent BEP violated Section 8(a)(5) and (1) of the
Act.
BEVERLY HEALTH & REHABILITATION SERVICES 371
10. By unilaterally revising the job descriptions and job du-
ties for the LPN unit employees at the Grandview facility, Re-
spondent BEP violated Section 8(a)(5) and (1) of the Act.
11. By suspending employee Oneita Say because she en-
gaged in protected union activities, Respondent BEP violated
Section 8(a)(1) of the Act.
12. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
13. Respondents did not violate the Act in any other manner
alleged in the complaint.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
I have found that Respondents unlawfully implemented re-
vised disciplinary rules for unit employees at the Grandview
and Duke facilities. I shall order Respondents to rescind those
rules. In addition, I shall order Respondents to rescind any
discipline issued to employees pursuant to unlawfully imple-
mented rules and make whole employees for any loss of pay or
benefits they may have suffered as a result of such discipline.
Tocco, Inc., 323 NLRB 480 (1997). However, Respondents
shall be permitted to show at the compliance stage of these
proceedings that they would have disciplined such employees
under the disciplinary rules that existed prior to the implemen-
tation of the unlawful rules. Great Western Produce, 299
NLRB 1004 (1990).
I have found that Respondents unlawfully promulgated and
maintained rule 1.4 at each of the 20 facilities listed in the com-
plaint and rule 1.6 at each of those facilities except the
Caledonia Manor facility. I shall order Respondents to rescind
those rules at those facilities. In addition, I shall order Respon-
dents to rescind any discipline issued to employees pursuant to
those rules and make whole employees for any loss of pay or
benefits they may have suffered as a result of such discipline.
Tocco, supra. However, Respondents will be permitted to show
at the compliance stage of these proceedings that they would
have lawfully disciplined such employees even in the absence
the unlawfully promulgated rules. Great Western Produce,
supra.
I have found that Respondent BEP unlawfully revised and
reduced the hours of work for certain service and maintenance
employees at the Grandview facility. I shall order Respondent
BEP to rescind the reduction in hours, restore the hours of work
to what they were prior to the unlawful reduction, and make
employees whole for the loss of pay and benefits they suffered
as a result of the reduction of hours.
I have found that Respondent BEP unlawfully issued new
job descriptions for, and changed the job duties of, the LPNs at
the Grandview facility. I shall order Respondent BEP to re-
scind the new job descriptions and job duties.
I have found that Respondent unlawfully suspended em-
ployee Oneita Say. I shall order Respondent BEP to make Say
whole for the loss of pay and benefits she suffered as a result of
the unlawful suspension.
It is possible that pursuant to the unfair labor practices I have
set forth above, employees may have been unlawfully dis-
charged or laid off. In that event Respondents must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended60
ORDER
A. Respondent Beverly Enterprises-Pennsylvania, Inc., Oil
City, Pennsylvania,its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Issuing to employees represented by Local 585 revised
disciplinary rules without first giving Local 585 an opportunity
to bargain concerning the rules.
(b) Promulgating and maintaining disciplinary rules 1.4 and
1.6.
(c) Revising and reducing the working hours of employees
represented by Local 585 without first giving Local 585 an
opportunity to bargain concerning the reduction of hours.
(d) Issuing revised job descriptions for, and changing the job
duties of, LPNs represented by Local 585 without first giving
Local 585 an opportunity to bargain concerning the job descrip-
tion and job duties.
(e) Suspending or otherwise discriminating against em-
ployee Oneita Say or any other employee because they engage
in protected union activity.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the unlawfully implemented revised disciplinary
rules, rules 1.4 and 1.6, the unlawful reduction in working
hours, and the unlawfully issued revised job descriptions and
job duties.
(b) Restore the working hours for employees to what they
were prior to the unlawful reduction.
(c) In the manner described in the remedy section of this de-
cision, within 14 days from the date of this Order, offer em-
ployees entitled to reinstatement full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(d) Make employees whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the decision.

60 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge or discipline,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharge or discipline will
not be used against them in any way.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post at its
Grandview facility in Oil City, Pennsylvania, copies of the
attached notice marked “Appendix A” and at the facilities
listed below61 copies of the attached notice marked “Appendix
B.”62 Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since May 5, 1995.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
B. Respondent Beverly Health and Rehabilitation Services,
Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing to employees represented by Local 668 revised
disciplinary rules without first giving Local 668 an opportunity
to bargain concerning the rules.
(b) Promulgating and maintaining disciplinary rules 1.4 and
1.6.

61 1. Beverly Manor of Monroeville, Monroeville, Pennsylvania; 2.
Beverly Manor of Reading, Mt. Penn, Pennsylvania; 3. Caledonia
Manor, Fayetteville, Pennsylvania: The notice at this facility shall not
contain the language referring to rules 1.6. and .4. Camp Hill Care
Center, Camp Hill, Pennsylvania; 5. Carpenter Care Center, Tunkhan-
nock, Pennsylvania; 6. Clarion Care Center, Clarion, Pennsylvania; 7.
Fayette Health Care Center, Uniontown, Pennsylvania; 8. Franklin
Care Center, Wayneburg, Pennsylvania; 9. HAIDA Manor, Hastings,
Pennsylvania; 10. Meadville Care Center, Meadville, Pennsylvania; 11.
Meyersdale Manor, Meyersdale, Pennsylvania; 12. Richland Manor,
Johnstown, Pennsylvania; and 13. York Terrace Nursing Center, Potts-
ville, Pennsylvania.
62 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the unlawfully implemented revised disciplinary
rules, and rules 1.4 and 1.6.
(b) In the manner described in the remedy section of this de-
cision, within 14 days from the date of this Order, offer em-
ployees entitled to reinstatement full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(c) Make employees whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge or discipline,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharge or discipline will
not be used against them in any way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its
Duke facility in Lancaster, Pennsylvania, copies of the attached
notice marked “Appendix C” and at the facilities listed below63
copies of the attached notice marked “Appendix D.”64 Copies
of the notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 1,
1995.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
63 1. Blue Ridge Haven Convalescent Center-West, Camp Hill,
Pennsylvania; 2. Mt. Lebanon Manor Convalescent Center, Pittsburgh,
Pennsylvania; 3. Murray Manor Convalescent Center, Murraysville,
Pennsylvania; 4. Stroud Manor, Stroudsburg, Pennsylvania; and 5.
William Penn Nursing Center, Lewistown, Pennsylvania.
64 See fn. 62, supra.
BEVERLY HEALTH & REHABILITATION SERVICES 373
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT issue to employees represented by Service
Employees International Union, Local 585, AFL–CIO, revised
disciplinary rules without first giving Local 585 an opportunity
to bargain concerning the rules.
WE WILL NOT promulgate or maintain rule 1.4 or rule 1.6.
WE WILL NOT reduce the working hours of employees rep-
resented by Local 585 without first giving Local 585 an oppor-
tunity to bargain concerning the reduction of hours.
WE WILL NOT issue revised job descriptions for, or change
the job duties of, licensed practical nurses represented by Local
585 without first giving Local 585 an opportunity to bargain
concerning the job description and job duties.
WE WILL NOT suspend or otherwise discriminate against
Oneita Say or any other employee because they engage in pro-
tected union activity.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Section
7 of the Act.
WE WILL rescind the unlawfully implemented revised dis-
ciplinary rules.
WE WILL rescind rule 1.4 and rule 1.6.
WE WILL rescind the unlawful reduction in working hours
and WE WILL restore the working hours for employees to
what they were prior to the unlawful reduction.
WE WILL rescind the unlawfully issued revised job descrip-
tions and job duties.
WE WILL, in the manner described in the remedy section of
this decision, within 14 days from the date of this Order, offer
employees entitled to reinstatement full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make employees whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
WE WILL, within 14 days from the date of this Order, re-
move from its files any reference to the unlawful discharge or
discipline, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharge or disci-
pline will not be used against them in any way.
BEVERLY ENTERPRISES–PENNSYLVANIA, INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT promulgate or maintain rule 1.4 or rule 1.6.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Section
7 of the Act.
WE WILL rescind rule 1.4 and rule 1.6.
WE WILL, in the manner described in the remedy section of
this decision, within 14 days from the date of this Order, offer
employees entitled to reinstatement full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make employees whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
WE WILL, within 14 days from the date of this Order, re-
move from its files any reference to the unlawful discharge or
discipline, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharge or disci-
pline will not be used against them in any way.
BEVERLY ENTERPRISES–PENNSYLVANIA, INC.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT issue to employees represented by Service
Employees International Union, Local 668, AFL–CIO, CLC,
revised disciplinary rules without first giving Local 668 an
opportunity to bargain concerning the rules.
WE WILL NOT promulgate or maintain rule 1.4 or rule 1.6.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Section
7 of the Act.
WE WILL rescind the unlawfully implemented revised dis-
ciplinary rules.
WE WILL rescind rule 1.4 and rule 1.6.
WE WILL, in the manner described in the remedy section of
this decision, within 14 days from the date of this Order, offer
employees entitled to reinstatement full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make employees whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
WE WILL, within 14 days from the date of this Order, re-
move from its files any reference to the unlawful discharge or
discipline, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharge or disci-
pline will not be used against them in any way.
BEVERLY HEALTH AND REHABILITATION SERVICES,
INC.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT promulgate or maintain rule 1.4 or rule 1.6.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Section
7 of the Act.
WE WILL rescind rule 1.4 and rule 1.6.
WE WILL, in the manner described in the remedy section of
this decision, within 14 days from the date of this Order, offer
employees entitled to reinstatement full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make employees whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
WE WILL, within 14 days from the date of this Order, re-
move from its files any reference to the unlawful discharge or
discipline, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharge or disci-
pline will not be used against them in any way.
BEVERLY HEALTH AND REHABILITATION SERVICES,
INC.