Beverly Health & Rehabilitation Services

National Labor Relations Board - Board Decisions

May 8, 2006

346 N.L.R.B. 1319 (N.L.R.B. 2006)

BEVERLY HEALTH & REHABILITATION SERVICES
346 NLRB No. 111
1319
Beverly Health and Rehabilitation Services, Inc., Its
Operating Regional Offices, wholly-owned sub-
sidiaries and individual facilities and each of
them and/or Its wholly-owned subsidiary Bev-
erly Enterprises-Pennsylvania, Inc., and Its in-
dividual facilities and each of them and District
1199p, Service Employees International Union,
CLC, Service Employees International Union,
Local 585, CLC and Pennsylvania Social Ser-
vices Union Local 668 a/w Service Employees In-
ternational Union.1 Cases 6–CA–28276, et al.
May 8, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 23, 2000, Administrative Law Judge Irwin
H. Socoloff issued the attached decision. The General
Counsel and the Respondent filed exceptions, supporting
briefs, and answering briefs. The Respondent filed a
reply to the General Counsel’s answering brief.
The Respondent owns and operates nursing homes
throughout the United States. The charges in this pro-
ceeding are based on the Respondent’s conduct at 19 of
its Pennsylvania facilities from late 1995 though early
1997. The conduct that is alleged to have been unlawful
occurred primarily after the expiration of collective-
bargaining agreements at 18 facilities and an April 1996
strike at 15 facilities, and includes alleged retaliation
against employees for engaging in union activity, unilat-
eral changes in terms and conditions of employment, and
the withdrawal of recognition of the Union at 2 facilities.
The 19 facilities involved here were also the subject of
litigation in Beverly Health & Rehabilitation Services,
335 NLRB 635 (2001)2 (Beverly IV), and the Respon-
dent’s conduct that gave rise to the charges here occurred
within approximately the same time period as the con-
duct that gave rise to the allegations in Beverly IV. The
complaint in this proceeding issued during the litigation
of the allegations in Beverly IV, and the General Counsel
moved to consolidate the cases at that time. The General
Counsel’s motion was denied, and the charges were sub-
sequently litigated in a separate proceeding before Judge
Socoloff.3

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO on July 25,
2005.
2 Enfd. in part 317 F.3d 316 (D.C. Cir. 2003).
3 The Respondent argues that the prosecution of this case is barred
under the standard set forth in Jefferson Chemical Co., 200 NLRB 992
(1972). We agree with the judge’s conclusion, for the reasons stated in
his decision, that this argument has no merit.
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,4 and conclusions5 as
modified below and to adopt the recommended Order as
modified and set forth in full below.
I. THE RESPONDENT’S REFUSAL TO REINSTATE STRIKERS
Beginning on April 1, 1996,6 the Union7 engaged in a
3-day strike at 15 of the Respondent’s facilities, includ-
ing Fayette Health Care Center, Haida Manor, and Mt.
Lebanon Manor. Afterward, the Respondent refused to
reinstate the following employees who had participated
in the strike: Mary Myers at Fayette; Tammy Rummel
and Cathy Bobby at Haida Manor; and Sandra West and

4 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
5 The Respondent has not excepted to the judge’s conclusions that it
violated the Act by threatening employees who had participated in a
strike at Franklin Care Center and Murray Manor with reduced work
hours, threatening employees at Mt. Lebanon that they would lose their
jobs if they took part in a strike, instructing employees at Meadville
Care Center and Beverly Manor of Lancaster to remove their union
insignia, telling employees at Meadville that certain rules of conduct
applied only to employees who had engaged in a strike, and reducing
the hours of certified nursing assistant (CNA) Rickie Piper because she
engaged in union activities. The General Counsel has not excepted to
the judge’s dismissal of allegations that the Respondent acted unlaw-
fully by disciplining employees Anita Selfridge and Susan Teetsel.
The Respondent concedes that it made a number of unilateral
changes in employees’ terms and conditions of employment following
the expiration of the collective-bargaining agreements at many of its
facilities. The Respondent asserts, however, that it was privileged to
make such changes by the management-rights clause of the expired
agreements. Despite the fact that the Board has repeatedly rejected the
Respondent’s argument, and at least two courts of appeals have af-
firmed the Board on this issue, the Respondent reiterates it here. Chair-
man Battista and Member Schaumber note that, although they did not
participate in any of the previous Board decisions that rejected the
Respondent’s argument regarding the survivability of management-
rights clauses, the Board’s rejection is extant Board law. Moreover,
they would find that, without regard to whether the management-rights
clause survived, the Respondent would be privileged to have made the
unilateral changes at issue if the Respondent’s conduct was consistent
with a pattern of frequent exercise of its right to make unilateral
changes during the term of the contract. Here, however, the Respon-
dent has only asserted in a conclusory manner that it had such a prac-
tice. It has failed to support its assertion with record evidence. Ac-
cordingly, they would find that the Respondent’s post-expiration uni-
lateral changes were unlawful.
6 All dates hereafter are in 1996, unless otherwise indicated.
7 The Union is Service Employees International Union, CLC. The
Charging Parties are affiliates of the Union. The term “Local Union”
refers to the particular local union certified to represent the employees
at the named facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1320
Susan Chojnicki at Mt. Lebanon. The judge found that
the Respondent’s refusal to reinstate the employees vio-
lated Section 8(a)(3) and (1) of the Act. For reasons dis-
cussed below, we reverse.
The nature of the strike in April and the adequacy of
the Union’s strike notice under Section 8(g) of the Act8
have previously been litigated in Beverly IV. The Board
found that the strike notice complied with Section 8(g),9
that the strike was an unfair labor practice strike, and that
the Respondent violated the Act by refusing to promptly
reinstate all employees who took part in the strike. Sub-
sequently, the Respondent appealed the Board’s decision
to the U.S. Court of Appeals for the District of Columbia
Circuit. 317 F.3d 316 (D.C. Cir. 2003).10 Contrary to
the Board’s conclusions, the court held that the strike
notice did not comply with the requirements set forth in
Section 8(g), and that the strike was therefore not pro-
tected activity.11 Accordingly, the court found that the
Respondent had no duty to reinstate any of the striking
workers, and refused to enforce the Board’s Order.
We accept the court’s decision as controlling here.12
See Dynatron/Bondo Corp. 333 NLRB 750, 751 fn. 7
(2001). Thus, we find that the Respondent had no obli-
gation to reinstate the above-mentioned employees, and
its failure to do so did not violate the Act.13

8 Sec. 8(g) provides:
A labor organization before engaging in any strike, picketing, or other
concerted refusal to work at any health care institution shall, not less
than ten days prior to such action, notify the institution in writing . . .
of that intention . . . . The notice, once given, may be extended by the
written agreement of both parties.
9 On March 14 and 15, the Union notified the Respondent that the
Union would engage in a strike on March 29. Two days before the
strike deadline, the Union sent a second notice that extended the dead-
line to April 1. Relying on Greater New Orleans Artificial Kidney
Center, 240 NLRB 432 (1979) (union may unilaterally extend strike
deadline up to 72 hours), the Board found that the extension of the
strike notice was substantially in compliance with Sec. 8(g).
10 On March 7, 2003, the Respondent filed with the Board a motion
requesting that the Board take administrative notice of the court’s deci-
sion. We grant the motion.
11 The court rejected the Board’s Greater New Orleans analysis and
held that the plain meaning of the language in Sec. 8(g) precluded any
unilateral change in the notice once it was given. See 317 F.3d at 320–
321.
12 Subsequently, in Alexandria Clinic, P.A., 339 NLRB 1262 (2003),
enf. 406 F.3d 1020 (8th Cir. 2005), the Board overruled Greater New
Orleans and held that Sec. 8(g) does not permit a union to unilaterally
alter the date or time of the strike deadline once notice has been given
without first obtaining the consent of the employer. However, because
we accept the court’s decision as controlling, we find it unnecessary to
reconsider the validity of the strike notice in light of Alexandria Clinic.
Although Member Liebman agrees that the court’s decision in Bev-
erly IV is controlling here, she adheres to her dissenting position in
Alexandria Clinic.
13 We affirm the judge’s finding that Michael Walker, administrator
of Meyersdale Manor, unlawfully threatened employee Linda Cochran
with job loss if she took part in a strike. The record indicates that the
II. THE 8(A)(1) ALLEGATIONS
A. Videotaping
On April 4, security guards at the Respondent’s Haida
Manor facility videotaped former strikers as they re-
turned to work. The judge found that the videotaping
constituted unlawful surveillance of protected activity.
We disagree. The record shows that the employees were
not actually engaged in protected activity at the time of
the videotaping, but were merely reporting for work.
Therefore, we reverse the judge and dismiss that allega-
tion.14
B. Alleged Threats at Haida Manor
The judge found that Assistant Director of Nursing
Nancy Piatek unlawfully threatened CNA Cathy Bobby
with discharge if she did not report to work during the
April strike, and that Bobby unlawfully threatened appli-
cant Margaret Moore that she would not be hired unless
she agreed to cross a picket line. As discussed below, we
reverse the judge’s finding as to Bobby, and affirm his
finding as to Moore.
The record shows that Piatek called Bobby at home on
April 1, the first day of the strike, and left a message that
Bobby was to report to work on April 3, even though she
had not been scheduled on that day. On April 2, Bobby
called Piatek and said that she was unable to work as
requested because she had to take her mother to a doc-
tor’s appointment. Piatek then informed Bobby that she
would not have a job if she could not work for at least an
hour either before or after the appointment.
Unlike the judge, we do not find that Piatek threatened
to discharge Bobby for engaging in protected activity.
Under the facts presented, Bobby’s refusal to work dur-
ing the strike was either in direct support of the strike,
which we have found was unprotected due to the 8(g)
notice deficiencies, or it was based on the asserted reason
that she had to take her mother to a doctor’s appoint-
ment, a personal reason that does not implicate the pro-
tections of Section 7 of the Act. Thus, there is no evi-
dence that Bobby’s refusal to work on April 3 was con-

threat was made about a week before the strike and before the Union
sent its second notice postponing the strike. Therefore, the question of
whether the strike was unprotected activity is not relevant to a finding
of the unlawful threat.
14 We agree with the judge, for the reasons stated in his decision, that
the Respondent’s videotaping of off-duty employees engaging in a
strike at Haida Manor on June 2 was unlawful. See Robert Orr-Sysco
Food Services, 334 NLRB 977 (2001), and cases cited therein.
Member Liebman would find it unnecessary to pass on whether the
incident on April 4 involving videotaping, described above, was unlaw-
ful because such a finding would be cumulative, in light of the surveil-
lance violation found on June 2, and would not substantially affect the
remedy.
BEVERLY HEALTH & REHABILITATION SERVICES 1321
nected to any protected activity. Accordingly, we find
no violation.
With regard to Moore, the record shows that she was
interviewed by Piatek for a position as a CNA in early
March, before the Union notified the Respondent of its
intention to strike. Moore testified that during the inter-
view, Piatek told her that “there was talk of a strike,” and
that “if the strike occurred, they would need people to
cross the picket line because they were going to replace
the workers.” Piatek then asked Moore if she would
cross a picket line, and told her that she would not be
hired unless she agreed.
The Respondent does not dispute that Piatek condi-
tioned Moore’s hiring on her willingness to cross a
picket line, but argues that Piatek’s actions were lawful
because Moore was hired as a strike replacement. We
disagree. There is no evidence that the Respondent ever
indicated to Moore, either before or during the interview,
that the position for which she was being considered was
that of a replacement worker. Thus, we find no merit in
the Respondent’s argument, and affirm the judge’s find-
ing of the violation.15

15 The judge also found that the Respondent violated Sec. 8(a)(1) of
the Act at the York Terrace facility when it suspended five CNAs who
refused to work mandatory overtime. Member Schaumber dissents
from this finding. The expired contract gave the Respondent the right to
mandate that CNAs work overtime consistent with procedures in the
contract. On May 12, 1996, an employee called in sick, leaving the
facility one CNA short under State regulations. After unsuccessfully
seeking volunteers, the Respondent mandated that an on-duty CNA
work overtime and five CNAs successively refused to do so. The Re-
spondent suspended the five for that refusal. All agree that the CNAs
acted concertedly in refusing the overtime. Member Schaumber, how-
ever, finds the CNAs’ action was not protected because at the time their
refusal to work overtime placed the Respondent in violation of State
law, i.e., their refusal left the Respondent one CNA short under State
regulations. In such circumstances, the refusal of the CNAs to work the
mandatory overtime was “unlawful” and was not a protected activity.
See Keyway, a Division of Phase, Inc., 263 NLRB 1168, 1169 (1982)
(“Conduct such as a concerted work stoppage . . . , even if engaged in
by health care institution employees, is protected unless it is unlawful,
violent, in breach of contract, or otherwise indefensible (emphasis
added, citation omitted).” The Respondent was able to find someone to
cover the shift after it suspended the five employees. This does not
convert the prior lawful suspensions into unfair labor practices. Nor
was there a need for the Respondent to inform the employees their
refusal to work placed the Respondent in noncompliance with State
regulations. The Respondent informed each of the CNAs that they
would be disciplined because they were refusing to perform an assigned
duty after being given a direct order to do so.
In affirming the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by suspending employees who refused to work overtime,
Chairman Battista and Member Liebman rely on the judge’s finding
that the Respondent admitted that the severity of the discipline was
linked to the concerted nature of the employees’ refusals. They further
rely on evidence that, according to the testimony of the director of
nursing at this facility, the Respondent was successful in locating a
replacement for the person who had called in sick, and the evidence
III. THE 8(A)(3) ALLEGATIONS
A. Joyce Kircher
We agree with the judge that the Respondent unlaw-
fully discharged employee Joyce Kircher for making
negative statements to a local newspaper reporter about
the quality of care at Meadville Care Center. Kircher
was contacted by the reporter shortly after the strike, at
which time she expressed concern that patient care at
Meadville had deteriorated since the Respondent had
replaced the striking workers. Thus, contrary to the Re-
spondent’s assertion, Kircher’s statement was related to
the labor dispute. Moreover, there is no evidence that
Kircher acted with malicious intent or that she knowingly
gave false statements. In these circumstances, the Board
has found such statements to be protected. See, e.g., St.
Luke’s Episcopal Presbyterian Hospital, 331 NLRB 761,
761–762 (2000), enf. denied 268 F.3d 575 (8th Cir.
2001)16; Community Hospital of Roanoke Valley, 220
NLRB 217, 223 (1975), enfd. 538 F.2d 607 (4th Cir.
1976). Thus, we affirm the judge.
B. Rose Girdany
Rose Girdany was employed by the Respondent at Mt.
Lebanon Manor. Girdany was a union officer, and par-
ticipated in the April strike. Shortly after the strike, Gir-
dany received a letter from the Respondent informing her
that she was “not entitled to reinstatement at [that] time,
but [would] be placed on a preferred hiring list based on
seniority.” Although Girdany was not immediately rein-
stated after the strike, she remained involved in the proc-
essing of employee grievances.

does not show that the suspensions were announced prior to the re-
placement being located. Accordingly, the Respondent was never
short-staffed under the applicable State regulations. Moreover, there is
no evidence to indicate that employees who refused to work overtime
were ever informed or were otherwise aware that their refusals would
have resulted in the Respondent not being in compliance with State
regulations.
16 In St. Luke’s Episcopal-Presbyterian Hospital, the Board held that
an employee who had appeared on a television newscast and criticized
the respondent for engaging in conduct that jeopardized patient care
was engaged in protected activity, and that the respondent unlawfully
discharged her because of that activity. In finding the conduct to be
protected, the Board found that the statements were “neither disloyal,
recklessly made, nor maliciously false.” Id. at 762.
On appeal, the U.S. Court of Appeals for the Eighth Circuit refused
to enforce the Board’s decision. Although the court acknowledged that
the employee did not act maliciously, the court found that the state-
ments were materially false and misleading, and that the employee’s
conduct was therefore unprotected. 268 F.3d at 580–581.
Even assuming that we were to apply the court’s standard in this
case, we conclude that there is no basis for finding that Kircher’s
statement was unprotected. In contrast to the evidence proffered by the
respondent in St. Luke’s, the Respondent here has failed to proffer any
specific evidence to disprove Kircher’s statements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1322
Approximately 2 months after she had received the
Respondent’s letter, Girdany went to Mt. Lebanon for a
grievance meeting. She spoke with Administrator An-
thony Molinaro, who told her that he did not like her
attitude or her “mouth,” that she no longer worked there,
and that she had to leave the premises.
The judge concluded that Molinaro effectively dis-
charged Girdany because of her union activities, and that
the discharge was unlawful. We agree. Unlike the
above-mentioned strikers who the Respondent refused to
reinstate (see sec. I, supra), the Respondent placed her on
a preferred hiring list. As a result, Girdany retained her
employee status after the strike.17 Although the Respon-
dent claims that it did not discharge Girdany, the evi-
dence shows that Girdany had a reasonable basis to be-
lieve that she had been discharged, and the Respondent
failed to take the necessary steps to clarify that she had
not been terminated. See Grosvenor Resort, 336 NLRB
613 (2001); Kolkka Tables & Finnish-American Saunas,
335 NLRB 844, 845–847 (2001). Accordingly, we af-
firm the judge.18
C. Susan Spiess
On May 15, the Respondent suspended union delegate
Susan Spiess in connection with an incident that occurred
in the employee breakroom at the York Terrace Nursing
Center. Prior to the start of her shift that day, Spiess was
in the breakroom discussing with employee Diane
Bridges a pending grievance over the discharge of a co-
worker. In addition to Bridges, there were several other
employees in the breakroom at the time, including Lucy
Myro. The credited evidence shows that at some point
during the conversation, Myro stated that, in her opinion,
the grievant who was the subject of the discussion did
not deserve to be reinstated. Spiess then told Myro in a
loud voice to “mind [her] f—king business.” Myro be-
gan to cry and left the room. She then reported the inci-

17 The Respondent concedes that it did not treat Girdany the same as
the other strikers that it refused to reinstate. In contrast to those em-
ployees, the Respondent put Girdany on a preferential rehire list.
Whether or not the Respondent had an obligation to put Girdany on the
preferential rehire list, once it did so, it forfeited its right to rely on her
participation in the unprotected strike to justify her subsequent dis-
charge. See Virginia Mfg. Co., 310 NLRB 1261 (1993) (employer that
expressed an initial willingness to reinstate strikers who had engaged in
misconduct violated the Act by subsequently discharging them for that
misconduct). Cf. Sec. 8(d)(4) (striker’s loss of employee status “shall
terminate if and when he is reemployed” by the employer). Moreover,
such a justification is inconsistent with the Respondent’s defense that it
did not actually discharge Girdany.
18 Member Schaumber disagrees with his colleagues and respectfully
dissents. In his view, Molinaro’s words did not constitute a discharge
but the administrator’s expression of a fact; Girdany was not yet rein-
stated, thus she did not work at the facility. Consequently, he would
dismiss this allegation.
dent to a supervisor. Later that day, Spiess was sent
home and suspended for 3 days, based on the breakroom
incident.
Applying a Wright Line analysis,19 the judge found
that the suspension was unlawful because the Respon-
dent failed to demonstrate that Spiess would have been
suspended in the absence of her union activity. We agree
with the judge that the suspension was unlawful; how-
ever, we find Wright Line to be inapplicable here.
It is clear that Spiess’ discussion of a pending griev-
ance was a form of Section 7 activity, and that she was
suspended therefor. Thus, the appropriate inquiry is
whether Spiess’ use of profane language in the exchange
with Myro during that discussion removed her from the
protection of the Act. See, e.g., Felix Industries, 339
NLRB 195 (2003). To determine whether an employee
who is otherwise engaged in protected activity loses the
protection of the Act due to opprobrious conduct, the
Board considers the following factors: (1) the place of
the discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4)whether
the outburst was, in any way, provoked by an employer’s
unfair labor practice. Atlantic Steel Co., 245 NLRB 814,
816 (1979). As discussed below, we find that a balanc-
ing of these factors here does not compel a finding that
Spiess’ conduct lost the protection of the Act.
With respect to the first (place) and fourth (provoca-
tion) factors, we find that those do not weigh in favor of
or against finding Spiess’ conduct unlawful.20
As to the second factor, we find that the subject of the
conversation—the merits of a grievance seeking the rein-
statement of a coworker—weighs in favor of finding that
Spiess was engaged in protected conduct. See Aroostook
County Regional Opthalmology Center, 317 NLRB 218
(1995), enf. denied on other grounds 81 F.3d 209 (D.C.
Cir. 1996) (discussion of grievances among employees
with a view toward pursuing concerted activity is pro-
tected under the Act).
Finally, as to the third factor (nature of the outburst),
we find that Spiess’ conduct “consisted of a brief, verbal

19 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
20 In regard to the first factor, the record shows that the exchange be-
tween Spiess and Myro occurred off the clock in a nonpatient care area,
and there is no evidence that the conversation was overheard by pa-
tients or visitors, or that it otherwise caused any disruption of opera-
tions at the facility. Thus, this factor does not weigh for or against
finding Spiess’ conduct protected.
With respect to the fourth factor, the Respondent did nothing to pro-
voke Spiess’ outburst, and although the employees were discussing a
grievance against the Respondent at the time of the outburst, Spiess was
obviously reacting to her coworker’s comments, and not any action by
the Respondent. This factor does not weigh for or against finding Spi-
ess’ conduct protected either.
BEVERLY HEALTH & REHABILITATION SERVICES 1323
outburst of profane language” and was unaccompanied
by insubordination, physical contact, or threat of physical
harm. See generally Felix Industries, supra at 196.
Moreover, it is well established that the Act allows em-
ployees some leeway in the use of intemperate language
where such language is part of the “res gestae” of their
concerted activity. Thor Power Tool Co., 148 NLRB
1379, 1380 (1964), enfd. 351 F.2d 584 (7th Cir. 1965).
See also Traverse City Osteopathic Hospital, 260 NLRB
1061, 1061–1062 (1982), enfd. mem. 711 F.2d 1059 (6th
Cir. 1983) (employee’s use of profanity during conversa-
tion urging employees to support the union was not so
egregious as to remove conduct from the Act’s protec-
tion). Given the subject of the conversation and the rela-
tively isolated location in which it occurred, we find that
this brief outburst does not tip the balance in favor of
finding the conduct to have been unprotected.21
In sum, the balance of these factors favors a finding
that Spiess’ conduct was protected. Therefore, we con-
clude that the judge properly found that the Respondent’s
suspension of Spiess for engaging in that conduct was
unlawful. Contrary to our dissenting colleague, we
would not find that the location and the nature of the
breakroom exchange between two employees, occurring
away from patient-care areas, should cause this conduct
to lose the Act’s protection solely because the Respon-
dent provides nursing care to its clients. The dissent’s
approach would effectively ban any employee discussion
about grievances that might lead to increased tension in
the work environment regardless of where that discus-
sion took place, and is in conflict with the general stan-
dards for regulating union solicitations in health care
facilities. See generally NLRB v. Baptist Hospital, 442
U.S. 773, 781 (1979).22

21 Chairman Battista did not participate in Felix Industries, and he
expresses no view as to whether it was correctly decided. However, he
finds that Spiess’ conduct is not as reprehensible as that in Felix, and he
agrees with the judge that this conduct was not so outrageous as to lose
the Act’s protection.
22 Member Schaumber agrees with his colleagues that the second At-
lantic Steel factor weighs in favor of finding Spiess’ conduct protected
and that the fourth factor is neutral. However, he finds the first and
third factors weigh in favor of finding Spiess’ conduct unprotected.
Spiess is not any employee. Only 6 months earlier, she received a
written warning for being “disrespectful and hostile to fellow associ-
ates during meetings, breaks and resident cares.” (Emphasis added.)
Further, Respondent is not any employer. It operates a nursing home
where the maintenance of a quiet environment is necessary for the
health and well being of its elderly patients. Thus, an employer’s re-
sponsibility to foster a harmonious working environment and to take
corrective action to avoid the creation of a hostile work environment is
also necessary for the Respondent to fulfill its obligations to its resi-
dents and their families. While Spiess’ profane verbal attack, which
occurred in the breakroom of the nursing home, may not have been
heard by the residents or their visitors, it was the second incident in 6
D. Glenda Smith
We agree with the judge that the Respondent did not
violate the Act when it suspended employee Glenda
Smith for referring to a supervisor in a derogatory man-
ner. The evidence shows that on September 19, a group
of employees, including Smith, were handing out union
leaflets near the driveway exit of the William Penn Nurs-
ing Center. Around 3 p.m., Smith saw Assistant Director
of Nursing Kimberly Stuck driving out of the facility.
Smith stepped into the driveway and attempted to flag
Stuck down so that she could inquire about a convenient
time to discuss Smith’s vacation request. Stuck smiled
and waved at Smith, but continued to drive past her.
Smith, who believed that Stuck had attempted to run her
down, then turned to another employee and, in a voice
loud enough for Stuck to hear, referred to Stuck as “that
bitch.” Subsequently, the Respondent suspended Smith
for 3 days.
Essentially applying a Wright Line analysis, the judge
found that the General Counsel had met his threshold
burden but that the Respondent had demonstrated it
would have suspended Smith for her disrespectful behav-
ior towards Stuck even absent its unlawful motivation.
We affirm the judge’s findings.23 We do not think that
the judge made inconsistent findings. He found that
Smith believed that Stuck attempted to run her over.
However, Stuck did not share that view and, thus, Stuck

months and was the kind of attack that can provoke further confronta-
tion. At the least, it creates tension among employees which is not
easily left at the breakroom door. A profane attack in a nursing home
breakroom in response to an employee’s comment with regard to a
grievance is not a protest addressed to picket line crossovers during a
strike where a combination of exuberance and tension might reasonably
lead to harsh and profane language. Under these circumstances, Mem-
ber Schaumber would find Spiess’ outburst at a fellow nursing home
employee unprotected. In his view, Respondent’s discipline in sus-
pending Spiess was a measured response consistent with its responsi-
bilities as an employer and nursing home operator and finding no viola-
tion in it is hardly “in conflict with the general standards for regulating
union solicitations in health care facilities,” as his colleagues claim.
Rather, it is an acknowledgment that Spiess’ conduct went beyond the
bounds of protected activity and accordingly that she was appropriately
disciplined for it.
23 Member Liebman disagrees and would find that the Respondent
did not show that, notwithstanding its unlawful motivation, it would
have disciplined Smith for calling Stuck “that bitch.” The majority
adopts the judge’s analysis, which is based on contradictory findings.
The judge first found that while Smith was leafleting, Stuck approached
in her vehicle and drove by Smith “in a manner leading Smith to be-
lieve that Stuck was attempting to run her over.” Nonetheless, the judge
concluded, inconsistently, that Smith’s outburst “that bitch” was “an
apparently unprovoked remark.” Given the former finding, it is incon-
ceivable that, absent unlawful motivation, the Respondent would have
suspended an employee for excitedly uttering “that bitch” in response
to what she perceived was a vehicle driving towards her. Member
Liebman would therefore not find that the Respondent has met its bur-
den of proof.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1324
believed that Smith’s outburst was unprovoked. Smith
was suspended because of that perceived unprovoked
outburst. There is no evidence that the Respondent
would have tolerated such disrespectful conduct towards
a supervisor, or that Smith received disparate treatment.
Accordingly, we dismiss the allegation.
E. Janet Crissman
Janet Crissman is employed by the Respondent as a
CNA at Clarion Care Center. Crissman is a union dele-
gate whose duties include representing the Union in the
grievance process. The judge found that the Respon-
dent’s discipline of Crissman on two separate occasions
was motivated by antiunion animus. The Respondent
has excepted to the judge’s findings and contends that it
has demonstrated that the discipline was lawful in both
instances. We find merit in the Respondent’s exceptions.
On April 9, Crissman was disciplined for failing to re-
spond to a patient’s tabs unit, which is an alarm attached
to a patient who is at risk of falling from his bed. The
unit had gone off several times that morning as the pa-
tient moved around in his bed. Crissman had responded
to the alarm each time, and found the patient was in no
danger. When the unit went off again as Crissman was
distributing breakfast trays, she ignored it and continued
to distribute the trays.
As Crissman was distributing trays, Supervisor Sally
Doran got off the elevator and heard the alarm. Doran
walked past Crissman towards the patient’s room and
told Crissman that she should be getting that tabs unit.
Crissman assumed that Doran was going to respond to
the alarm, continued to distribute the trays, and did not
attend to the alarm. Later that day, Crissman received a
written warning. Crissman was not asked to explain why
she failed to respond to the tabs unit before the warning
was issued.
The judge found that the Respondent’s failure to solicit
an explanation from Crissman is evidence of an unlawful
motive. We disagree. Crissman does not dispute that it
was her responsibility to respond to the tabs unit, and
that she did not respond even after Doran told her to do
so. Crissman’s conduct in failing to respond to the pa-
tient’s tabs unit was directly observed by Supervisor
Doran, so that it was unnecessary for the Respondent to
investigate the incident further in order to ascertain
whether the basis for the discipline had occurred. In
these circumstances, we do not find that the Respon-
dent’s failure to interview Crissman about the incident is
indicative of an unlawful motive. Cf. NKC of America,
Inc., 291 NLRB 683 (1988) (employer’s failure to con-
duct thorough investigation of prounion employee’s role
in altercation with antiunion employee prior to discharg-
ing prounion employee was evidence of unlawful mo-
tive). Therefore, we find no violation.
Similarly, the judge found that a written warning is-
sued to Crissman on April 19 was unlawful based on the
Respondent’s failure to interview Crissman before the
discipline was issued. As explained more fully by the
judge, the evidence shows that some time after Crissman
had taken a patient to the bathroom that morning, the
patient complained to Nursing Supervisor Tammy
Shreckengast. Shreckengast examined the patient and
found that he had not been properly cleaned after toilet-
ing. Crissman was then given a written warning for fail-
ing to properly perform her job duties.
As with the incident on April 9, we do not find that the
Respondent’s failure to ask Crissman for an explanation
prior to issuing the discipline demonstrates that the Re-
spondent acted with an unlawful motive. Crissman does
not dispute that she was the one who was responsible for
the patient’s toileting that morning, and the credited tes-
timony establishes that the patient’s condition thereafter
was not consistent with proper care. In these circum-
stances, where the supervisor observed directly the con-
dition of the patient, the lack of further investigation by
the Respondent does not support a conclusion that this
discipline was unlawful. Accordingly, we find no viola-
tion.
F. Jean Haver
Jean Haver was employed as a CNA at Beverly Manor
of Lancaster from 1985 until September 1996, when she
was discharged by the Respondent for excessive absen-
teeism. The judge found that Haver, the chief shop stew-
ard at Lancaster, was discharged because of her union
activities. For reasons discussed below, we reverse.
On August 13, Haver called the facility and reported
that she was not coming to work because she was ill.
Later that day, Executive Director Larry Ayers observed
Haver walking down the street with her granddaughter.
Several days later, Ayers asked Haver to provide a doc-
tor’s excuse for her absence. Haver never provided the
excuse. Consequently, Haver was charged with a viola-
tion of the Respondent’s attendance policy.24 She was
suspended on August 26 pending an investigation, and
discharged on September 24.
Contrary to the judge, we find that the Respondent has
established that Haver was discharged in accordance with
its progressive disciplinary policy, which provides that
an employee who has received three written warnings for
rules violations within a 12-month period may be sus-

24 The attendance policy provides that the Respondent may require a
doctor’s excuse to validate an employee’s illness, and that failure to
provide such an excuse may be grounds for disciplinary action.
BEVERLY HEALTH & REHABILITATION SERVICES 1325
pended and discharged for a subsequent offense. The
record indicates that the written warning issued to Haver
because of her absence on August 13 was her fourth vio-
lation of the disciplinary policy.25 Thus, it is apparent
that the Respondent’s actions were consistent with its
disciplinary policy when it suspended and discharged
Haver.
Further, the record demonstrates that Haver had re-
ceived numerous warnings about her attendance that
dated back to 1991. Although these earlier warnings are
outside of the 12-month period considered for purposes
of employee discipline, they support the Respondent’s
assertion that it had a longstanding concern about
Haver’s absenteeism, and that it was acting pursuant to
that concern when it decided to discharge Haver. Ac-
cordingly, we reverse the judge and dismiss the allega-
tion.26

25 Although the first two written warnings Haver received were not
introduced in evidence, a written warning issued to Haver on July 31
indicated that it was her third written warning within the relevant time
period.
26 Member Schaumber disagrees with his colleagues’ adoption of the
judge’s findings that the Respondent violated Sec. 8(a)(3) by suspend-
ing and then discharging Licensed Practical Nurse (LPN) John Wilson
from its Monroeville facility and disciplining employee Leatha Smith at
its Meadville facility.
The Respondent contended that it discharged Wilson for resident
neglect and falsification of records. The judge found that the reasons
the Respondent proffered were pretextual and were motivated by anti-
union animus. Member Schaumber respectfully disagrees. He would
find that the Respondent met its rebuttal burden. A resident, Feldmeier,
separately reported to CNA Cynthia DePosto and LPN Rita Pistininzi
that Wilson presented her medication crushed in applesauce after she
had requested that the medication not be crushed in her food but given
to her whole. In response, Wilson threw the applesauce away and left
Feldmeier’s room, as a result of which Feldmeier never received her
medication that day. Wilson did not record his failure to give Feld-
meier her medication. As can be imagined, the alleged misconduct was
in direct contravention of the Respondent’s policies. When the incident
reached the attention of higher management, Director of Nursing
(DON) Bonnie Forney interviewed Feldmeier as well. Feldmeier re-
counted the same set of facts to Forney as she had to DePosto and
Pistininizi Without any explanation, the judge found there was “credi-
ble record evidence” that Feldmeier was “confused and suffered from
memory lapses” but Feldmeier’s description of the incident to Forney
was consistent with what she told DePosto and Pistininzi. While the
record does ultimately reveal a possible source for the judge’s comment
that Felmeier was confused (i.e., the testimony of Josie Belice), the
judge failed to acknowledge it or the contrary testimony of DON For-
ney that Feldmeier, as a Lou Gehrig’s disease patient, had a weakened
physical condition but “remains alert, very oriented.” Given the failure
of the judge to discuss this testimony, Member Schaumber gives little
weight to the judge’s finding that Feldmeier was confused. And, while
the judge faulted the Respondent for failing to interview Wilson before
it discharged him, the General Counsel presented no evidence showing
that employees at Monroeville, who were not prounion, were treated
differently than Wilson during similar investigations. In these circum-
stances, Member Schaumber finds the Respondent has demonstrated it
would have discharged Wilson even in the absence of his protected
activities. See Vencor Hospital-Los Angeles, 324 NLRB 234 (1997)

(discharge lawful where employee committed patient error in violation
of hospital’s protocol).
The judge also found that the Respondent disciplined employee
Leatha Smith for discriminatory reasons. In particular, the judge found
that the Respondent “disciplined Smith . . . for an offense that they have
not shown she committed” and the Respondent “summarily acted on
the reports of new hires without even seeking to obtain her version of
events.” Member Schaumber disagrees. DON Julie Walters disci-
plined Smith by reprimanding her for failing to respond to a patient’s
call bell. Walters relied on two eye witness reports and followed her
normal procedure in preparing the reprimand. While the judge found
that Walters handed the reprimand to Smith without asking for an ex-
planation, the evidence does not support that finding. Smith simply
testified, “I don’t believe so” when asked whether Walters asked Smith
for an explanation. Against this equivocal testimony, Walters testified
specifically that following her usual routine, she told Smith what had
been reported to her and gave her the opportunity to respond by adding
comments in the “associate comments” section of the reprimand. Wal-
ters testified that if an employee adds comments in the “associate
comments” section then she would “look at that and will then follow
up, to what we feel is appropriate.” Smith, however, said nothing nor
did she add any comments; she simply signed the reprimand. In these
circumstances, in the absence of any demeanor based credibility deter-
mination, Member Schaumber finds no violation in the reprimand
issued to Smith assuming a failure to give Smith an opportunity to give
a verbal explanation would render the reprimand a violation.
In affirming the judge’s finding that the Respondent unlawfully dis-
ciplined employees Wilson and Smith, Chairman Battista and Member
Liebman agree with the judge that the Respondent seized on pretextual
bases to discipline long-term employees with good work records. As to
employee Wilson, they disagree with their colleague that the Respon-
dent met its rebuttal burden to justify the discipline imposed on Wilson.
Although Member Schaumber recites facts which, in his view, support
the Respondent’s claim that Wilson engaged in misconduct as to a
patient, Chairman Battista and Member Liebman note that there are
record facts, properly relied on by the judge, which conflict with that
account. Thus, employee Josephine Belice specifically testified that
patient Feldmeier had periods of memory lapses and was often con-
fused as to whether someone had been in her room. Second, even
assuming the facts relied on by the dissent, Chairman Battista and
Member Liebman find that they are insufficient to rebut the judge’s
findings that the Respondent seized on the incident as a pretext to dis-
charge a 10-year employee without even affording him an opportunity
to explain what had occurred. Finally, the Respondent had the burden
to rebut the General Counsel’s showing that Wilson’s discharge was
unlawfully motivated. That is, it was incumbent upon the Respondent
to show that other employees were treated similarly to Wilson. The
Respondent has not shown that it has discharged employees in the past
based upon a patient complaint, without hearing the employee’s side of
the story. Accordingly, it would be inappropriate to shift the burden to
the General Counsel to affirmatively show disparate treatment in the
disciplinary procedures imposed against Wilson.
With respect to Smith, Chairman Battista and Member Liebman dis-
agree with their colleague’s suggestion that the judge’s finding that the
Respondent unlawfully disciplined Smith is in error to the extent that it
relies on his finding that Beverly failed to give Smith an opportunity to
explain her alleged failure to respond to a patient’s call. It may be that
Smith testified only that she “believed” she had not been asked to ex-
plain, but there is no affirmative evidence that Smith had been given an
opportunity to explain, other than through the comment section on the
disciplinary form that she was provided. However, there is no evidence
that Smith was ever informed that adding a comment on that completed
disciplinary form could have any influence over already imposed disci-
pline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1326
IV. THE 8(A)(5) VIOLATIONS
A. Deduction of Health Insurance Premiums
from Strikers’ Wages
After the April strike, the Respondent deducted from
the strikers’ paychecks the sum that it paid for their
health insurance premiums for the 3 days that the em-
ployees were out on strike. It is undisputed that the Re-
spondent did not notify or bargain with the Union before
it made the deductions.
The General Counsel alleged that the deductions con-
stituted an unlawful unilateral change. The judge found
that the deductions were made pursuant to contractual
provisions and established policy and therefore did not
violate the Act. For the reasons discussed below, we
reverse.27
As set forth in detail by the judge, the Respondent has
an established policy of allowing employees who are on
unpaid leaves of absence to continue their health care
coverage by paying the total cost of their premiums for
the time they are on leave. Under this policy, the choice
of whether to continue health care coverage is left up to
the individual employee. In the case of the striking em-
ployees, however, it was the Respondent’s choice which
determined the continued health care coverage for em-
ployees, not that of the individual employees. Because
the policy leaves the choice to the individual and not the
Respondent, we find that the Respondent’s unilateral
actions in continuing coverage and making the deduc-
tions were not required by the agreed-to policy. Accord-
ingly, we find that the Respondent has violated the Act
by deducting the premiums without first giving notice to
and bargaining with the Union. Cf. Simplex Wire & Ca-
ble Co., 245 NLRB 543 (1970) (no violation found
where employer ceased to pay premiums during strike
but notified employees of their right to convert insurance
to individual coverage).28

27 We agree with the judge that an employer is not generally required
to continue paying health insurance premiums for employees who are
on strike, or in any way finance a strike against itself. See, e.g., Sher-
win-Williams Co., 269 NLRB 678 (1984); Simplex Wire & Cable Co.,
245 NLRB 543 (1979). Here, however, the Respondent did more than
simply cease paying its share of the insurance premiums; rather, the
Respondent paid the premiums and then deducted from employees’
paychecks a pro-rated share of the premiums for the 3 days that they
were on strike. Further, there is no evidence that the deductions repre-
sented any additional expenses related to health insurance that were
incurred by the Respondent as a result of the strike.
28 We find it unnecessary to pass on whether the unilateral deduc-
tions also violated Sec. 8(a)(3), as alleged, because any remedy would
be cumulative and would not substantially affect the remedy provided.
See, e.g., Tri-Tech Services, Inc., 340 NLRB 894, 895–896 (2003);
Sygma Network Corp., 317 NLRB 411 fn. 1 (1995).
B. Refusal to Provide Requested Information
Shortly after the strike, the Union requested informa-
tion concerning all employees who had been hired after
March 15, including strike replacements, at 12 of the
Respondent’s facilities.29 The information requested
included the names, addresses, phone numbers, dates of
hire, job classifications, and wage rates of the employees.
The Respondent failed to provide the information at two
of the facilities; at the other facilities the Respondent
provided incomplete information by refusing to identify
employees by name because of alleged concerns about
possible harassment of strike replacements. The judge
found that the Respondent’s refusal to provide the re-
quested information in its entirety was unlawful. We
agree.
It is well established that the type of information re-
quested by the Union is presumptively relevant for pur-
poses of collective bargaining and must be furnished
upon request. See Stanford Hospital & Clinics, 338
NLRB 1042 (2003), and cases cited therein. The obliga-
tion to furnish information includes providing informa-
tion with regard to permanent strike replacements, unless
there is a clear and present danger that the information
would be misused by the union. See Page Litho, Inc.,
311 NLRB 881, 882 (1993), and cases cited therein,
enfd. granted in part and denied in part mem. 65 F.3d
169 (6th Cir. 1995).
Applying these principles here, we find that the Re-
spondent violated the Act by failing to comply with its
obligation to provide the Union with the requested in-
formation. The Respondent contends that it was justified
in withholding the information because the strike re-
placements were likely to be harassed if the information
was released to the Union. We agree with the judge that
the evidence does not support this contention.
The evidence shows that on about April 19, Regional
Vice President of Operations Wayne Chapman sent to
the administrators of facilities that were in the process of
bargaining with the Union a fax containing general in-
structions as to how they should respond to union re-
quests for various types of information. These instruc-
tions were not specific to any one facility. Rather, all
administrators were instructed to respond to the Union’s
requests for names of employees in precisely the same
manner: by maintaining that there were incidents of har-
assment under investigation. Additionally, as found by
the judge, there is no evidence of harassment of employ-

29 The facilities at which requests were made include the following:
Franklin Care Center, Meadville Care Center, Murray Manor, Beverly
Manor of Monroeville, Clarion Care Center, Fayette Care Center, Mey-
ersdale Manor, Mt. Lebanon Manor, Richland Manor, William Penn
Nursing Center, Beverly Manor of Reading, and Carpenter Care Center.
BEVERLY HEALTH & REHABILITATION SERVICES 1327
ees at nine of the above-mentioned facilities, and only
some general testimony about isolated incidents at the
other three facilities. In context, this evidence is inade-
quate to establish the required showing of a clear and
present danger to justify withholding the information
requested. Accordingly, we affirm the judge’s finding of
an 8(a)(5) and (1) violation.30
The judge also found that the Respondent violated the
Act by refusing to respond to the Union’s September
1996 information requests regarding the current em-
ployee work force unless the Union agreed to pay the
costs of producing the information.31 The Respondent
argues that its refusal was justified because providing the
requested information would have been unduly burden-
some. We find no merit in this argument.
It is the Respondent’s burden to show that the produc-
tion of the information requested by the Union was un-
duly burdensome. Martin Marietta Energy Systems, 316
NLRB 868 (1995); Tower Books, 273 NLRB 671 (1984).
The Respondent has failed to meet that burden. The evi-
dence indicates that the type of information that the Un-
ion requested in September had routinely been supplied
in the past at the Respondent’s expense, and the Respon-
dent has offered no explanation as to why it could not do
so for the September requests. Thus, we find that the
Respondent’s refusal to provide the information was
unlawful.
C. Alleged Unilateral Changes at Richland Manor
At Richland Manor, the Respondent had routinely pro-
vided employee work schedules to the Local Union on a
biweekly basis pursuant to an arrangement between the
Respondent and Local Union Representative Margaret
Pynkala. After April, the Respondent refused to continue
providing the schedules. The Respondent had also rou-
tinely provided seniority lists to the Local Union pursu-
ant to a provision in the collective-bargaining agreement.
When the collective-bargaining agreement expired in
December 1995, the Respondent refused to provide the
information.

30 Chairman Battista does not endorse the view that a clear and pre-
sent danger must be shown. He also notes that he shares the Respon-
dent’s concern about the potential for harassment that could ensue from
employers providing unions with names, addresses, and phone numbers
of strike replacement workers. He joins the majority here, however, in
finding that the Respondent’s failure to provide such information was
unlawful because the Respondent failed to demonstrate that its concern
about potential harassment was genuine or that it was based on any
specific evidence regarding the likelihood of harassment.
31 The requests were made at Clarion Care Center, Franklin Care
Center, Haida Manor, Meadville Care Center, Murray Manor, Richland
Manor, William Penn Nursing Center, Beverly Manor of Lancaster,
Caledonia Manor, Camp Hill Care Center, and Blue Ridge Haven Con-
valescent Center.
The judge found that the Respondent acted unlawfully
by unilaterally terminating its practice of providing the
Local Union with this information. We agree. Both sen-
iority and work schedules are mandatory subjects of bar-
gaining. Thus, the Board has held that a union is entitled
to information regarding seniority (Falcon Wheel Divi-
sion, L.L.C., 340 NLRB 315, 316 (2003)), and work
schedules (Hospital Episcopal San Lucas, 319 NLRB 54,
56–57 (1995)), because that information is essential to
the union’s performance of its duties as the employees’
bargaining representative. Here, the parties had estab-
lished a practice by which the information was provided
to the Local Union on a routine basis, and the Respon-
dent terminated that practice without notice to or consult-
ing with the Local Union. Accordingly, we find that the
Respondent’s unilateral actions violated the Act.
D. Changes in the Weekend Call-Off Policy at
Beverly Manor of Monroeville
In March, the Respondent announced at its Monroe-
ville facility that it was going to enforce a policy that
would require employees who “called off” sick on week-
ends to provide a doctor’s excuse. Although the evi-
dence indicates that the policy had been in existence for
some time before the March announcement, Executive
Director Casimer Wieczorek admitted that, despite the
fact that the policy was in the collective-bargaining
agreement, “prior to [March] we were not requesting
doctors’ excuses for weekend call offs.” The Respon-
dent did not bargain with the Union before the imple-
mentation of this previously dormant policy. In these
circumstances, we agree with the judge that the enforce-
ment of the policy constituted an unlawful unilateral
change in working conditions. See, e.g., Flambeau Air-
mold Corp., 334 NLRB 165, 166 (2001); Rockwood &
Co., 281 NLRB 862, 875 (1986), enfd. 834 F.2d 837 (9th
Cir. 1987).
E. The Alleged Change in Overtime Policy at
Fayette Health Care
In May 1994, the Respondent implemented a policy at
its Fayette facility concerning mandatory overtime.32
The policy provided that mandatory overtime would be
used to cover staffing shortages only in limited circum-
stances, and that employees who refused to work over-
time when requested would be suspended for a first re-
fusal and discharged for a second refusal. No employee
was disciplined under the policy for 2 years until June,
when two employees were suspended after an initial re-
fusal to work overtime.

32 This policy was apparently consistent with provisions regarding
mandatory overtime in the Respondent’s collective-bargaining agree-
ment with the Local Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1328
The judge found that the enforcement of the policy
constituted an unlawful unilateral change in violation of
Section 8(a)(5) and (1). We disagree.
To establish a violation, the General Counsel has the
burden to show that the Respondent’s suspension of the
employees in June was an actual change in terms of em-
ployment. See Fresno Bee, 339 NLRB 1214 (2003). We
find that the General Counsel has not met that burden.
The Respondent contends that it had not been necessary
to discipline any employees under the policy prior to
June because finding employees to work overtime had
not been a problem until that time, and there is no evi-
dence to disprove that contention or otherwise show an
inconsistent or disparate application of the policy. Fur-
ther, unlike the situation at Monroeville, discussed
above, there is no evidence that the policy had previously
been dormant and then resurrected at the Respondent’s
discretion. Under these facts, we agree that the General
Counsel has not met his burden and, accordingly, we
dismiss the allegation.
F. Withdrawal of Recognition at Grandview
Health Care
Sometime in the spring of 1996, an employee at
Grandview Health Care presented a petition to the Re-
spondent expressing a desire on the part of employees to
abolish the Union as their bargaining representative.33
The Respondent conducted a secret-ballot poll among
employees in August, and subsequently withdrew recog-
nition of the Union based on the results of the poll. The
judge found that these actions by the Respondent were
unlawful. We agree.
At the time of the poll and the withdrawal of recogni-
tion, there were a number of unremedied unfair labor
practices at Grandview, as had been found by the Board
in Beverly IV. These unfair labor practices, summarized
below, included violations of Section 8(a)(5), (3), and (1)
of the Act. See 335 NLRB at 654–657, 664–666. In that
case, the Board found that in December 1995, after the
expiration of the collective-bargaining agreement, the
Respondent began denying union representatives access
to the Grandview facility, thus preventing the representa-
tives from meeting with employees for purposes of deal-
ing with their work-related concerns. The Respondent
also removed bulletin boards that were used by the Un-
ion to communicate with employees, or removed union-
related materials from those bulletin boards. Further, in
January and February, the Respondent unilaterally re-
duced or changed the number of work hours of some unit
employees at that location, and also changed its rules
regarding vacation scheduling. In anticipation of the

33 There are few details in the record with regard to the petition.
April strike, the Respondent unilaterally canceled vaca-
tions, personal days, and requests for days off without
pay. The Respondent also discriminated against Grand-
view employees who had been open supporters of the
Union. In January, the Respondent reduced the hours of
an employee who had been selected as the Union’s nego-
tiator. In early March, the Respondent terminated an
employee because of her continuing support for the Un-
ion.
It is well established that an employer may not conduct
a poll to assess employee support for a union where the
employer has engaged in unfair labor practices or has
otherwise created a coercive atmosphere. Struksnes
Construction Co., 165 NLRB 1062, 1063 (1967); see
also Storer Communications, Inc., 297 NLRB 296, 299
(1989). Given the nature of the outstanding unfair labor
practices at the time the poll was conducted, we find that
the Respondent’s actions created a coercive atmosphere
in which the Union was likely to lose support among
employees. Thus, we find that the poll was unlawful.
Accordingly, we find that the Respondent’s withdrawal
of recognition from the Union, based upon the results of
the poll, was also unlawful. See, e.g., Hojoca Corp., 291
NLRB 104, 106 (1988), enfd. 872 F.2d 1169 (3d Cir.
1989).
We also find that the Respondent, having created the
circumstances under which the Union was likely to lose
support, was precluded from withdrawing recognition
from the Union based on the loss of that support. It is
established law that “an employer may not withdraw
recognition from a union while there are unremedied
unfair labor practices tending to cause employees to be-
come disaffected from the union.” Broadway Volks-
wagen, 342 NLRB 1244, 1247 (2004) (citations omitted).
In determining whether a causal relationship between the
unremedied unfair labor practices and the loss of union
support, the Board considers the following factors: (1)
the length of time between the unfair labor practices and
the withdrawal of recognition; (2) the nature of the viola-
tions, including the possibility of a detrimental or lasting
effect on employees; (3) the tendency of the violation to
cause employees disaffection; and (4) the effect of the
unlawful conduct on employees’ morale, organizational
activities, and membership in the union. Master Slack
Corp., 271 NLRB 78, 84 (1984).
Applying these factors here, we conclude that the Re-
spondent’s violations of the Act at Grandview would
likely cause the Union to lose support among employees.
We find that these unfair labor practices, discussed
above, would tend to have a chilling effect on the exer-
cise of Section 7 rights by employees, although they oc-
curred approximately 6–8 months prior to the poll and
BEVERLY HEALTH & REHABILITATION SERVICES 1329
the withdrawal of recognition.34 In particular, the Re-
spondent’s discharge of an active union supporter was
“exceptionally coercive and not likely to be forgotten,”
and would likely “reinforce[] the employees’ fear that
they will lose employment if they persist in union activ-
ity.” Penn Tank Lines, Inc., 336 NLRB 1066, 1067–
1068 (2001). Further, by unilaterally changing working
hours and vacation policy, the Respondent undermined
the Union’s position as the collective-bargaining repre-
sentative and conveyed a message to employees that it
can set important terms and conditions of employment
without the Union’s input. See Kurdziel Iron of Wau-
seon, Inc., 327 NLRB 155, 155–156 (1998).
It is apparent that any evidence proffered by the Re-
spondent that the Union had lost support among employ-
ees was causally related to the unfair labor practices dis-
cussed above. We therefore affirm the judge’s finding
that the Respondent’s withdrawal of recognition of the
Union at Grandview violated the Act.35
G. Withdrawal of Recognition at Mt. Lebanon Manor
Similarly, we find that the judge properly concluded
that the Respondent’s withdrawal of recognition of the
Union as the bargaining representative of employees at
Mt. Lebanon Manor violated the Act. The Respondent
withdrew recognition of the Union in November after
receiving a petition purportedly signed by a majority of
unit employees indicating that they no longer wished to
be represented by the Union. As with the Grandview
facility, there were a number of unremedied unfair labor
practices at Mt. Lebanon at the time recognition was
withdrawn. These included unilateral changes regarding
access of union representatives and reduction of working
hours as set forth above. Additionally, at Mt. Lebanon
the Respondent unilaterally changed the badge/timekeep-
ing system at the facility, and refused to bargain with the
Union over the implementation of an incontinence pro-
gram. See Beverly IV¸ 335 NLRB at 654–656.
As discussed above, these unilateral actions by the Re-
spondent were likely to result in loss of union support
among employees. Therefore, we find that the Respon-
dent was precluded from withdrawing recognition from
the Union, and its actions violated the Act as alleged.

34 We observe that the unfair labor practices were committed closer
to the time when the employees first expressed their desire to rid them-
selves of union representation in the spring of 1996.
35 We also affirm the judge’s finding the Respondent violated the
Act by refusing to process grievances and to continue COPE deductions
after it withdrew recognition from the Union.
H. Change in the Timekeeping System at Beverly
Manor of Lancaster
In December 1995, the Respondent implemented a
new timekeeping system at its Lancaster facility under
which employees were required to swipe their name
badges through a machine to record arrival and departure
times. Employees who forgot their badges were sent
home to get them and were not paid for the missed work-
time. Prior to December, the Respondent utilized a
punchcard system of timekeeping. The Respondent did
not give notice to or bargain with the Union over the
change.
The judge found that the implementation of the new
timekeeping system was not a material or substantial
change in working conditions, and that the Respondent’s
unilateral implementation of the system was not unlaw-
ful. We disagree. In Beverly IV, the Board found that
the implementation of this same system at Mt. Lebanon
was a material change that affected terms and conditions
of employment. See 335 NLRB at 656–657. Because
there is no basis on which to distinguish the situation
here from that at Mt. Lebanon, we find that the Respon-
dent’s unilateral implementation of the system violated
the Act.36
V. ALLEGATIONS NOT RULED ON BY THE JUDGE
The General Counsel has excepted to the judge’s fail-
ure to make specific findings as to some of the complaint
allegations, findings that would follow logically from the
facts and the violations he did find. Because the issues
were alleged and fully litigated, and the violations are

36 Neither Chairman Battista nor Member Schaumber participated in
Beverly IV. For institutional reasons, they accept that as the law to be
applied herein.
Member Schaumber would reverse the judge’s finding that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act at the William Penn
facility by allegedly terminating the established practice of holding
meetings at the second step of the grievance procedure. The judge
referred to no witness testimony on this point; his decision contains
nothing more than an unsupported conclusory statement of fact. The
only record evidence which arguably addresses the issue is that of Ruth
Ann Pilarski. Pilarski first said that, after the contract expired, the Re-
spondent simply returned grievances “denied” and never held grievance
meetings. She did not say that the Respondent only departed from
resolving grievances at the “earlier steps of the grievance procedure.”
She later said, however, that a third step grievance meeting was in fact
held on at least two occasions. In light of this inconsistency and without
knowing that the judge relied on Pilarski’s testimony to find a violation
in any event, Member Schaumber would not find it proven that the
Respondent eliminated second step meetings.
Chairman Battista and Member Liebman find that Pilarski’s testi-
mony that the Respondent had departed from its prior policy of infor-
mally resolving grievances at the earlier steps of the grievance proce-
dure, including at step two, adequately supports the judge’s conclusion
that the Respondent unilaterally changed the practice of meeting at the
second step of the grievance process.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1330
directly associated with violations found by the judge,
we grant the General Counsel’s exceptions and find the
following additional violations:
(a) The Respondent violated Section 8(a)(1) by an-
nouncing and conducting the poll at Grandview Health
Care.37
(b) The Respondent violated Section 8(a)(3) and (1) by
suspending employees John Wilson and Charles Wil-
liams, and by reprimanding and suspending Cheryl
Danner, discipline which preceded their unlawful dis-
charges.
(c) The Respondent violated Section 8(a)(5) and (1) by
refusing to bargain over the disciplinary policy for em-
ployees who refused to work overtime at Fayette Health
Care.38
(d) The Respondent violated Section 8(a)(1) by telling
employees at Murray Manor that they made the wrong
choice by participating in the April strike.
VI. REMEDIAL ISSUES
A. Corporatewide Order
We agree with the judge that a corporatewide cease-
and-desist order and notice posting is appropriate. This
is the fifth in a series of cases involving the Respondent
in which there is evidence that corporate officials played
prominent roles in directing, approving, or knowingly
failing to prevent the unlawful actions that occurred at

37 Because there is no dispute that the Respondent initiated the poll,
we find it unnecessary to pass on the General Counsel’s exception
regarding the judge’s failure to find that Barbara Crudo, who conducted
the poll, was an agent of the Respondent within the meaning of Sec.
2(13).
38 Member Schaumber dissents on this issue. The General Counsel
claims that the Union sent a request to bargain on this issue on June 5,
1996, which the Respondent refused. There is in the record, however, a
June 11, 2006 letter from the Respondent’s administrator, Jim Filli-
pone, in response to the Union’s June 5 letter, which states, “I am will-
ing to bargain the mandatory overtime issue in conjunction with all
other local contract issues as soon as possible. Please advise me of
possible dates.” Fillipone testified the Union never contacted him to
provide any dates. While Fillipone also testified that he had been told
by a regional official of the Respondent that he did not have to bargain
on these issues because they were contractual, Fillipone did not testify
that he followed that advice and the Respondent’s June 11 letter ap-
pears to indicate the opposite. In any event, the state of the record does
not establish that the General Counsel proved this allegation by a pre-
ponderance of the evidence.
Chairman Battista and Member Liebman agree that the General
Counsel failed to establish that the Respondent unilaterally changed its
overtime policy when it disciplined two employees for refusing to work
overtime at the Fayette Health Care facility, as discussed in sec. IV,E,
above, but they find that the Respondent violated Sec. 8(a)(5) by ex-
pressly refusing the Union’s 1996 request to bargain concerning over-
time, which was made at a time when there was no contract in effect.
The Respondent’s suggestion that discussions on the immediate request
to bargain about mandatory overtime be deferred for overall contract
negotiations fails to address the Union’s request for bargaining as to
matters involving pending grievance issues.
individual facilities.39 Specifically, the evidence here
shows involvement of corporate officials in responding
to the Union’s information requests, in conducting an
unlawful poll and withdrawing recognition from the Un-
ion at individual facilities, in handling employee griev-
ances, and in implementing the policy of deducting
health insurance premiums from former strikers.40
The repetition of this now-familiar pattern of unlawful
actions on the part of corporate officials warrants a find-
ing that the Respondent continues to have a proclivity to
violate the Act, and that its widespread misconduct dem-
onstrates a general disregard for its employees’ Section 7
rights.41 We find, therefore, that absent a corporatewide
remedy, the Respondent remains likely to commit such
unlawful actions at its other facilities against other em-
ployees. Accordingly, we will issue a single, corporate-
wide remedial order addressing all of the violations
found.42 We will also require the posting of two versions
of the notice to employees—one to be posted at each
Pennsylvania facility involved in this proceeding and at
those of the Respondent’s separate offices that oversee
those facilities, and one to be posted at each of the Re-
spondent’s other facilities and offices nationwide, as ex-
plained in Beverly IV, 335 NLRB at 642–643.43
B. The General Counsel’s Request for
Extraordinary Remedies
In addition to the remedies provided in the judge’s
recommended Order, the General Counsel requests spe-
cial access for the Union to post notices and to address
the employees at the Respondent’s facilities in connec-
tion with organizing campaigns and representation elec-

39 See Beverly Health & Rehabilitation Services (Beverly IV), 335
NLRB 635 (2001), enfd. in part 317 F.3d 316 (D.C. Cir. 2003); Beverly
California Corp. (Beverly III), 326 NLRB 232 (1998), enfd. in part and
remanded 227 F.3d 817 (7th Cir. 2000); Beverly California Corp. (Bev-
erly II), 326 NLRB 153 (1998); enfd. 227 F.3d 817 (7th Cir. 2000);
Beverly Enterprises (Beverly I), 310 NLRB 222 (1993), enf. denied in
part sub nom. Torrington Extend-A-Care Employees Assn. v. NLRB, 17
F.3d 580 (2d Cir. 1994).
40 Corporate officials involved in unfair labor practices here include
the vice president for labor and employment, the vice president of
operations for central and eastern Pennsylvania, and the labor relations
manager.
41 The Respondent contends that its corporate-level efforts to ensure
compliance with the Act have steadily reduced the number of unfair
labor practices it has been found to have committed over time. How-
ever, the figures the Respondent cites to support this contention do not
include the unfair labor practices found in either Beverly IV or this
proceeding.
42 Both the District of Columbia and the Seventh Circuits have en-
forced corporatewide remedies against the Respondent in Beverly III
and IV. See supra, fn. 30.
43 The U.S. Court of Appeals for the Seventh Circuit has affirmed
this type of remedy. See Beverly California Corp. v NLRB, 227 F.3d at
846–847.
BEVERLY HEALTH & REHABILITATION SERVICES 1331
tions for a period of 2 years. Because this case involves
no organizing campaigns or representation proceedings,
we find that such extraordinary remedies are not appro-
priate.
The General Counsel also requests that the Respondent
be required to reimburse the Agency for litigation ex-
penses incurred in establishing that the Respondent is a
single employer, asserting that the Respondent’s position
to the contrary has been previously rejected by the Board
in Beverly III and is patently meritless on its face. The
Board denied a similar request by the General Counsel in
Beverly IV, but at the same time noted that the Respon-
dent’s single-employer status had been exhaustively liti-
gated in three prior Board proceedings and warned that,
absent significant changed circumstances, further litiga-
tion of this issue in future cases would not be war-
ranted.44 Because Beverly IV had not issued at the time
this case was litigated, the Respondent was not yet on
notice of the Board’s decision. Thus, we find that an
award of litigation costs is not appropriate here, and deny
the General Counsel’s request.
ORDER
The Respondent, Beverly Health and Rehabilitation
Services, Inc., Ft. Smith, Arkansas, its Operating Divi-
sions, Regions, Groups, wholly owned subsidiaries, and
individual nursing homes, and each of them, and its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening applicants that they will not be hired
unless they agree in advance to cross a picket line in the
event of a strike.
(b) Threatening employees with a reduction of hours
or job loss for participating in a strike.
(c) Informing employees that they will not be given
full-time hours because of their participation in a strike.
(d) Informing employees that certain rules of conduct
apply only to former strikers.
(e) Informing employees that union members will not
be permitted inside its facilities during their off-duty
hours, and denying such access to off-duty union mem-
bers.
(f) Engaging in unlawful surveillance, including video-
taping, of employees who are engaged in protected activ-
ity.
(g) Instructing employees to remove prounion insignia
from their clothing.

44 The Respondent did not challenge the Board’s finding regarding
its single-employer status on appeal in Beverly III. Nevertheless, the
circuit court agreed with the Board’s finding that the evidence estab-
lishing the Respondent’s single-employer status was overwhelming.
See Beverly California Corp. v. NLRB, 277 F.3d at 828.
(h) Disciplining and discharging employees for engag-
ing in protected, concerted activities.
(i) Refusing to accommodate the scheduling and
workplace needs of employees who engage in protected
activities.
(j) Unilaterally implementing changes in employees’
terms and conditions of employment, and refusing to
bargain over such changes.
(k) Refusing to recognize and bargain with Service
Employees International Union, Local 585, CLC as the
exclusive collective-bargaining representative of the ser-
vice and maintenance employees working at Grandview
Health Care.
(l) Refusing to make COPE deductions and remit-
tances, and refusing to accept and process grievances at
Grandview Health Care.
(m) Refusing to recognize and bargain with District
1199P, Service Employees International Union, CLC as
the exclusive collective-bargaining representative of the
licensed practical nurses working at the Mt. Lebanon
facility.
(n) Polling employees for purposes of determining un-
ion support where there are unremedied unfair labor
practices.
(o) Refusing to provide the Union, upon request, with
information relevant and necessary for the proper per-
formance of its duties as the collective-bargaining repre-
sentative of employees.
(p) Refusing to adequately respond to information re-
quests by the Union.
(q) Withdrawing recognition from the Union after
committing unfair labor practices that are likely to cause
loss of union support among employees.
(r) Refusing to hold grievance meetings at the second
step of the procedure.
(s) Reducing the hours of employees who engage in
concerted activities.
(t) Failing to pay employees for time lost due to inves-
tigatory suspensions because of their protected activities.
(u) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
full reinstatement to their former jobs to John Wilson at
Beverly Manor of Monroeville; Margaret Moore at
Haida Manor; Joyce Kircher at Meadville Care Center;
Rose Girdany at Mt. Lebanon Manor; Michelle Weaver
and Ruth Ann Pilarski at William Penn Nursing Center;
Charles Williams at Beverly Manor of Lancaster; and
Cheryl Danner at Camp Hill Care Center or, if those jobs
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1332
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights of
privileges previously enjoyed.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the Respondent’s unlawful
discharges of the above-named employees, and within 3
days thereafter notify the affected employees in writing
that this has been done and that the unlawful action will
not be used against them in any way.
(c) Make John Wilson, Margaret Moore, Joyce
Kircher, Rose Girdany, Michelle Weaver, Ruth Ann Pi-
larski, Charles Williams, and Cheryl Danner whole for
any loss of earnings and other benefits suffered as a re-
sult of the Respondent’s discrimination against them, to
be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline
issued to Josie Belice and John Wilson at Beverly Manor
of Monroeville; Charles Williams at Beverly Manor of
Lancaster; Cheryl Danner at Camp Hill Care Center;
Leatha Smith at Meadville Care Center; Amiee Miller
and Sheila Oakes at Meyersdale Manor; Jeri Tagg at
Murray Manor; Ann Marie Daubert, Tina Brown, Shan-
non Flickinger, Antoinette Bainbridge, Samantha Yohe,
and Susan Spiess at York Terrace Nursing Center and,
within 3 days thereafter notify each of these employees
in writing that this has been done, and that the unlawful
action will not be used against him or her in any way.
(e) Make Amiee Miller, Sheila Oakes, Ann Marie
Daubert, Tina Brown, Shannon Flickinger, Antoinette
Bainbridge, Samantha Yohe, and Susan Spiess whole for
any loss of earnings and other benefits suffered as a re-
sult of their unlawful suspensions, in the manner pre-
scribed in F. W. Woolworth Co. and New Horizons for
the Retarded, supra.
(f) Make Rickie Piper at Franklin Care Center whole
for any loss of earnings and other benefits resulting from
an unlawful reduction of her work hours because of her
union activities, in the manner prescribed in F. W. Wool-
worth Co. and New Horizons for the Retarded, supra.
(g) Upon request, recognize and bargain with Service
Employees International Union, Local 585, CLC as the
exclusive collective-bargaining representative of all
Grandview Health Care employees in the appropriate
unit, with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and if an under-
standing is reached, embody the understanding in a
signed agreement. The unit is:
All full-time and regular part-time service and mainte-
nance employees including nursing assistants, house-
keepers, dietary aides, cooks, laundry aides, unit clerks
and floor maintenance and activity aides employed at
Grandview, excluding all other employees, including
casual and temporary employees, guards and supervi-
sors as defined in the Act.
(h) Upon request, recognize and bargain with District
1199P, Service Employees International Union, CLC as
the exclusive collective-bargaining representative of all
Mt. Lebanon Manor licensed practical nurses, with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment, and if an understanding is
reached, embody the understanding in a signed agree-
ment. The unit is:
All full-time and regular part-time licensed practical
nursed employed at Mt. Lebanon, excluding service
and maintenance employees, charge nurses, business
office clerical employees, guards, professional employ-
ees and supervisors as defined in the Act and as certi-
fied by the Board in Case 6–RC–10079.
(i) On the Union’s request, provide any information
that is relevant and necessary to the Union’s statutory
duties and responsibilities as the collective-bargaining
representative of the Respondent’s employees.
(j) On the Union’s request, rescind all unilateral ac-
tions found to have been unlawfully taken here and make
employees adversely affected by such actions whole for
any loss of earnings and other benefits suffered as a re-
sult of such changes.
(k) Provide the Union and its appropriate Local Un-
ions, as the exclusive representative of the Respondent’s
unit employees, with notice and an opportunity to bar-
gain with respect to any prospective changes in rates of
pay, wages, hours, and other terms and conditions of
employment.
(l) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide a reasonable place designated
by the Board or its agents, all payroll records, social se-
curity payment records, timecards, personnel records and
reports, and all other records, including an electronic
copy of such records, if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(m) Within 14 days after service by the Region, post at
each of the individual nursing homes in Pennsylvania
involved in this proceeding and the Respondent’s associ-
ated offices overseeing these Pennsylvania facilities cop-
BEVERLY HEALTH & REHABILITATION SERVICES 1333
ies of the attached notice marked “Appendix A.”45 These
individual facilities include the following: Beverly
Manor of Monroeville, Clarion Care Center, Fayette
Health Care (Uniontown), Franklin Care Center
(Waynesburg), Grandview Health Care (Oil City), Haida
Manor (Hastings), Meadville Care Center, Meyersdale
Manor, Mt. Lebanon Manor, Murray Manor (Murrays-
ville), Richland Manor (Johnstown), William Penn Nurs-
ing Center (Lewistown), Beverly Manor of Reading,
Beverly Manor of Lancaster, Blue Ridge Haven Conva-
lescent Center (Camp Hill), Caledonia Manor (Fayetts-
ville), Camp Hill Care Center, Carpenter Care Center
(Tunkhannock), and York Terrace Nursing Center
(Pottsville). The appropriate copies of each notice, on
forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed any facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at such facility at any time since No-
vember 1995.
(n) Within 14 days after service by the Region, post at
each of its other nursing homes and corporate offices
copies of the attached notice marked “Appendix B.”46
The appropriate copies of each 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 and maintained for 60 con-
secutive 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 altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed any facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-

45 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.”
46 See fn. 45, supra.
ployees and former employees employed by the Respon-
dent at such facility at any time since November 1995.
(o) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint is dismissed insofar as it alleges violations of the
Act not specifically found.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
This notice has been posted as a result of a long series of
cases brought by various unions and individuals against
Beverly before the National Labor Relations Board. In
these cases, the NLRB, based on Beverly’s recurring viola-
tions of the National Labor Relations Act, issued an order
requiring Beverly to cease and desist from committing such
unlawful conduct, not only at the nursing homes that were
involved in the proceedings, but also at all other Beverly
nursing homes and offices. The NLRB’s Order also re-
quires Beverly to provide backpay, reinstatement, and other
relief to all employees who were adversely affected, and to
post and abide by a notice of these requirements at all Bev-
erly nursing homes nationwide.
Specifically, the NLRB has found that we violated the em-
ployee rights described below at a number of nursing homes
in Pennsylvania, and that we have done so repeatedly at
numerous other nursing homes.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten job applicants that they will not
be hired unless they agree in advance to cross a picket
line in the event of a strike.
WE WILL NOT threaten you with discharge if you par-
ticipate in a strike.
WE WILL NOT inform you that certain rules of conduct
apply only to former strikers, or that former strikers will
not be given full-time hours.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1334
WE WILL NOT inform you that union members will not
be allowed access to our facilities during off-duty hours,
or deny access to off-duty union members.
WE WILL NOT engage in unlawful surveillance of your
union or protected concerted activities, including video-
taping.
WE WILL NOT direct you to remove prounion insignia
from your clothing.
WE WILL NOT refuse to accommodate the scheduling
and workplace needs of those employees who support the
Union or engage in protected activity.
WE WILL NOT reduce your work hours, or discipline or
discharge you for engaging in protected, concerted ac-
tivities.
WE WILL NOT change the terms and conditions of em-
ployment without providing the Union with an opportu-
nity to bargain about the proposed changes.
WE WILL NOT refuse to recognize and bargain with Lo-
cal 585 as the exclusive collective-bargaining representa-
tive of the service and maintenance employees working
at Grandview Health Care.
WE WILL NOT refuse to make COPE deductions and
remittances, or refuse to accept and process grievances.
WE WILL NOT poll employees for purposes of deter-
mining union support at facilities where there are unre-
medied unfair labor practices.
WE WILL NOT refuse to recognize and bargain with
District 1199P, Service Employees International Union,
CLC as the exclusive collective-bargaining representa-
tive of the licensed practical nurses at Mt. Lebanon
Manor.
WE WILL NOT refuse to provide the Union with infor-
mation that is relevant and necessary for the proper per-
formance of its duties as the collective-bargaining repre-
sentative of employees, when the Union requests such
information.
WE WILL NOT refuse to adequately respond to informa-
tion requests by the Union.
WE WILL NOT withdraw recognition from the Union af-
ter committing unfair labor practices that are likely to
cause the Union to lose support.
WE WILL NOT refuse to hold grievance meetings at the
second step of the procedure.
WE WILL NOT refuse to pay employees for time lost
due to investigatory suspensions because of their pro-
tected activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer full reinstatement to their former jobs to
John Wilson at Beverly Manor of Monroeville; Margaret
Moore at Haida Manor; Joyce Kircher at Meadville Care
Center; Rose Girdany at Mt. Lebanon Manor; Michelle
Weaver and Ruth Ann Pilarski at William Penn Nursing
Center; Charles Williams at Beverly Manor of Lancaster;
and Cheryl Danner at Camp Hill Care Center or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights of
privileges previously enjoyed.
WE WILL make John Wilson, Margaret Moore, Joyce
Kircher, Rose Girdany, Michelle Weaver, Ruth Ann Pi-
larski, Charles Williams, and Cheryl Danner whole for
any loss of earnings and other benefits resulting from
their discharges, less any net interim expense, plus inter-
est.
WE WILL make Amiee Miller and Sheila Oakes at
Meyersdale Manor; and Ann Marie Daubert, Tina
Brown, Shannon Flickinger, Antoinette Bainbridge,
Samantha Yohe, and Susan Spiess at York Terrace;
whole for any loss of earnings and other benefits result-
ing from their unlawful suspensions, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of John Wilson, Margaret Moore, Joyce
Kircher, Rose Girdany, Michelle Weaver, Ruth Ann Pi-
larski, Charles Williams, and Cheryl Danner; and the
unlawful suspensions of Amiee Miller, Sheila Oakes,
Ann Marie Daubert, Tina Brown, Shannon Flickinger,
Antoinette Bainbridge, Samantha Yohe, Susan Spiess,
and Rickie Piper and, WE WILL, within 3 days thereafter,
notify each of these employees in writing that this has
been done and that the unlawful action will not be used
against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline issued to Josie Belice at Beverly Manor of
Monroeville; Leatha Smith at Meadville Care Center;
Jeri Tagg at Murray Manor and, WE WILL, within 3 days
thereafter, notify each of these employees in writing that
this has been done and that the unlawful action will not
be used against them in any way
WE WILL make Rickie Piper at Franklin Care Center
whole for any loss of earnings and other benefits result-
ing from an unlawful reduction of her work hours be-
cause of her union activities, less any net interim earn-
ings, plus interest.
WE WILL, on request, recognize and bargain with Dis-
trict 1199P, Service Employees International Union, as
the exclusive collective-bargaining representative of em-
ployees at Mt. Lebanon Manor, and with Local 585 as
the exclusive collective-bargaining representative of em-
ployees at the Grandview facility, in the appropriate
BEVERLY HEALTH & REHABILITATION SERVICES 1335
units, described below, with respect to rates of pay,
wages, hours, and other terms and conditions of em-
ployment, and if understandings are reached, embody
those understanding in a signed agreement.
All full-time and regular part-time service and mainte-
nance employees including nursing assistants, house-
keepers, dietary aides, cooks, laundry aides, unit clerks
and floor maintenance and activity aides employed at
Grandview, excluding all other employees, including
casual and temporary employees, guards and supervi-
sors as defined in the Act.
All full-time and regular part-time licensed practical
nurses employed at Mt. Lebanon, excluding service
and maintenance employees, charge nurses, business
office clerical employees, guards, professional employ-
ees and supervisors as defined in the Act and as certi-
fied by the Board in Case 6–RC–10079.
WE WILL, on request, provide any information to the
Union that is relevant and necessary to its statutory du-
ties and responsibilities as the collective-bargaining rep-
resentative of our employees.
WE WILL, on request, rescind all unilateral actions
found to have been unlawfully taken and make any em-
ployees adversely affected by such actions whole for any
loss of earnings and other benefits suffered as a result of
such changes.
WE WILL provide the Union and its appropriate Local
Unions notice and an opportunity to bargain over any
prospective changes in hours, wages, and other terms and
conditions of employment.
BEVERLY HEALTH AND REHABILITATION SERVICES,
INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
This Notice has been posted as a result of a long series of
cases brought by various Unions and individuals against
Beverly before the National Labor Relations Board. In
these cases, the NLRB, based on Beverly’s recurring viola-
tions of the National Labor Relations Act, issued an order
requiring Beverly to cease and desist from committing such
unlawful conduct, not only at the nursing homes that were
involved in the proceedings, but also at all other Beverly
nursing homes and offices. The NLRB’s Order also re-
quires Beverly to provide backpay, reinstatement, and other
relief to all employees who were adversely affected, and to
post and abide by a notice of these requirements at all Bev-
erly nursing homes nationwide.
Specifically, the NLRB has found that we violated the em-
ployee rights described below at a number of nursing homes
in Pennsylvania, and that we have done so repeatedly at
numerous other nursing homes.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten job applicants that they will not
be hired unless they agree in advance to cross a picket
line in the event of a strike.
WE WILL NOT threaten you with discharge if you par-
ticipate in a strike.
WE WILL NOT, inform you that certain rules of conduct
apply only to former strikers, or that former strikers will
not be given full-time hours.
WE WILL NOT, if you are represented by a union, in-
form you that you will not be allowed access to our fa-
cilities during off-duty hours, or deny you access to fa-
cilities.
WE WILL NOT engage in unlawful surveillance of your
union or protected concerted activities, including video-
taping.
WE WILL NOT direct you to remove prounion insignia
from your clothing.
WE WILL NOT refuse to accommodate the scheduling
and workplace needs of those employees who support the
Union or engage in protected activity.
WE WILL NOT reduce your work hours, or discipline or
discharge you for engaging in protected, concerted ac-
tivities.
WE WILL NOT, if you are represented by a union,
change the terms and conditions of employment without
providing the Union with an opportunity to bargain about
the proposed changes.
WE WILL NOT, if you are represented by a union, refuse
to recognize and bargain with the Union as the exclusive
bargaining representative of employees, or refuse to
make COPE deductions and remittances.
WE WILL NOT, if you are represented by a union, refuse
to accept and process grievances according to the agreed-
upon procedures.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1336
WE WILL NOT poll employees for purposes of deter-
mining union support at facilities where there are unre-
medied unfair labor practices.
WE WILL NOT, if you are represented by a union, refuse
to provide the Union with information that is relevant
and necessary for the proper performance of its duties as
the collective-bargaining representative of employees,
when the Union requests such information.
WE WILL NOT, if you are represented by a union, refuse
to adequately respond to information requests by the Un-
ion.
WE WILL NOT, if you are represented by a union, with-
draw recognition from the Union after committing unfair
labor practices that are likely to cause the Union to lose
support.
WE WILL NOT refuse to pay employees for time lost
due to investigatory suspensions because of their pro-
tected activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind all the discriminatory discharges, suspen-
sions, and other actions we took against employees for
their union activity; WE WILL rescind all the unilateral
changes in terms of employment and working conditions
we made without giving the Union notice and opportu-
nity to bargain; WE WILL, within 14 days from the date of
the Board’s order, offer each of the employees who were
affected by this discrimination or by these unilateral
changes full reinstatement to their former jobs or their
former terms of employment, without prejudice to their
seniority of other rights or privileges previously enjoyed.
WE WILL make each of these employees whole, with
interest, for any loss of earnings and other benefits result-
ing from our unlawful actions.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
criminatory discharges, suspensions, or other actions
affecting these employees; WE WILL, on request, recog-
nize and bargain with the Union as the collective-
bargaining representative of employees; WE WILL, on
request, provide any information to the Union that is
relevant and necessary to its statutory duties and respon-
sibilities as the collective-bargaining representative of
our employees; WE WILL, provide the Union an opportu-
nity to bargain over any prospective changes in hours,
wages, and other terms and conditions of employment.
BEVERLY HEALTH AND REHABILITATION SERVICES,
INC.
Julie R. Stern, Esq., for the General Counsel.
Hugh Reilly, Esq., of Fort Smith, Arizona, Bruce D. Bagley,
Esq., of Harrisburg, Pennsylvania, and Martin J. Saunders,
Esq. and Steven I. Farbman, Esq., of Pittsburgh, Pennsyl-
vania, for the Respondents.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon
charges filed on April 11, 1996, and numerous additional and
amended charges filed thereafter, by District 1199P, Service
Employees International Union, AFL–CIO, CLC, Service Em-
ployees International Union, Local 585, AFL–CIO, CLC, and
Pennsylvania Social Services Union Local 668 a/w Service
Employees International Union, AFL–CIO (District 1199P,
Local 585 and Local 668), respectively, and, collectively, as the
Unions, and by Mary Myers and Jeri L. Tagg, individuals,
against Beverly Health and Rehabilitation Services Inc., its
operating regional offices, wholly-owned subsidiaries and indi-
vidual facilities and each of them and/or its wholly-owned sub-
sidiary Beverly Enterprises–Pennsylvania, Inc., and its individ-
ual facilities and each of them (the Respondents), the General
Counsel of the National Labor Relations Board (the Board), by
the Regional Director for Region 6, issued an order consolidat-
ing cases and consolidated complaint dated March 4, 1997, as
thereafter amended and further consolidated with additional
cases, alleging violations by the Respondents of Section
8(a)(5), (3), and (1) and Section 2(6) and (7) of the National
Labor Relations Act (the Act) at 19 of their Pennsylvania facili-
ties. The Respondents, by their answers, denied the commis-
sion of any unfair labor practices.
Pursuant to notice, trial was held before me in Franklin, Har-
risburg, Johnstown, Reading, and Pittsburgh, Pennsylvania, on
various dates between July 28, 1997, and October 22, 1998, at
which the General Counsel and the Respondents were repre-
sented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence. Thereafter, the parties filed briefs which have
been duly considered.
Upon the entire record1 in these cases, and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Beverly Health and Rehabilitation Services, Inc. (BHRI) and
its wholly-owned subsidiary Beverly Enterprises–Pennsylvania,
Inc. (BE–P), are part of a corporate group which operates some
950 nursing homes throughout the United States. The Respon-
dents run homes in Pennsylvania, including those at issue here,
and derive gross revenues therefrom in excess of $500,000.
During the 12-month period ending September 30, 1995, a
representative timeframe, the Respondents purchased and re-
ceived at each of their Pennsylvania facilities involved herein,
products, goods, and materials valued in excess of $5000,
which were sent directly from points located outside the Com-

1 The General Counsel’s unopposed motion to correct the transcript
of proceedings is granted.
BEVERLY HEALTH & REHABILITATION SERVICES 1337
monwealth of Pennsylvania. I find that the Respondents are
employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Unions are, each, labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
The instant matter is the fifth in a series of cases concerning
the various Beverly nursing homes across the country, which
has resulted, thus far, in a United States Court of Appeals deci-
sion, three Board decisions and an administrative law judge’s
decision over the past 10 years2 in which truly massive viola-
tions of Section 8(a)(5), (3), and (1) of the Act were found.
The cases here concern, essentially, events following the No-
vember 30, 1995 expiration of collective-bargaining agree-
ments at 18 of the Respondents’ 20 organized facilities in
Pennsylvania,3 covering units of service and maintenance em-
ployees, including certified nursing assistants (CNAs) and, in
some cases, units of licensed practical nurses (LPNs), and an
ensuing strike from April 1 to April 4, 1996, at 15 facilities.4
The principal issues in these cases are whether the Respondents
took retaliatory actions, including discharges, against employ-
ees because they participated in the strike or otherwise sup-
ported the Unions; refused to provide information properly
requested by the Unions; made unilateral changes in the terms
and conditions of employment of their bargaining unit employ-

2 See Beverly Enterprises, 310 NLRB 222 (1993), enfd. in relevant
part sub nom. Torrington Extend-A-Care Employee Assn. v. NLRB, 17
F.3d. 580 (2d. Cir. 1994) (Beverly I); Beverly Enterprises, 326 NLRB
153 (1998) (Beverly II); Beverly Enterprises, 326 NLRB 232 (1998)
(Beverly III); Beverly Health & Rehabilitation Services, Inc., et al., JD–
204–97 (1997) (Beverly IV).
3 At the Grandview and Lancaster facilities, the labor contracts ex-
pired on December 31, 1994.
4 The Respondents urge that prosecution of these cases is barred by
the Board’s rulings in Jefferson Chemical Co., 200 NLRB 992 (1972),
and Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978), as Cases
6–CA–27873, et al., the Beverly IV cases, involved the same nursing
home facilities, and the principal unfair labor practice allegations in the
two sets of cases arose from the same 3-day strike. Particularly since
the Beverly IV litigation was ongoing at the time the initial complaint in
this, the Beverly V matter, issued, it is the Respondents’ view that, by
separately litigating these cases, the General Counsel has engaged in
“impermissible piecemeal litigation.” I disagree. By instituting the
Beverly V cases, the General Counsel has not sought to relitigate any
matters whatsoever which were previously litigated under the same or a
different provision of the Act. Moreover, counsel for the General
Counsel, as argued in its brief, “made a good faith effort to consolidate”
the Beverly IV and Beverly V cases by moving before Administrative
Law Judge Robert T. Wallace, who heard and decided the Beverly IV
cases, that Cases 6–CA–28276, et al. be joined with those cases. As
Judge Wallace denied the motion, the General Counsel was then re-
quired separately to litigate the two groups of cases. The decision to so
proceed in these circumstances can hardly be viewed as an “arbitrary
abuse of discretion,” especially since the Board does not apply “a blan-
ket rule in favor of consolidation.” See Unbelievable, Inc., 324 NLRB
1225 (1997).
ees and unlawfully withdrew recognition of the bargaining
representative of the employees in two units at two of their
facilities.
B. Facts5 and Conclusions
1. The alleged violations of Section 8(a)(1) of the Act
Following the strike, found by Judge Wallace in the Beverly
IV cases to have been an unfair labor practice strike, in mid to
late April 1996, certified nursing assistant Rickie Piper spoke
with Loretta Bosworth, the assistant director of nursing
(ADON) at the Franklin facility. According to Piper, who had
participated in the strike and engaged in picketing of the facil-
ity, she asked Bosworth why her workdays had been reduced
from 10 to 9, per 2-week period, while less senior people did
not suffer any reduction. Piper testified that Bosworth, in re-
sponse, stated that those who had crossed the picket line would
not lose workdays. Bosworth, in her testimony, stated that she
could not recall a specific conversation with Piper concerning
this subject matter. Piper impressed me as a truthful witness.
Based upon her essentially uncontradicted testimony, I find that
the Respondents, through statutory Supervisor Bosworth, vio-
lated Section 8(a)(1) of the Act by threatening employees who
participated in the strike with reduced work hours.
According to the uncontradicted testimony of Linda Coch-
ran, a cook at the Meyersdale facility and a member of the ser-
vice and maintenance employee bargaining unit there, she was
approached about a week before the strike by the facility ad-
ministrator, Michael Walker, and questioned about what she
thought would happen concerning the then-impending work
stoppage. Walker told Cochran that if she went on strike, she
“probably wouldn’t have a job” when she came back. He fur-
ther stated that she, Cochran, should not think that she “could
just walk back in the door,” as that was a matter for the courts
to decide. During the conversation, Walter also stated that the
employee “might be replaced,” but, in addition, said, repeat-
edly, that Cochran would not have a job following the strike.
Accordingly, based on Cochran’s uncontradicted testimony, I
find that the Respondents, through Administrator Walker, vio-
lated Section 8(a)(1) of the Act by threatening employees with
job loss if they engaged in a strike.
Jeri Tagg worked in the laundry and housekeeping depart-
ment at the Murray Manor facility, from August 1994 until
December 1996, at which time she became a certified nursing
assistant. Tagg, who was not scheduled to work during the
strike, participated in strike activities and picketed at the facil-
ity. This employee, who had worked part time before the work
stoppage, saw her supervisor, Beverly Magill, immediately
following the strike and asked if there was a full-time position
open for her. Tagg testified that Magill, in response, stated,
“no,” as Tagg had “made the wrong fucking choice” regarding
the strike. Magill, in her testimony, confirmed that a conversa-
tion with Tagg occurred after the strike, but she denied making
the remark attributed to her by the employee. As I found

5 The fact-findings contained herein are based upon a composite of
the documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial conflict,
credibility resolutions have been set forth, infra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1338
Magill’s general denial less believable than the detailed version
of the conversation offered by Tagg, who appeared to be an
honest and forthright witness, I find, based upon Tagg’s testi-
mony, that the Respondents, through statutory Supervisor
Magill, the laundry and housekeeping supervisor at Murray
Manor, violated Section 8(a)(1) of the Act by informing an
employee that she would not be given full-time hours because
of her participation in the strike.
According to the uncontradicted testimony of Margaret
Moore, when she interviewed for a CNA position in March
1996 at the Haida Manor facility, she was told by statutory
Supervisor Nancy Piatek, the ADON, that she, Moore, would
not be hired unless she agreed to cross the picket line in the
event of a strike. Also at Haida Manor, according to the uncon-
tradicted testimony of Cathy Bobby, a then-recent hire as a
part-time casual CNA, she, Bobby, during the strike, was told
by Piatek to report to work on April 3, 1996, at some time dur-
ing the day for just an hour, any hour, “it did not matter when.”
Piatek further informed Bobby that, if she did not come to work
at all, she would no longer have a position at the facility. Based
upon the credible, uncontradicted testimony of Moore and
Bobby, I find that, at Haida Manor, the Respondents, through
supervisor Piatek, violated Section 8(a)(1) of the Act by threat-
ening an employee that she would not be hired if she did not
agree, in the event of a strike, to cross the picket line, and by
threatening an employee with discharge if she honored the
strike.
During the period preceding the April 1–4, 1996 strike, An-
thony Molinaro, the administrator of the Mt. Lebanon facility,
conducted meetings of the nursing staff at which he stated that
if there were a strike, the employees could be replaced. In ad-
dition, CNA Patricia Albano testified, about a week before the
strike, Molinaro told a group of unit employees who were
working at a nurse’s station in the facility that, if they went on
strike, they “would never get [their] jobs back and never be
allowed back in the facility.” Molinaro, in his testimony, de-
nied making the latter remark. After the strike, on April 6,
following Albano’s return to work, it is undisputed that Moli-
naro told her, during the course of a telephone conversation, “to
be careful” since Albano “was up to suspension in [her] write-
ups” and he, Molinaro, did not want her “to lose her job.”
Based upon my observation of their demeanor as witnesses, I
found Albano more credible than Molinaro and, where their
versions of conversations differ, I have relied upon Albano’s
testimony. Accordingly, I find that the Respondents, by Moli-
naro, violated Section 8(a)(1) of the Act by threatening em-
ployees, before the strike, with job loss if they participated in a
strike. On the other hand, I am unwilling to conclude that there
was illegality in his poststrike remark to Albano that, in view of
the status of her disciplinary record, she should be careful so as
to avoid termination under the existing progressive disciplinary
system, a comment more suggestive of innocent concern than
anything else.
At the William Penn facility, employees were permitted ac-
cess to the premises during their off-duty hours and they fre-
quently chose to visit at such times. However, according to the
very vague and uncorroborated testimony of Director of Nurs-
ing (DON) Margaret Weaver, management decided late in Oc-
tober 1996 that such visits would be curtailed, “or at least
monitored,” following the visit of two CNAs who, while there,
allegedly upset two of the residents by discussing union busi-
ness with them. On October 31, Halloween, CNAs Cindy
Burk, and Luann Riden, union members, dressed up in Hallow-
een costumes and went to visit residents at the nursing home
during the CNAs’ off-duty hours, to show their costumes.
They were approached in a hall by Director of Staff Develop-
ment Hope Brubaker, who told them to leave the building.
Nevertheless, the CNAs continued to visit with residents and
Brubaker followed them, telling them to leave. When the em-
ployees asked why, Brubaker, according to the undisputed re-
cord evidence, told them that the administrator, Lee Miller, had
instructed that an employee who was not working was “not
allowed in the building if you’re a union member.” At trial,
Brubaker testified that she made clear to Burke and Riden that
the facility would “be treating any union person who is not on
duty the same way.”
Based upon the above, I find that the Respondents violated
Section 8(a)(1) of the Act by informing employees at the Wil-
liam Penn facility that union members were no longer permitted
in the building during their off-duty hours, and by denying
normal access to off-duty employees who were members of
District 1199P. Whatever, if any, problem may have occurred
during the visit of two other employees some 10 days earlier,
did not create justification for denying or limiting access to all
union members, and only union members, contrary to the pre-
vious free access policy.6
The uncontradicted record evidence shows that on April 4,
1996, at Haida Manor, the facility’s security guards videotaped
the employees who had engaged in the April 1 to 4 strike and
who were, on April 4, approaching the facility and attempting
to return to work. The videotaping occurred in the total ab-
sence of violence or disruption of any kind. On June 2, be-
tween noon and 6 p.m., some 25 to 35 off-duty employees
picketed in front of, near but not on, facility property. Again, it
occurred absent any violence or disruption. During the entire
course of the picketing, an individual sat in the facility adminis-
trator’s car7 and videotaped the employees as they walked back
and forth.
The Respondents have offered no evidence tending to justify
the videotaping. In the circumstances, the conclusion is man-
dated that, by engaging in that activity, as set forth above, on
April 4 and June 2, 1996, the Respondents engaged in intimi-
dating conduct amounting to unlawful surveillance of their
employees’ protected activities, in violation of Section 8(a)(1)
of the Act.8
At the Meadville facility, prior to the strike, employees
commonly wore buttons and pins of various types, including
union insignia, attached to their clothing while at work. Shortly
after the strike, according to the testimony of Leatha Smith, a
CNA, ADON Judy Coleman asked Smith to take her union pin
off, and the employee did so. CNA Joyce Kircher testified that,

6 See Ring Can Corp., 303 NLRB 353, 363 (1991).
7 The administrator is the highest-ranking onsite official at each
home.
8 See Brunswick Hospital Center, 265 NLRB 803 (1982).
BEVERLY HEALTH & REHABILITATION SERVICES 1339
on April 10, 1996, Coleman told her that “I have to ask you to
remove your union button.” When Kircher asked what would
happen if she did not comply with that directive, Coleman told
her that “I was told that you would have to leave.” Kircher
then removed the insignia. Coleman, in her testimony, stated
that, after she was instructed by the facility administrator to ask
employees wearing the badge “Beverly Law Breaker” to re-
move it, because the message was upsetting to the facility’s
residents, she asked an employee to remove such a pin. This
occurred “around the time of the work stoppage.” Coleman
could not recall the name of the employee she spoke to, but
testified that she had one conversation, only. Both Smith and
Kircher testified that neither had ever worn a pin containing the
“Beverly Law Breaker” designation.
Coleman’s vague testimony concerning this matter did not,
in any event, challenge the credible, uncontradicted accounts of
events offered by Smith and Kircher. Their testimony shows
that the Respondents, having theretofore permitted employees
to wear buttons and pins at work, including union insignia,
instructed two employees, after the strike, to remove their pro-
union buttons. As only union insignia was prohibited, and in
the absence of evidence that the badges worn by Smith and
Kircher were offensive, I find that the Respondents, by those
directives, violated Section 8(a)(1) of the Act. The Respon-
dents further violated the Act at this facility when, on June 16,
1996, according to the uncontradicted testimony of CNA Julie
Snyder, she was told by supervisor Wilma Ishman-Heime that
certain rules of conduct applied only to employees who had
engaged in the strike.
At the Lancaster facility, too, employees had been allowed to
wear pins and buttons, including prounion stickers. However,
according to the testimony of Charles William, a cook, in De-
cember 1995, he was called to the office of the administrator,
Larry Ayres, who told Williams, a shop steward, that employ-
ees had to remove all union insignia. Williams so informed
other employees. Although the Respondents admitted this mat-
ter in their pleadings, Ayres testified at trial that the only button
he had ever prohibited was one stating, “Danger, Short Staff-
ing.” In light of the pleadings, as supported by Williams’
credible testimony, I find that the Respondents violated Section
8(a)(1) of the Act when, in December 1995, contrary to past
practice, they prohibited Lancaster employees from wearing
union buttons and stickers.9
2. The alleged violations of Section 8(a)(3) of the
Act—the discharges and other disciplines—and
the suspensions allegedly in violation of Section 8(a)(1)
of the Act
Josie Belice has been employed as a CNA at the Monroeville
facility since 1985, and she has been Local 1199P’s chapter
president there since 1986. Belice participated in the April 1–4,

9 Williams also testified that, in the same month, an announcement
was made over the facility’s public address system informing employ-
ees that they would no longer be allowed to wear union logos on dress
down days. As Williams’ testimony in this regard was somewhat con-
fused, and was denied by Ayres, I find that the General Counsel has not
sustained its burden and that the corresponding complaint allegation
should be dismissed.
1996 strike, and she engaged in picketing of the facility. She
returned to work for the 11 p.m. to 7 a.m. shift on the evening
of April 5, and, that night, she had a conversation in a hall with
two other CNAs who were returning strikers, and her remarks
were overheard by the shift supervisor, William Dickun. With
apparent reference to the many replacement employees who
were working in the building, including two on her shift, Belice
stated that the next time there was a strike she, Belice, would
come back as a “scab” since “they don’t have to do any work.”
Dickun then told her that the next time he heard that word, he
would write Belice up. Thereafter, Belice did not use the word,
“scab.”
Despite Dickun’s clearly expressed intention to let the matter
rest there, Belice, a few days later, received a written discipli-
nary write-up, dated April 6, for “making malicious statements
about another associate,” contrary to the Beverly work rules.
At a disciplinary meeting, Director of Nursing (DON) Bonnie
Forney told Belice that she would not tolerate the employees
calling others by malicious and derogatory names. Belice pro-
tested, stating that “scab” was neither malicious nor derogatory,
but a dictionary word. Moreover, Belice stated, she had not
called anyone a scab but had merely used the word in conversa-
tion.
In light of Belice’s union activism and her participation in
the strike, the Respondents’ knowledge of same and their
strong antiunion animus, as demonstrated in this and in the
Beverly I, II, III, and IV cases, the General Counsel has estab-
lished a prima facie case showing that the employee’s union
activities were a motivating factor in the Respondents’ decision
to discipline her. In my view, the Respondents have not shown
that the same action would have been taken, even absent Be-
lice’s protected conduct.10 Thus, Dickun, the management
official who overheard the comment at issue, regarded the mat-
ter as trivial, as shown by his testimony that he told the em-
ployee to “knock it off” and “that was really the end of it.” In
line with the tenor of his testimony, I note that the once stated
word, scab, was uttered in private conversation, and was not
directed at anyone, and, in all the circumstances, to have con-
cluded that it was a “malicious statement” about another asso-
ciate was, on the Respondents’ part, quite a stretch in logic,
suggesting, on its face, that the Respondents acted on the basis
of an agenda other than the stated one. I conclude that Belice
was disciplined due to her union activities, in violation of Sec-
tion 8(a)(3) of the Act.
Also at Monroeville, the Respondents, on September 27,
1996, discharged LPN John Wilson, employed there since
1986, and, at the time of the strike, the vice president of the
chapter who, as such, frequently filed grievances on behalf of
unit employees with management officials. Wilson, who par-
ticipated in the strike, was not recalled until August, at which
time he worked on an occasional basis, approximately 2 days
per week. DON Forney met with Wilson on September 27 and
advised him that he was being discharged because, some 8 or 9
days earlier, he had failed to administer a medication to a resi-
dent, and failed to record that fact in facility books, constituting

10 Wright Line, 281 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1340
resident neglect and falsification of records. She handed to him
the disciplinary action form, filled out before he got there,
without obtaining his version of events. At trial, Wilson testi-
fied that he had no recollection of an incident with the resident
in question, Feldmeier, but stated that, had he not given her her
medication, he would have duly recorded that fact. The write-
up provided to Wilson noted two previous disciplines issued to
him, one, several days before the onset of the strike, for insub-
ordination, namely, refusal to remove his union hat when di-
rected to do so by a management official, and the other, more
than a year before the alleged Feldmeier incident, for a remark
made about the ADON which he, Wilson, viewed as a joke and
which the Respondents viewed as a “false or misleading state-
ment” about an associate. Under the terms of the expired col-
lective-bargaining agreement, due to the age of the latter inci-
dent, it was to be disregarded.11
Forney testified that she decided to discharge Wilson after
speaking to the resident and reviewing the statements of others
who had interviewed Feldmeier. Forney opted to take that
action without speaking to Wilson or in any way attempting to
learn his version of events. While the discharge writeup re-
ferred to Feldmeier as alert and oriented, there is credible re-
cord evidence that she, in fact, was confused and suffered from
memory lapses.
In view of Wilson’s known and very extensive union activi-
ties and the Respondents’ demonstrated animus, the inference is
warranted that his protected activities were a motivating factor
in the decision to discharge him. Nor have the Respondents
shown that they would have taken that action even absent his
protected conduct. Rather, the Respondents discharged a 10-
year veteran employee without in any way seeking to learn his
version of what, if anything, happened when he tended to
Feldmeier, based solely upon the statements of a resident not in
full control of her faculties. The very manner of the investiga-
tion suggests, in the strongest way, that the Respondents seized
upon Feldmeier’s statements as a pretext to mask their true,
antiunion reasons for terminating Wilson’s employment, in
violation of Section 8(a)(3) of the Act. I so find and conclude.
At the Clarion facility, CNA Janet Crissman, a 13-year em-
ployee, has been a union delegate for some 6 or 7 years and, as
such, she files grievances and attends grievance meetings with
management officials. Crissman, who participated in the strike
and engaged in picketing, received two written warnings in the
days following her return to work on April 8. Thus, according
to her uncontradicted testimony, on April 9, she received a
disciplinary warning for failing that day to respond to a tabs
unit, an alarm attached to a patient who is at risk of falling. In
fact, she had answered the tabs unit some four or five times that
morning, and found that the patient was just moving around in
his bed and was not in danger. Crissman was distributing
breakfast trays when the alarm went off again, and she contin-
ued to do so. Registered Nurse (RN) Supervisor Sally Doran
walked toward the room of the patient in question, telling
Crissman that “you should be getting that tabs unit.” Crissman

11 The Respondents also introduced into evidence numerous writeups
issued to Wilson over the years, none of which were cited in the dis-
charge writeup.
continued to distribute trays, assuming that Doran was answer-
ing the alarm. Crissman was given the reprimand without be-
ing afforded an opportunity to explain her actions.
The General Counsel’s prima facie case of discriminatory
disciplinary action, based upon Crissman’s union activities, the
Respondents’ knowledge of same and their overwhelming anti-
union animus, stands unrefuted and, in addition, is further but-
tressed by the surrounding circumstances. Despite Crissman’s
many years of service at the facility, during which time she had
never been disciplined for a patient care matter, the Respon-
dents, facing questionable circumstances, rushed to discipline
her without seeking to obtain her version of events, further
suggesting that antiunion animus, not patient care concerns,
motivated the disciplinary action. The Respondents thereby
violated Section 8(a)(3) of the Act.
I further find that the April 19 reprimand issued to Crissman,
for failure to perform job duties related to patient care, was
unlawfully motivated. Regarding this matter, Crissman testi-
fied that she had taken a patient to the bathroom at about 11
a.m. that day, just prior to the CNA’s lunchbreak. Sometime
after Crissman’s return from lunch, she was given a written
reprimand by the charge nurse, Tamayra Shreckengast, who
told her that the patient had complained of a lump and, upon
investigation, Shreckengast discovered dried stool on him.
Again, Crissman was not given an opportunity to explain. At
trial, Shreckengast testified that it was, in fact, she who found
the dried stool, although she did not state when, and that, in her
opinion, what she found was not consistent with an 11 a.m.
toileting. Again, here, evidence of the Respondents’ race to
mete out discipline, without adequate investigation, serves to
buttress the General’s Counsel’s prima facie case that the disci-
pline was imposed in violation of Section 8(a)(3) of the Act. I
so conclude.
In April 1996, Mary Myers was a licensed practical nurse, on
part-time status at the Fayette facility, who worked as few as 8
hours per week. She was not scheduled to work during the
strike as she had requested time off during that period and,
thereafter, due to her wedding. She engaged in picketing of the
facility on April 1 and 3. On April 5, Myers received a regis-
tered letter stating that she had been replaced and would not be
offered immediate reinstatement but, rather, would be placed
on a preferred hiring list. At trial, the facility administrator,
Jim Fillipone, credibly explained that, as Myers had no set
work schedule, “she just slipped through the cracks.”
While I reject the General Counsel’s contention that Myers
was discharged, it is clear from the circumstances that the Re-
spondents believed that she was a striker and, on that basis, she
was permanently replaced. As Judge Wallace determined that
the strike was an unfair labor practice strike, the Respondents’
actions in permanently replacing Myers, and in refusing to
reinstate her following the strike, in the belief that she was a
striker, were violative of Section 8(a)(3) of the Act.
CNA Rickie Piper of the Franklin facility testified that, be-
fore the strike, she worked a full schedule of 10 days during
every 2-week period. Piper, who wore union buttons and stick-
ers to work, and passed out union leaflets outside the building,
continued in those hours after the strike ended. However, she
claimed, in mid-April, her work hours were reduced to 9 days
BEVERLY HEALTH & REHABILITATION SERVICES 1341
per 2-week period. As noted, supra, Piper complained about
the matter to ADON Bosworth and pointed out that less senior
nonstriking employees had not had their hours reduced. Piper
further testified that the change to her hours lasted for some 3
months.
At trial, the Respondents urged that Piper had not suffered a
cut in hours. However, in their posthearing brief, the reduction
in work time is conceded and the Respondents contend, instead,
that it was due to overstaffing, an argument not supported by
record evidence. In light of Bosworth’s statements to Piper, as
found above, that only those who had engaged in the strike
were subject to a loss of workdays, and in the absence of credi-
ble evidence that Piper would have suffered the reduction even
absent her extensive union activities, I conclude that Piper’s
hours were reduced for unlawful reasons, in violation of Sec-
tion 8(3) of the Act.
It is undisputed that the Respondents discharged probation-
ary employee Tammy Rummel, who worked at the Haida
Manor facility, for failure to report to work, or call in, on her
scheduled workdays during the strike, April 1 and 3, 1996.
Rummel engaged in picketing at the facility on those days, and
honored the strike. As probationary employees are fully enti-
tled to the protections of the Act, I conclude that the Respon-
dents violated Section 8(a)(3) of the Act by discharging Rum-
mel for not working during the work stoppage.12
As earlier found, the Respondents unlawfully threatened
probationary employee Cathy Bobby, a part-time causal CNA
at Haida Manor, with discharge if she honored the strike. In-
deed, as noted, ADON Piatek, during the strike, instructed
Bobby to report to work for an hour on April 3, 1996, regard-
less of the time of day. Instead, Bobby, who had earlier worked
at Haida Manor from July 1994 to October 1995, and who was
rehired and returned to work there on March 4, 1996, engaged
in picketing at the facility on April 3. Following her shift on
March 27, she was not scheduled to work again until April 6.
When she reported to work on that day, she was advised by
supervisor Peg Cunningham that she, Bobby, had been perma-
nently replaced.
Haida Manor DON Lisa Sedlemyer testified that Bobby was
discharged due to scheduling difficulties created by the fact of
her concurrent part-time employment at a local hospital. In this
connection, I note the undisputed evidence that Bobby advised
Piatek, at the time of her reemployment interview, of her hospi-
tal work, although she also stated her intent eventually to resign
from that job and work exclusively at Haida. While Piatek
testified that she understood that Bobby would effect such res-
ignation before she started work at Haida Manor, Bobby did not
do so. Indeed, upon her reemployment at Haida Manor, Bobby
submitted to the facility her schedule of work hours at the hos-
pital, and she was assigned work hours at the Beverly facility,
accordingly. Bobby was not disciplined due to unavailability at
any time.
Whatever scheduling difficulties, if any, were created be-
cause Bobby worked two part-time jobs, the Respondents were
willing to tolerate the situation until Bobby joined the strike,
picketed and refused, despite the threat of discharge, to aban-

12 See General Battery Corp., 241 NLRB 1166 (1979).
don the strike and report to work. The timing of the firing,
immediately when Bobby came to work, as scheduled, follow-
ing the strike, further supports the conclusion, mandated by the
General Counsel’s strong prima facie case and the Respon-
dents’ failure to adduce convincing evidence that they would
have taken the same action even absent Bobby’s protected con-
duct, that the Respondents acted for unlawful reasons. I find
and conclude that the Respondents, on April 6, 1996, violated
Section 8(a)(3) of the Act by discharging Bobby.
Anita Selfridge, an LPN employed at Haida Manor, partici-
pated in efforts, before the strike, to organize the LPNs working
at Haida Manor, despite the Respondents’ position that the
LPNs working there are statutory supervisors.13 In early April
1996, she was reprimanded for failure properly to administer
discipline to a CNA. The General Counsel contends that the
Selfridge discipline was meted out for unlawful reasons and
that, much later that year, Selfridge’s employee evaluation was
not as favorable as it otherwise would have been, due to the
April incident. As the General Counsel’s case concerning Sel-
fridge is based entirely upon her testimony, and as I found her a
wholly unreliable witness without real memory of the events
about which she testified, I conclude that the General Counsel
has failed to establish a prima facie case in these regards and
that the corresponding complaint allegations must be dismissed.
The Respondents employ CNAs Susan Rietscha and John
Katchmer at Haida Manor, Rietscha since 1990, and Katchmer
since 1989. Both participated in the strike and wore union
buttons and stickers to work. They each engaged in the infor-
mational picketing at the facility on June 2, 1996, and, then,
later that day, reported to work. Rietscha and Katchmer worked
together on June 2 and, while caring for a resident, they ne-
glected fully to pull the privacy curtain around the patient to
whom they were giving care. This fact was observed by
ADON Piatek who spoke to the CNAs about their failure to
comply with Federal and State regulations concerning the mat-
ter, as well as facility policy and procedure. Later in the shift,
the two CNAs received written reprimands from DON Sedle-
myer for their failure adequately to pull the privacy curtain that
day.
Both Rietscha and Katchmer testified that, normally, the fa-
cility issues oral warnings, only, for first offense violations of
the privacy rule and that the June 2 incident was, for both
CNAs, a first offense violation. Nonetheless, and despite the
suspicious timing of the disciplinary actions, I am not per-
suaded that the written warnings were issued for discriminatory
reasons in light of the seriousness of the rule which, incontro-
vertibly, the CNAs violated, and the evidence showing that at
least one other Haida Manor certified nursing assistant simi-
larly received a written warning for a first offense violation of
that rule. I conclude that the complaint allegations in this re-
gard should be dismissed.
Margaret Moore began work for the Respondents on March
11, 1996, as a part-time casual CNA at Haida Manor. As
found, supra, Moore was told during her employment inter-
view, earlier that month, that she would not be hired unless she

13 See Beverly Health & Rehabilitation Services v. NLRB, Nos. 98-
5160/5259 (6th Cir. April 28, 1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1342
agreed to cross the picket line during the course of the then-
impending strike. Moore consented to that condition, and she
worked during the strike. After the work stoppage, in May, she
missed 2 days of work due to illness. Moore offered doctor’s
excuses to her supervisor, Piatek, who told her that they were
unnecessary. Thereafter, Moore presented those notes to
Sedlemyer.
Later that month, Moore joined Local 585, and she began
wearing union buttons to work as well as a ribbon in support of
replaced strikers. On June 2, she participated in the informa-
tional picket line outside the facility. Five days later, on June 7,
Moore, still a probationary employee, was told by Sedlemyer
and Piatek that she was being fired, due to her job performance
and absenteeism. Prior to her discharge, Moore had not re-
ceived any discipline due to absenteeism, and had received one
disciplinary warning relating to job performance, for failing to
pull a privacy curtain. At trial, Sedlemyer testified that Moore
“had to leave early a lot because she had difficulties; she called
off. Her job performance we didn’t feel was up to par . . . .”
These assertions were not supported by corroborative evidence
and, indeed, prior to the discharge, Moore had not been coun-
seled concerning any of these matters, at any time.
The record evidence shows that once Moore, who had been
warned when she was hired not to support Local 585, began
openly to engage in union activities, including informational
picketing, she was quickly discharged. In view of the Respon-
dents’ knowledge of her activities, their overwhelming anti-
union animus and their failure to articulate lawful reasons, sup-
ported by evidence, to explain the firing, I must conclude that
Moore was discharged due to her union activities, in violation
of Section 8(a)(3) of the Act.
Linda Bernard worked as a part-time LPN at Haida Manor
from August 1994 until December 1997. She was active in
support of Local 585’s efforts to organize the LPNs working at
that facility, an effort, as noted, which was opposed by the Re-
spondents on the ground that the Haida LPNs are statutory
supervisors. Bernard’s prounion activities included participa-
tion in a demonstration in front of the facility which was video-
taped by a supervisor, Brenda Shilling, the dietary service man-
ager.
As a part-time worker, Bernard did not have a set work
schedule. Like other part-time LPNs, her scheduled days could
be supplemented as, under facility policy, part-time LPNs were
called, in order of seniority where possible, to replace sched-
uled LPNs who “called off.” In January 1996, Bernard and
part-time LPN Gloria Rainey sent a note to DON Sedlemyer
requesting that, in the case of call-offs, they be called to fill in,
in order of seniority. In response, Bernard and Rainey were
advised that call-offs are replaced on a seniority basis. More
than a year later, Bernard wrote another note, complaining that
she had not been called according to seniority on various dates
in February and March 1997, to replace call-offs. At trial, Ber-
nard claimed that there were some 14 such dates in February,
March and May 1997. However, she was unable to specify
which, if any, of those times actually involved a call-off situa-
tion, as opposed to leave scheduled in advance, in which case
replacements are designated in advance and placed on the
original work schedule. In these circumstances, I find the evi-
dence insufficient to show that Bernard, in fact, suffered any
loss of work opportunities in call-off situations, much less that
such loss occurred for discriminatory reasons. Accordingly, the
corresponding complaint allegation must be dismissed.
Leatha Smith has worked as a CNA at the Respondents’
Meadville facility since August 1979. For 4 years, until the fall
of 1996, she was Local 585’s representative to the Crawford
County Labor Council, a fact known to facility officials. Smith
honored the April 1996 strike, and she engaged in picketing at
the facility. Before and after the strike, she wore a union pin to
work. Several weeks after the work stoppage, Smith received
her first discipline in 17 years of employment, a written repri-
mand issued on April 22 for failure to respond to a patient’s
call bell on April 16. The discipline was signed by DON Julie
Walters who told Smith that she, Walters, was acting on the
reports of two unidentified fellow CNAs. At the time Walters
handed the reprimand to Smith, she did not ask Smith for an
explanation. In fact, Walters had completed the reprimand
form before she met with Smith. Walters testified that she
acted on the reports of CNAs who had been employed at the
facility for 4 months, and 1 month, respectively.
Smith was a union activist and the Respondents knew it and
bore overwhelming hostility toward such activism. They disci-
plined Smith on the heels of the strike for an offense that they
have not shown she committed. By the evidence showing that
the Respondents summarily acted on the reports of new hires
without even seeking to obtain the version of events as known
to Smith, a very long-time employee with a spotless discipli-
nary record, the Respondents have not shown that they would
have disciplined the employee even absent her protected con-
duct. I find and conclude that Smith was disciplined for dis-
criminatory reasons, in violation of Section 8(a)(3) of the Act.
At the Meadville facility operated by the Respondents, Joyce
Kircher was employed from 1972 until her discharge on April
22, 1996. A CNA there since 1985, she was, for the last 5
years of her employment preceding the firing, the Local 585
chapter president and, as such, she attended the Union’s griev-
ance meetings with the Meadville administrator. During the
strike, she participated in picketing of the facility. It is undis-
puted that the administrator, John Ferritto, discharged Kircher
on April 22 because she had “violated the Company’s ethics”
by remarks she made to the press. Ferritto was referring to an
article which appeared in the Meadville Tribune 3 days earlier,
on Friday, April 19, under the headline: “Employee: Quality
Declining at Meadville Care Center.” In the article, Kircher is
quoted as having stated that, since the arrival of the strike re-
placement workers, patient care at the facility is not accom-
plished in a timely manner and “the overall quality has gone
downhill . . . .”
The Respondents urge that Kircher’s discharge was not
unlawful because she engaged in disloyal conduct by disparag-
ing the quality of services offered by the facility.14 As I find
that Kircher was fired for engaging in protected, concerted
union activity, I conclude that her discharge was in violation of
Section 8(a)(3) of the Act. Thus, the Board has held that em-

14 NLRB v. Electrical Workers Local 1229 (Jefferson Standard
Broadcasting), 346 U.S. 464 (1953).
BEVERLY HEALTH & REHABILITATION SERVICES 1343
ployees may appeal for public support where the appeal is re-
lated to a legitimate, ongoing labor dispute between the em-
ployer and the employees, and where the employees do not
engage in vilification of the employer’s product or its reputa-
tion, that is, act out of a malicious motive. The fact that the
employees’ communication to the public raises sensitive or
delicate issues, which the employer would prefer to keep out of
the public eye, does not deprive the employees responsible for
the communication of the protections of the Act.15 This was
the situation here where, without question, the labor dispute
continued after the strike; the retention of replacement workers
in positions that, theretofore, had been occupied by many of the
strikers, had become a central issue; Kircher acted in that con-
text and not out of malicious purpose.
At the Meyersdale facility, CNAs Amiee Miller and Sheila
Oakes were District 1199P supporters who participated in the
strike, picketed at the facility and wore union buttons and stick-
ers to work. In addition, Miller held union office. They were,
on April 18, 1996, suspended, pending investigation of allega-
tions that they had abused a resident on April 8, as reported to
facility management by relatives of another resident. Cleared
of the abuse charges following the investigation, Miller and
Oakes were recalled to work after 5 days, but they were not
paid for the days off. I note that, thereafter, an unemployment
compensation referee determined, following a hearing, that
Miller had not abused a resident.
As to the April 8 incident, itself, according to Miller’s cred-
ited and uncontradicted testimony, when she and Oakes took
the resident in question to the bathroom to change her, they
shut the door as far as they could, but could not shut it com-
pletely since the resident was in a wheelchair. Miller further
testified that the resident is very resistive to care.
It is not disputed that, in suspending Miller and Oakes pend-
ing investigation, following an abuse allegation, the Respon-
dents were acting in strict accord with state regulations and
facility policy. However, the General Counsel argues that,
once the individuals were cleared of the abuse allegations, they
would have been paid for the days on which they were sus-
pended and did not work, pursuant to the Respondents’ work
rules, absent discriminatory treatment. Thus, the work rules
provide that suspended employees will receive backpay “if no
disciplinary action is taken.” In this connection, Meyersdale
Administrator Mike Walker testified, in very general terms, that
following investigation, “it was found that we probably felt it
was more of a privacy and dignity matter” than a case of abuse.
Miller and Oakes were union activists and the Respondents
knew it. In light of their extreme hostility towards such activi-
ties, the Respondents’ failure to pay these employees, following
the strike, for time lost due to suspension pending investigation
of charges of misconduct found not to have occurred, pursuant
to the Respondents’ work rules, presents a strong prima facie
case of discrimination. While the Respondents urge that they
would have taken the same action under their work rules, even
absent the protected conduct, they have presented no evidence

15 See Community Hospital of Roanoke Valley, 220 NLRB 217
(1975), enfd. 538 F.2d 607 (4th Cir. 1976); Allied Aviation Service Co.
of N.J., 248 NLRB 229 (1980).
to show that Miller and Oakes engaged in a lesser offense than
abuse, or any offense, or that the Respondents reasonably be-
lieved that they did. Rather, Miller’s description of the event in
question stands, on the state of this record, uncontradicted.
Accordingly, I conclude that, by their failure to pay these em-
ployees for time lost from work due to the suspensions, the
Respondents violated Section 8(a)(3) of the Act.
Sandra West was employed at the Respondents’ Mt. Leba-
non facility as a casual or regular part-time CNA, working 7-
1/2 hours per week for the 10-month period prior to the strike.
West worked the night shift immediately preceding the start of
the strike on April 1, 1996, at 6 a.m. Her shift was scheduled to
end at 7 a.m. At the start of the shift, the charge nurse, Connie
Petro, who usually, or often, functioned as the shift supervisor,
asked West and other CNAs if they intended to honor the strike
and they, including West, expressed their intention to do so.
Petro asked that they have their work finished by the 6 a.m.
scheduled start of the work stoppage, and West and the others
agreed. West, in fact, completed her work by the starting time
for the strike and she and the others left and joined the picket
line. Immediately following the strike, West received a termi-
nation letter from facility management for “patient abandon-
ment,” walking off the job 1 hour before the scheduled end of
her shift on April 1, without her supervisor’s approval. At trial,
Susan Karl, a weekend shift supervisor, testified that on the
morning of April 1, she, and not Petro, supervised West’s shift,
although Petro was working as the charge nurse on the shift and
often supervised the shift. According to Karl, no one informed
her that West would be leaving before the end of the shift.
Other CNAs on that shift, who walked off the job to join the
strike at 6 a.m. on April 1, were not disciplined, and the Re-
spondents had been advised of their intentions by letter from
District 1199P.
I need not determine whether Petro or Karl was in charge of
the shift on the morning of April 1. For, in notifying Petro of
her intent to strike, West satisfied her obligations as Petro was
the charge nurse, and, frequently, the shift supervisor, and thus,
the Respondents had placed her in a position of apparent au-
thority to receive West’s notification. By discharging West
because she joined the strike, the Respondents violated Section
8(a)(3) of the Act.
Also at Mt. Lebanon, CNA Susan Chojnicki, who, prior to
the strike, completed her probationary period, worked as a
causal or regular part-time employee. She was scheduled to
report during the work stoppage on April 2 and 3, but had in-
formed Mt. Lebanon officials that she would honor the strike,
which she did. Immediately after the strike, Chojnicki received
a letter from the Respondents discharging her because she was
a “no call/no show” on April 2, when she was picketing at the
facility. The Respondents contend that they were privileged to
fire Chojnicki because she was a casual employee, an argument
of no moment under Board law. I find that Chojnicki was dis-
charged for honoring the strike, in violation of Section 8(a)(3)
of the Act.
Patricia Albano worked as a CNA at the Respondents’ Mt.
Lebanon facility for more than 10 years, until her discharge on
April 9, 1996. She served as secretary-treasurer, then vice
president and, finally, president of the District 1199P chapter at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1344
that locale, and, among her many union activities, she partici-
pated in the strike. She returned to work on April 6 and, on that
day, and on April 7, she received oral and written disciplines,
and she was discharged on April 9. Thus, it is undisputed, on
April 6, in the morning, only, Albano and two other CNAs
refused to provide nourishments (food ordered by a physician
as a medically necessary dietary supplement for a particular
patient) to facility residents, a traditional part of a CNA’s job.
Despite the historical practice to the contrary, Albano asserted
to Elaine Voss, then the weekend RN supervisor, that she, Al-
bano, did not feel comfortable passing the food as it was pro-
vided pursuant to doctors’ orders. Albano received an oral
warning and the other CNAs involved were also disciplined.
On April 9, the Respondents issued three separate disciplines
to Albano for actions she allegedly took on April 7. She re-
ceived a written warning for dressing a resident in Christmas
socks on Easter Sunday, a discipline later rescinded after she,
Albano, filed a grievance.16 She was given a written warning
for failure to pass thickened water17 to a resident, as was an-
other CNA. In this connection, Albano insisted, in her testi-
mony, that she delivered whatever pitchers of such liquids had
been prepared for her patients by the dietary department. Fi-
nally, on April 9, Albano received a suspension, pending dis-
charge, for deliberately pouring cranberry juice and milk from a
patient’s tray onto the carpeted floor in the residents’ lounge.
At trial, Albano testified that it was the resident herself who
accidentally knocked over the liquids, while CNA Sandra
Dipippa, who was feeding the resident, testified that she does
not know how the liquids spilled, but that she believes Albano
was not in position to have spilled them.
DON Wheeler testified that the resident in question was not
physically capable of lifting up the glasses of liquid, or knock-
ing them over. She further testified that, following the incident,
and after observing cranberry juice and milk on the carpeting,
she asked the CNAs present in the lounge to tell her what had
happened, and only CNA Denise Parsons responded. Parsons,
who had participated in the strike, told Wheeler that she had
observed Albano pick up the glasses, dump them on the floor
and tell the resident, “so there.” Parsons provided a written
statement to that effect. Parsons, now Denise Bortezmana,
similarly testified at trial that, on the day in question, Albano
picked up the liquids, dumped them and told the resident, who
was not able to knock over liquids herself, “so there.” I credit
her testimony.
Administrator Molinaro discharged Albano on April 9, after
meeting with her and receiving her denial of wrongdoing con-
cerning all of the above incidents. Under the Respondents’
work rules, deliberate destruction of facility property is grounds
for immediate discharge and the Respondents, in reliance upon
Parson’s report, terminated Albano’s employment. Albano’s
claim for unemployment benefits was thereafter denied and,

16 Albano testified that these were the only socks in the resident’s
drawer. DON Hope Wheeler testified that, after observing how the
resident was dressed, she, Wheeler, checked the drawer and found that
other socks were available.
17 This is water with an additive to aid residents who have difficulty
in swallowing.
following a hearing, the Pennsylvania Unemployment Compen-
sation Board of Review determined that she had “deliberately
dumped juice and milk on the carpet in the facility dining
room.”
In light of Albano’s extensive union activities, the Respon-
dents’ knowledge of same and their antiunion animus and dem-
onstrated willingness to oppose their employees’ prounion ef-
forts by unlawful means, the inference is warranted that Albano
was discharged for unlawful reasons. However, in this in-
stance, the Respondents have shown that the employee would
have been terminated even absent her protected conduct. Thus,
after inviting reports from all witnesses to the April 7 incident
in the residents’ lounge, the Respondents reasonably acted upon
the only report they received, the credible and disinterested
account of Parsons revealing totally unacceptable worktime
behavior by Albano, justifying discharge under the work rules.
I, therefore, find and conclude that the Albano discharge was
not violative of the Act.
Rose Girdany was hired by the Respondents in 1990, to work
in the Mt. Lebanon facility. She began her employment as a
CNA but, in 1992, she became a laundry assistant, due to a
medical condition. In 1995 and 1996, she served as vice presi-
dent of her District 1199P chapter and, in April 1996, she par-
ticipated in the strike. On or after April 4, following the work
stoppage, she received a letter from the Respondents advising
her that she had been replaced, “but will be placed on a prefer-
ential hiring list based on seniority.” Thereafter, although not
returned to work, Girdany, as a union officer, remained active
in grievance processing.
According to Girdany’s credited and corroborated testimony,
on June 10, 1996, she and Loretta Walters, a replaced laundry
assistant, went to the facility for a grievance meeting. They
encountered Administrator Molinaro who told Walters that she
would be called back to work in order of seniority, when posi-
tions became available. Then, Molinaro told Girdany that he
did not like her “attitude” or her “mouth,” and that she “no
longer worked there” and she had to leave the premises. Moli-
naro, in his testimony, denied that he discharged Girdany in this
time period, but he did not address the June 10 conversation
about which she testified. I find that the events of June 10,
1996 transpired as described by Girdany, and I conclude that,
by informing her that she was no longer employed at Mt. Leba-
non, the Respondents, by Molinaro, discharged her, in violation
of Section 8(a)(3) of the Act.18
As found, supra, when Murray Manor facility laundry and
housekeeping department employee Jeri Tagg returned from
strike and picketing activities, she was told by her supervisor,
Beverly Magill, that she, Tagg, would not be given full-time
hours as she had made the wrong choice regarding the strike.
Tagg testified at trial that, before the strike, overtime hours in
the department were assigned on a seniority basis but, on sev-
eral occasions in April 1996, following the work stoppage, she,
Tagg, was passed over for overtime assignments in favor of less
senior employees. As there is a lack of evidence showing that

18 I regard as irrelevant Molinaro’s additional testimony concerning
efforts he made to facilitate Girdany’s return to work as a CNA since,
as noted, she left that position years earlier for medical reasons.
BEVERLY HEALTH & REHABILITATION SERVICES 1345
the Respondents, in April, bypassed Tagg when assigning such
hours, the corresponding complaint allegation must be dis-
missed.
Tagg also testified that, during the 2-year period preceding
the strike, she worked on Tuesdays and Wednesdays at another
job and, prior to the strike, the Respondents accommodated her
needs by not scheduling her for work at Murray Manor on those
days unless she, Tagg, specifically advised the facility that she
was available. Following the strike, she was scheduled on a
number of Tuesdays and Wednesdays and she handled the
problem by switching shifts with coworkers. However, after
receiving her assignment to work on Wednesday, May 15, she
was unable to find anyone to trade shifts with her and she so
notified Magill who told her that it was her responsibility to be
at work as scheduled. Tagg also reported the problem to the
facility administrator, Dan Landes, who told her that, if she did
not come to work on May 15, she would be regarded as a “no
call-no show.” On May 15, Tagg further testified, she “called
off” at 7 a.m. for her 8:30 a.m. shift. Thereafter, on May 20,
she received a written warning for noncompliance with the 2-
hour call-off policy, as set forth in the work rules. In defense,
the Respondents offered the testimony of Magill that, generally,
she was able to accommodate Tagg’s needs, but that she could
not find a replacement for her on May 15. Landes, in his testi-
mony, did not touch upon this matter.
The Respondents were willing uniformly to accommodate
Tagg’s special scheduling needs prior to the strike. Their
claimed sudden inability to do so afterwards has not been satis-
factorily explained. In light of Tagg’s union activities, the
Respondents’ animus and their earlier statement to Tagg, in a
discussion of work hours, that the employee had made the
wrong choice about the strike, the conclusion is amply war-
ranted that the Respondents ceased to accommodate Tagg’s
scheduling requirements in retaliation for her union activities.
The record does not contain credible evidence suggesting any
other reason for the departure from their prior practice in this
regard. Accordingly, I find that the Respondents acted for dis-
criminatory reasons, in violation of Section 8(a)(3) of the Act.
Likewise, after departing from their longstanding willingness to
avoid scheduling Tagg in conflict with her work hours at her
other job, the Respondents unlawfully disciplined Tagg for
noncompliance with the 2-hour call-in rule, although Tagg had
advised the facility that she could not work as scheduled some
48 hours in advance. The Respondents, thus, further violated
Section 8(a)(3) of the Act.
Tagg and Magill engaged in a heated discussion concerning
work related matters on May 22, 1996, and both became very
angry and they shouted at each other. When Tagg refused to
obey Magill’s instruction to come into her office, Magill yelled
“insubordination” at Tagg. On the next day, Tagg received a
written warning, signed by Magill, for unprofessional and inap-
propriate behavior and refusing to follow her supervisor’s di-
rectives. As there is a lack of record evidence from which to
conclude that the Respondents deliberately provoked this inci-
dent for unlawful ends, or otherwise acted for discriminatory
reasons, and as the circumstances suggest that, even absent
Tagg’s protected conduct, Magill would have disciplined the
employee for her actions on May 22, I find no illegality in the
issuance of the discipline at issue, and I conclude that the corre-
sponding complaint allegation should be dismissed for failure
of proof.
Michelle Weaver worked as a CNA at the Respondents’ Wil-
liam Penn facility from 1988 until July 1996. She participated
in the strike, picketed each day of the work stoppage and, be-
fore and after the strike, she wore union buttons and stickers at
work. In July, after the strike, during her lunch period, she
openly solicited replacement employees to sign union authori-
zation cards. On July 26, 1996, in the afternoon, Weaver was
scheduled to take her break at 2:15 p.m. but she did not take it
until 2:30 p.m., as fellow CNA Laurie Romig took her break
late, at 2:15 p.m., and the CNAs were not permitted to leave the
floor at the same time. Indeed, it was a common occurrence for
CNAs to take their breaks at other than the scheduled time, due
to residence care requirements. When Weaver took her break,
she notified CNA Romig, but not the nursing supervisor, pursu-
ant to the practice at the facility. Nevertheless, when Weaver
returned from break, LPN Supervisor Karen Sellers informed
her that she would be given an oral warning for failure to notify
her supervisor before she went on break, a requirement un-
known to Weaver. Later in the day, Hope Brubaker, director of
staff development, told Weaver, who had accumulated four
prior disciplines in the year preceding this incident, that she
was being suspended for failure to notify her LPN supervisor
before leaving the floor for her break. Brubaker told Weaver
that she had received the new work rules. Although Weaver’s
suspension was never formally converted to a discharge, she
was never brought back to work. Romig, who also took her
break late on July 26, was not disciplined. At trial, Administra-
tor Lee Miller testified that new work rules, requiring employ-
ees to report to the LPN charge nurse when leaving the nursing
floor, were posted after the strike at the nursing stations, and
may have been distributed to individual employees, assertions
at odds with substantial record evidence and which I discredit.
Weaver filed a grievance over her suspension. At an August
2 grievance meeting, District 1199P representatives asserted
that the discipline was ridiculous as, in a nursing home, em-
ployees are always late for breaks because they cannot stop in
the middle of patient care tasks. The Respondents’ labor rela-
tions manager, Ronald J. St. Cyr, answered, stating that Weaver
had been “doing union business on company time.”
Weaver was a union activist and the Respondents knew it.
The Respondents’ antiunion animus has manifested itself, inter
alia, in a willingness unlawfully to discharge such employees.
The Respondents, by asserting that new rules, prohibiting
Weaver’s conduct, were posted and distributed when, in fact,
they were not, have not shown that Weaver would have been
discharged even absent her protected conduct. Indeed, their
official, St. Cyr, in the course of a grievance meeting, related
the discharge to Weaver’s activities on behalf of District
1199P. I find and conclude that the Respondents discharged
Weaver in retaliation for her union activities, in violation of
Section 8(a)(3) of the Act.
On September 19, 1996, a number of employees engaged in
leafleting outside the William Penn facility, from 2 to 4 p.m.,
including CNA Glenda Smith. The leafleters stood along the
road, near the driveway exit from the facility. Smith observed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1346
ADON Kimberly Stuck driving out of the facility at about 3
p.m., and she, Smith, attempted to “flag” Stuck down to speak
to her about an unrelated matter. Stuck smiled and waved at
Smith, but continued on her way, and in a manner leading
Smith to believe that Stuck was attempting to run her over.
Smith turned to a fellow leafleter and, in a tone of voice loud
enough for Stuck to hear, referred to Stuck as “that bitch.”
Thereafter, Smith received a 3-day suspension for making the
remark.
Despite Smith’s union activities and the Respondents’
knowledge of same, and their overwhelming antiunion animus,
establishing a prima facie case of an unlawful suspension of
Smith, I am persuaded that the Respondents, in any event,
would have disciplined Smith for calling ADON Stuck “a
bitch,” in the presence of others, an apparently unprovoked
remark. As there is no showing that the Respondents otherwise
tolerated such conduct toward their supervisors, I conclude that
the discipline of Smith, however harsh, was not in violation of
Section 8(a)(3) of the Act.
Ruth Ann Pilarski worked at the William Penn facility from
1989 until December 1996, first as a CNA and, later, as a re-
storative aide, a bargaining unit position. Pilarski served as
union chapter president from 1992 until her employment termi-
nated. She went on medical leave on July 15, 1996, and, in
accordance with collective-bargaining contract provisions, and
facility policy, she was required to renew her leave every
month, on July 15, the monthly anniversary date, by appearing
at the facility and signing a renewal. In August, on August 15,
Pilarski turned in her renewal to ADON Stuck or her secretary,
Kay. As September 15 fell on a Sunday, Pilarski sought guid-
ance from Kay who told her to submit the renewal on the pre-
ceding Friday, or the following Monday. Kay added that re-
newals could be submitted up to 5 days before, and 5 days af-
ter, the monthly anniversary date. Pilarski took care of the
matter on Monday, September 16. In December, December 15
of the month again fell on Sunday. Pilarski was out of town on
Monday, December 16, and ill on Tuesday, December 17. On
Wednesday, December 18, she called the facility and told Kay
that she, Pilarski, would come in the next day, Thursday, De-
cember 19, to sign the renewal. Stuck got on the telephone and
Pilarski repeated what she had said to Kay. Stuck responded,
stating that “we’ve already sent you a registered letter in the
mail stating that you’ve resigned because you’re late signing
your medical leave.” Pilarski said that she had been advised
that there was a 5-day grace period, but Stuck said that was not
the case. The letter referred to was dated December 17.
Pilarski testified that, prior to the time of her discharge, the
30-day renewal policy had not been strictly enforced. CNA
McCoy testified that, during her period of medical leave, in
1996, renewal was due on September 4. McCoy never both-
ered to renew and returned to work, without incident, on Sep-
tember 17. CNA Bransetter testified that she was on medical
leave for most of 1996, and she submitted renewals to Stuck 2
days late in July, and 1 day late in October, without problem.
The Respondents presented no evidence showing instances of
strict enforcement of the renewal policy.
Pilarski was the Union’s chapter president. The Respondents
knew it and harbored an extreme degree of antiunion animus.
The Respondents seek to justify the Pilarski discharge by argu-
ing that it occurred as a result of enforcement of the clearly
established renewal rule for medical leave. Yet, prior to Pilar-
ski, the Respondents had not strictly enforced the rule. The
Respondents have not explained the disparate treatment. I find
and conclude that Pilarski was discharged for unlawful reasons,
in violation of Section 8(a)(3) of the Act.
As previously found, on October 31, 1996, Luann Riden, a
CNA at the William Penn facility, was instructed by a man-
agement official to leave the building during off-duty hours
because she was a union member, in violation of Section
8(a)(1) of the Act. Riden had honored the strike and, thereafter,
engaged in union leafleting. In January 1997, there were resi-
dents at the facility with communicable diseases warranting
their isolation from other patients. Riden was instructed by the
nurses that, if pregnant, or if she had not had the chicken pox,
she was not to enter the isolation rooms. As Riden was, in fact,
pregnant at the time, and as she was assigned to work on station
2, where two of the isolated residents were located, she ar-
ranged to switch sides with a CNA assigned to station 1, mak-
ing it easier for Riden to avoid the isolation rooms. Despite the
uncontradicted record evidence that such switches were, there-
tofore, routinely approved, absent overtime implications,
ADON Stuck denied Riden’s request to approve the switch.
When, thereafter, Riden presented a doctor’s note in support of
her request, Stuck and DON Margaret Weaver would not ac-
cept it, and they told the employee that “there was no light
duty,” and that, if she did not get the note changed, she would
have to take a leave of absence. Faced with this situation,
Riden had her physician change her restrictions. Based on the
foregoing, I find that the Respondents refused to follow estab-
lished facility practices, and allow Riden to switch sides with
another CNA, in retaliation for her union activities. By so re-
fusing to accommodate Riden’s needs, necessitated by her
pregnancy, the Respondents violated Section 8(a)(3) of the Act.
Christine Hayes worked as a CNA at the Respondents’ Lan-
caster facility from April 1993 until her discharge on October
31, 1995, several months before the strike. Beginning in spring
1995, she served as a Local 668 acting shop steward, and, in
that capacity, she met with management officials. Hayes was
also on the Union’s bargaining committee, following contract
expiration. On October 25, 1995, she was suspended, pending
investigation for discharge, for “gross negligence in perform-
ance of job duties,” which, under the Respondents’ work rules,
warrants immediate discharge. She was fired 6 days later.
With regard to the events of October 25, Hayes moved a
resident out of bed, and into a wheelchair, to go to a hairdresser
appointment. Although she knew that the resident needed a
pummel curtain on the wheelchair, to help keep her in position
on the chair and prevent her from falling, she, Hayes, could not
find the cushion and, so, put an ordinary pad on the chair and
took the resident to the charge nurse. Hayes told the charge
nurse that the resident was ready for her haircut but did not
have a pummel cushion because Hayes could not find one.
While it is undisputed that Hayes knew that the resident re-
quired the pummel cushion, there is dispute as to whether she
also knew, or should have known, that, in addition, the resident
needed a restraining belt to keep her from falling out of the
BEVERLY HEALTH & REHABILITATION SERVICES 1347
chair. Although Hayes denied knowing this, she conceded in
her testimony that, when she first placed the resident in the
wheelchair, she also looked for such a belt but could not find it,
either.
Immediately after Hayes left the resident, she fell out of the
wheelchair and onto the floor. Although serious injury did not
occur in this instance, there is substantial record evidence that
the resident could not safely be transported without the adaptive
equipment referred to, above, and that she was particularly
vulnerable to a worsening of her medical condition if a fall did
occur. Several hours later, when Hayes met with DON Nancy
Fry and received a suspension, Hayes, according to her own
testimony, told Fry that she, Hayes, did not have to express
sorrow for what had happened as Fry was “nobody, you’re just
the DON.”
Hayes was a union activist and the Respondents knew it.
Given their antiunion animus, there is a prima facie case against
the Respondents of unlawful discharge with regard to this
CNA. However, the Respondents have shown that Hayes
would have been discharged even absent her protected conduct
as, by her negligent actions, she placed a resident in her care in
grave danger of dire physical consequences. I conclude that the
discharge of Hayes was not unlawful under the Act.
Jean Haver was employed as a CNA at the Lancaster facility
from May 1985, until her discharge in September 1996. Haver
was the Union’s chief shop steward at Lancaster, beginning in
1990, and she wore numerous union buttons to work every day.
Haver called off sick on August 13, however, that day, she was
seen by Executive Director Larry Ayers walking down the
street in the company of her granddaughter. Thereafter, on
August 20, she was instructed to meet with Ayers, and DON
Fry, at which time Haver was told of Ayers’ August 13 obser-
vation. Haver explained that, on that day, she had gone to her
son’s house to get her medication, and that her granddaughter
walked back home with her. In response, Ayers and Fry asked
Haver to present a doctor’s excuse for the absence, but she
never did.19
On August 26, Fry handed to Haver a writeup suspending
her, pending investigation for discharge, for “violation of atten-
dance/sick leave policy.” The writeup noted the circumstances
surrounding the August 13 absence, and the failure to produce a
doctor’s statement, as requested. The subject memorandum
also referred to three prior disciplinary actions in the preceding
year. Haver was discharged on September 24.
At trial, the Respondents introduced three prior written warn-
ings issued to Haver for violation of attendance policies, two of
which were more than 1 year old on August 13, 1996, and,
thus, under the Respondents’ policies, were not usable to sup-
port later discipline. While Ayres testified that Haver received
three warnings in the year preceding August 13, only one, a
July 31, 1996 warning for excessive absenteeism, was intro-
duced into evidence. Also introduced were the Respondents’
policies permitting discipline “for claiming absence due to
illness . . . under false pretenses,” and allowing the facility to

19 At trial, Haver testified that she spoke to her doctor on the tele-
phone on August 13, but did not visit his office, and had no excuse to
present.
“require a physician’s certificate for absences of less than three
(3) days if the Employer has reasonable doubt as to the reason
for absence.”
Haver was a union activist and that was well known to the
Respondents, an employer willing, again and again, to rid itself
of union supporters by unlawful means. Throughout Haver’s
more than 11-year tenure of employment, she received many
warnings concerning attendance, but the issue did not result in
suspension or discharge. While, in answer to the prima facie
case of unlawful discharge of this employee in 1996, the Re-
spondents assert that she would have been fired, in any event,
for lawful reasons, clear and convincing arguments why that is
so have not been articulated. Alternately, the Respondents
suggest that the discharge was for a fourth warning for viola-
tion of the facility’s absenteeism/attendance policies, and as a
result of a fourth disciplinary warning of any sort. Yet, two of
the three prior warnings pertaining to attendance were stale as
of August 13, and as to warnings pertaining to other matters,
prior to August 13, 1996, they were briefly referred to in Ayres’
testimony but never introduced in evidence or otherwise
proven. Thus, the Respondents have not shown that, regardless
of her union activities, Haver would have been discharged, in
accordance with the progressive disciplinary policy in force at
the facility, for a fourth offense. Rather, I find and conclude
that the Respondents terminated her employment in violation of
Section 8(a)(3) of the Act.
Also at Lancaster, Charles Williams was employed in the
dietary department, as a cook, from June 1990 until his dis-
charge in May 1996. Williams was a shop steward throughout
his tenure of employment and, on behalf of Local 668, he often
met with management officials. He participated in the strike
and, thereafter, he was not recalled to work until May 18. On
Monday, May 20, he arrived at the facility at 5:15 a.m. for his
shift starting at 5:30 a.m., and he found two department em-
ployees who had not participated in the strike, dietary aides
Sharon Weit and Dot Bisking, already at work. In response to
Williams’ questions, Weit stated that she had arrived at 4:30
a.m. for her 6 a.m. shift, and Bisking said that she came in at
4:45 a.m. for her shift starting at 5:30 a.m. It is undisputed that
nothing else was said in this conversation.
Williams was particularly concerned about the foregoing
matter as two department employees, strike participants, had
not yet been recalled to work. He testified that, later that day,
in the presence of Weit and Bisking, as well as Liz Bellman,
the dietician, he told his supervisor, Dietary Manager Brian
Zimmerman, that he, Zimmerman, had people “working off the
clock.” Williams said that it was against the law and that he
would “be contacting Wage & Hour,” a reference to the divi-
sion of the United States Department of Labor. According to
Williams, Zimmerman made no response. Zimmerman, in his
testimony, stated that he could not recall a conversation in
which Williams indicated that he would contact wage and hour.
Williams’ detailed testimony concerning the conversation con-
tains the ring of truth and I credit it and find that he made the
comments to Zimmerman as he, Williams, testified.
Later in the week, on Saturday, May 25, Williams received a
telephone call, at his home, from Zimmerman, telling him not
to report to work on Monday, May 27, as scheduled. Zimmer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1348
man said he could not tell Williams the reason, and he referred
Williams to Executive Director Ayers. The employee was
unable to reach Ayers until June 10, when they met and Ayers
told Williams he had been suspended for “harassment and
threats.” Ayers would not tell Williams who it was that he
allegedly harassed and threatened, but, according to Williams,
Ayers did state that Williams had taken the matter out of his,
Ayers’, hands by calling wage and hour. Ayers testified that
the subject of contacting wage and hour “was not raised, to my
recollection, at all,” and he denied making the statement about
it attributed to him by Williams. Zimmerman, who was present
for the conversation, likewise could not recall any discussion of
wage and hour.20 Again, I found Williams the more believable
witness and I further find that the June 10 conversation tran-
spired as he testified. By the conclusion of the meeting, Wil-
liams had still not received a disciplinary writeup. At no time
was his version of events sought or received. He, thereafter,
filed a grievance.
At the third-step meeting on Williams’ grievance, the Re-
spondents advised him that he had harassed and threatened
Bisking, Weit, and a cook, Rick Scott, who worked Williams’
shift during the strike and after and, upon Williams’ return to
work, was transferred to the night shift.21 Williams was shown
statements signed by Scott and Bisking, the former stating that,
on May 22, Williams had told Scott that he, Williams,
“[W]ould kick my ass,” and the latter asserting that Bisking felt
“uncomfortable” working with Williams and found his de-
meanor “threatening.” It was on the strength of those state-
ments, obtained by Zimmerman after Scott had reported to him
the alleged May 22 remark, that Ayers decided to discharge
Williams without speaking to him or in any way seeking to hear
his side of the story. At trial, Williams denied having harassed
or threatened any of these individuals. In fact, he testified that,
following his return to work, he had neither spoken to Scott nor
been alone with him. His only conversation with Weit, or Bisk-
ing, he stated, was as set forth, above.
Williams, throughout his employment at Lancaster, was a
leading union activist who made the Respondents well aware of
his activities and, as determined, the Respondents maintained
an extreme degree of antiunion hostility. The Respondents
have not shown that Williams would have been suspended in-
definitely, or discharged, even absent his protected conduct.
Williams was a veteran employee with a clean disciplinary
record who had been rated “very good” in his evaluations. Yet,
on the basis of Scott’s report that William would “kick my ass,”
and the statement solicited from Bisking concerning Williams’
general demeanor, the Respondents raced “pell mell” to judg-
ment, and to the indefinite suspension of Williams, without
even advising him of the nature of his alleged misconduct,
much less affording him an opportunity to present his version
of occurrences. This course of events suggests, in the strongest
of ways, that the Respondents were out to rid themselves of
Williams, by any means available, and seized upon the Scott

20 Williams had not, in fact, made contact with the Government of-
fice.
21 Despite their separate shifts, the work hours of Williams and Scott
overlapped for some 1-1/2 hours per day.
statement as a pretext to mask its true motivation. I find and
conclude that Williams was discharged in violation of Section
8(a)(3) of the Act.
Cheryl Danner worked as a CNA at the Respondents’ Camp
Hill facility from August 1995 until her discharge in April
1996, and she wore union insignia to work every day. While
the Camp Hill employees did not go on strike, many of them
picketed at the facility on April 2, not including Danner who
was scheduled to work. When Danner arrived at the facility for
work that day, the administrator, Courtney O’Connor, asked her
if the picketing made her happy, and Danner replied, stating
that it did. Danner then proceeded to punch in for her shift, and
she went to her workstation. As the prior shift of CNAs was
not ready to do “report,” a summary of what “was happening to
the residents,” Danner, while waiting, walked into the resi-
dents’ dining room, and out onto the balcony, where she stayed
for 10 or 15 seconds and yelled to and waved at several friends
who were engaged in picketing. She then proceeded to her
station and did not miss any of the “report.” According to
Danner’s credible, corroborated testimony, facility rules do not
prohibit employees from walking out onto the balcony, whether
or not accompanied by a resident, and employees do so and are
not reprimanded.
Later that day, Danner, who had received four disciplines in
the year preceding April 2, 1996, was given a writeup, signed
by O’Connor, suspending the employee, pending investigation
for discharge, for “conduct widely regarded as immoral, im-
proper, fraudulent or otherwise inappropriate in the work
place,” specifically, “leaving the work area during work time”
without permission and, on the balcony, “engaging and involv-
ing self in mass informational picketing while on duty and on
facility property.” Danner was discharged 1 week later. In
explanation, Joan Eichelberger, director of staff development at
Camp Hill, testified that employees were not allowed out on the
balcony, on worktime or on breaks, unless they were there be-
cause they had taken a resident out. The Respondents produced
no rule to that effect and Eichelberger’s testimony in this regard
is not credited. She further testified that Danner’s discharge
was supportable both under the progressive disciplinary policy
and solely in response to her actions of April 2.
The asserted reason for the Danner discharge, that she had
spent some seconds on the balcony while waiting for “report,”
in violation of a rule that the evidence shows did not exist, can
only be described as bizarre. In light of the Respondents’ anti-
union hostility, the conclusion is amply warranted that the rea-
son for the firing was Danner’s known sympathies with the
actions of the pickets. The discharge, thus, was in violation of
the Act.
Susan Teetsel began working for the Respondents at the
Carpenter Care facility in 1992, as a CNA. She was a work
area leader for District 1199P, responsible for keeping employ-
ees in her locale informed of union matters. Teetsel wore union
badges and tags to work. On January 30, 1996, long prior to
the strike, she was suspended pending investigation of allega-
tions that she physically and/or mentally abused a patient in her
BEVERLY HEALTH & REHABILITATION SERVICES 1349
care.22 After 3 days, and following the facility’s investigation,
Teetsel was cleared of the abuse charge and reinstated, but was
written up for misconduct in the matter, and she was not paid
for the time off. Contrary to the General Counsel, I find no
discriminatory treatment in that regard.
According to Teetsel’s testimony, on January 28, she was
caring for a resident whom she described as “confused and very
weepy, and didn’t know what she wanted to do.” Teetsel told
the resident that she needed to get help to move her, the resi-
dent, from her bed and into a wheelchair, the patient’s normal
morning routine, and that it might take a few minutes. The
resident was crying when her husband walked into the room,
and the husband said to Teetsel that he could not understand
why it was taking so long to get help. Teetsel replied, stating
that “this is what our union is trying to solve, is the fact that we
don’t have enough help, and we need more.” The husband,
Teetsel testified, answered that “I really don’t care what the
blankety blank union wants to do, I want my wife out of bed.”
This shouted conversation was overheard by the charge nurse,
Mary Ann Saranchak, who found another CNA to assist Teetsel
in getting the patient up. Saranchak then instructed Teetsel to
leave the resident’s room. The January 30 suspension ensued.
Jean Franko, the Carpenter Care DON, testified that, later on
January 28, following the incident in question, the patient’s
husband visited the DON’s office, stated that he did not want
Teetsel to take care of his wife again and threatened to remove
his wife from the facility. The husband also said that he was
sick and tired of hearing from Teetsel about what was going on
with the Union. Franko interviewed the resident, in the course
of her subsequent investigation, and found her to be quite com-
petent. She also spoke to, and received written statements
from, Saranchak, social worker George Pittman and CNA Alli-
son Reeves. On the basis of the investigation, the DON con-
cluded that Teetsel, on the day before January 28, had failed to
bathe this resident, or change her nightgown, or report this to
the RN supervisor. On January 28, Franko testified, the patient
became upset when Teetsel insisted that she be moved into a
wheelchair, rather than her lounge chair, in violation of the
resident’s rights. As a result, Franko and then-Executive Direc-
tor Jeff Rentner concluded that, while Teetsel had not engaged
in patient abuse, she was guilty of misconduct justifying a
write-up and the refusal to pay her for the 3 days of her suspen-
sion.
Franko’s conclusions appear reasonably based and stand, on
the state of this record, essentially uncontradicted. Despite the
General Counsel’s prima facie case of discriminatory refusal to
pay Teetsel for the time off at issue, I am persuaded by the
DON’s testimony that the Respondents would have taken this
action even absent Teetsel’s protected conduct. Accordingly,
the complaint allegation in this regard must be dismissed.
At the York Terrace facility, as elsewhere, the Respondents,
under the terms of the contract covering the service and main-
tenance employees, which expired on November 30, 1995, had
the right to mandate that CNAs work overtime, per procedures

22 As found in considering a similar action by the Respondents at
another facility, suspension in this situation is mandatory due to the
nature of the alleged misconduct.
set forth in the contract. On May 12, 1996, Mother’s Day, an
employee called in sick, leaving the facility, under state regula-
tions, one CNA short. The DON, Carolyn Nelson, then sought
volunteers from those present at the home, but was unsuccess-
ful in that endeavor. She then decided to mandate overtime of a
CNA from among those on duty, in inverse order of seniority.
Successively, CNAs Antoinette Bainbridge, Ann Marie
Daubert, Tina Brown, Shannon Flickinger, and Samantha Yohe
were ordered to stay at work, and each of them refused to do so.
Nelson suspended each of those CNAs for refusing to comply
with a direct order. The amended consolidated complaint al-
leges, and the answer admits,23 that, in refusing to work manda-
tory overtime, the five CNAs involved engaged in concerted
activity regarding a matter of concern among the employees.
District 1199P filed a grievance over the issuance of the sus-
pensions and, at a third-step meeting held in June 1996, the
Union argued that the facility had not met its obligation, on
May 12, to seek volunteers from employees not then present at
the nursing home before mandating that anyone already there
stay and work an additional shift. The Union also asked why
the five individuals had been suspended, rather than had written
warnings issued to them, as had been done in the past.24 The
Respondents’ representative, Ron St. Cyr, stated that the greater
discipline had been imposed, here, because the CNAs “had
acted in concert.” Thereafter, by letter to the Union dated June
25, 1996, St. Cyr reiterated that the severity of the penalty was
due to the fact that “this was a concerted action.”
The pleadings and the record evidence thus establish that
Bainbridge, Daubert, Brown, Flickinger, and Yohe acted con-
certedly in refusing to work overtime on May 12, 1996, and
they were suspended because the Respondents understood that
they had acted in concert. As employees have a protected right
to engage in a concerted refusal to work mandatory overtime,
so long as that refusal is not a recurring one,25 I find and con-
clude that the Respondents issued the suspensions in violation
of Section 8(a)(1) of the Act.
Also at York Terrace, Susan Spiess worked as a CNA from
September 1994 until she was discharged in November 1996.
In March 1995, she became a union delegate and, as such, she
processed grievances and met with management officials on
behalf of the Union. Spiess wore union buttons to work.
In May 1996, Spiess was in the break room,26 prior to the
start of her shift, discussing a pending grievance with another
employee, Diane Bridges, involving the discharge of a co-
worker. Among the employees also in the room at that time
was Lucy Myro, a union member, who stated that, in her view,

23 At midtrial, I denied the Respondents’ motion to change its answer
in this regard, some 1 year after its filing, in the absence of compelling
reasons to permit it to do so. The Respondents’ posttrial motion, seek-
ing to accomplish the same result, is likewise denied.
24 The record evidence shows that there were two cases of refusal to
work mandated overtime at the facility in the past, and, in both in-
stances, the offenders received a warning.
25 Mike Yurosek & Son, Inc., 306 NLRB 1037, 1039 (1992); Sawyer
of Napa, Inc., 300 NLRB 131, 137 (1990).
26 The breakroom is not regarded as a patient care area when the
door is closed, as it apparently was in this case. However, it is located
adjacent to a patient care area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1350
the grievant under discussion did not deserve reinstatement.
According to Spiess, she told Myro that if she, Spiess, “wanted
your opinion, I would ask for it,” and the conversation then
ended. According to the others present, who testified in this
proceeding, Spiess, in a raised voice, told Myro to “mind your
fucking business,” and Myro began to cry. Myro testified that,
following the incident, she reported the matter to the facility
ADON, Nina Granito, and she, Myro, provided a written state-
ment. Later in the day, Granito told Spiess to go home as she
was being suspended for 3 days for harassing a coworker. Spi-
ess was not given any opportunity to explain, or offer her side
of the story, and she received no written notification concerning
the matter. When she returned to work, following the period of
unpaid days off, she was given a writeup, dated May 15, 1996,
and signed by the York Terrace administrator, Arlene Postupak,
imposing the suspension pending investigation for “conduct
widely regarded as immoral, improper, fraudulent or otherwise
inappropriate in the work place, including, but not limited to,
harassment of other associate.” At trial, Postupak testified that,
in approving the suspension, she relied upon the May 15 writ-
ten statements of Myro and the others present.
Concerning this and other matters, Spiess appeared to me to
testify in a manner calculated to advance her own interests. On
the other hand, Myro impressed me as a truthful and more reli-
able witness. Accordingly, I find that the breakroom discussion
occurred essentially as described in her corroborated testimony.
Nevertheless, I find that the suspension of Spiess was violative
of the Act. Thus, Spiess was a union activist and this was well
known to the Respondents who, repeatedly, were willing
unlawfully to discipline such employees in furtherance of their
antiunion approach to labor relations. The Respondents have
not shown that Spiess would have been disciplined even absent
her protected conduct. The brief off-the-clock incident in ques-
tion, relied upon by the Respondents to support the discipline,
occurred outside the presence of facility residents, and there is
neither contention nor evidence that it was loud enough to dis-
turb anyone or that facility operations were in any way dis-
rupted. The punishment imposed, quickly and without afford-
ing Spiess an opportunity to even comment upon the matter,
was so out of proportion to the alleged offense as to lead me to
conclude that the Respondents seized upon this essentially triv-
ial matter to justify an unlawfully motivated discipline. I find
and conclude that the May 15, 1996 suspension of Spiess was
in violation of Section 8(a)(3) of the Act.
With regard to the Spiess discharge, she was on duty for the
afternoon shift on Friday, November 15, 1996, when the facil-
ity was shortstaffed. Thus, Spiess and CNA Holcomb worked
the “skilled unit” by themselves, without the presence of a third
CNA usually assigned to that unit, from 3 until 7 p.m., when
Karen Monahan arrived. At supper break, according to the
credited testimony of LPN charge nurse, Kristin Krusnoski,
Spiess told Krusnoski that she had completed her section and
the charge nurse replied, telling Spiess to help Holcomb and
Monahan, after Spiess’ break, as the others were behind in their
work. Spiess became angry and she and Krusnoski exchanged
profanities and yelled at each other. Spiess told Krusnoski to
“stay the fuck off her back.” Later in the evening, Krusnoski
found Monahan crying and learned it was because Spiess had
yelled at her, claiming “it was all her fault.” Spiess left early
that night, due to the illness of one of her children.27
Spiess reported her version of the events of November 15 to
DON Nelson on Monday, November 18. Nelson testified that,
on that day, she also received a report from the registered nurse
on duty for the afternoon shift of November 15, Edna Driskill,
that, in the course of the shift, Spiess had been yelling at, and
pointing at, Monahan. Driskill also reported that Spiess refused
to help the other CNAs and that Spiess and Krusnoski shouted
at each other in the breakroom and used profanity. Nelson
obtained a written statement from Driskill and corroborative
statements from Monahan and Holcomb. On Tuesday, No-
vember 19, she met with Spiess, Krusnoski and Driskill and
heard their stories. Spiess was suspended indefinitely that day,
pending investigation, while Krusnoski received a writeup for
her use of a loud voice and foul language “where residents or
visitors could hear,” thus, “creating and contributing to disor-
derly conditions,” and Driskill was issued a writeup for her
failure to “assert supervisory skills” to control the situation. On
November 25, Spiess was discharged. The discharge notice,
handed to her at that time, stated that the action was taken be-
cause Spiess threatened another employee after a verbal alterca-
tion with the charge nurse and the RN on duty.
As found above, Spiess was unlawfully disciplined in May
1996, and her discharge in November of that year presents a
prima facie case of further action against her in violation of
Section 8(a)(3) of the Act. However, in this instance, the Re-
spondents have shown that the same action would have been
taken even absent Spiess’ protected conduct. Spiess’ unpro-
voked conduct, in the setting of a nursing home, was suffi-
ciently flagrant and intolerable so as adequately to explain the
Respondents’ action in discharging her, and the record evidence
does not indicate that the Respondents merely seized upon the
November 15 incident to mask other reasons for the Spiess
discharge. I find no violation of the Act in this regard.
3. The alleged violations of Section 8(a)(5) of the Act and
related 8(a)(3) issues
The April 1 to 4, 1996 strike occurred, as noted, at 15 of the
Respondents’ Pennsylvania facilities, namely, Monroeville,
Clarion, Fayette, Franklin, Haida Manor, Meadville, Meyers-
dale, Mt. Lebanon, Murray Manor, Richland, William Penn,
Reading, Lancaster, Caledonia, and Carpenter. In his decision
in the Beverly IV cases, Judge Wallace determined that the
strike was an unfair labor practice strike.
At the above-named facilities, the expired collective-
bargaining agreements provide to unit employees the option of
receiving health insurance benefits if they meet certain speci-
fied conditions. The costs of such benefits are borne partly by
the employee, through payroll deduction, and partly by the
employer, in an amount in addition to the payroll deduction.
The agreements generally provide, as do the Respondents’ pol-
icy manuals, that employees on voluntary leave of absence
must pay the Company’s portion of the premiums, as well as
the employee portion, in order to keep the insurance in force

27 To the extent Spiess’ testimony concerning occurrences that eve-
ning differs, it is not credited since, for the reasons noted, I did not find
her a credible witness.
BEVERLY HEALTH & REHABILITATION SERVICES 1351
during the term of the leave. Thus, the employee handbook
states:
If at any time during your employment you take an unpaid
leave of absence, you may continue your medical and dental
coverage, but you will be responsible for the full premium
amount during the leave.
As a matter of practice, employees who voluntarily take time
off, without pay, such as a leave of absence for personal or
medical reasons, are required to pay 100 percent of the cost of
their health insurance. On the other hand, employees away
from work on compensable time, such as a personal day or a
sick day, are not required to pay the employer’s share of the
premium. Also, those on short-term suspension, even if the
suspension is determined to be appropriate, are not held respon-
sible for both premium shares since the time off in that instance
is not voluntary.
Following the strike, each facility, by direction of Wayne
Chapman, Beverly Health and Rehabilitation Services, Inc. vice
president of operations for central and eastern Pennsylvania,
deducted from the pay of the employees who participated in the
strike, and returned to work, the amount of the Employer’s
health insurance contribution covering days that those employ-
ees were scheduled to work but did not work because of the
strike. The Respondents acted without notice to, or bargaining
with, the Unions. In the General Counsel’s view, this conced-
edly unusual deduction was in retaliation for the employees’
strike activity and was in violation of Section 8(a)(3) and (5) of
the Act.
I conclude, in agreement with the Respondents, that the fore-
going deduction of the Employer’s share of the health insurance
premiums of the strikers, covering the period of the strike, was
consistent with contractual provisions and established practice
under which employees, in order to retain coverage, are re-
quired to pay 100 percent of the health insurance premiums for
voluntary, noncompensable periods away from the workplace.
It was also consistent with the well established principle that an
employer need not pay wages to strikers or otherwise finance a
strike against itself. Nor were the benefits at issue here accrued
benefits.28 As the Respondents’ actions were not, in their im-
pact, inherently destructive of important employee rights, and
were neither discriminatory nor a unilateral change of estab-
lished terms and condition of employment, they were not viola-
tive of the Act.
The Respondents’ employees are awarded as many as 3
“personal days” off work per year, depending upon their years
of service, on the anniversary date of their hire, and they have
until the next anniversary date to use them. Personal days are
awarded to full-time employees, only, and part-time employees
do not receive them. Historically, full-time employees with
accrued, but unused, personal days who go on part-time status
are not permitted use of those days until they return to a full-
time position. At the Monroeville facility, and, perhaps, at
Reading, full-time employees who participated in the April 1 to
4, 1996 strike, and who returned to part-time positions, were
not permitted to avail themselves of their accrued benefit in the

28 See Texaco, Inc., 285 NLRB 241 (1987).
above-referenced regard until they resumed full-time status. As
enjoyment of the accrued benefit was, thus, not denied, but
postponed, and as this was done for nondiscriminatory reasons
and in accordance with established policy, the Respondents, per
se, violated neither Section 8(a)(3) nor Section 8(a)(5) of the
Act in this regard.29
In August 1996, the Respondents withdrew recognition of
Local 585 as bargaining representative of its service and main-
tenance employees at the Grandview facility and, in November,
they withdrew recognition of District 1199P as the exclusive
representative of its LPNs working at Mt. Lebanon. The Gen-
eral Counsel contends that, in each case, the Respondents acted
in violation of Section 8(a)(5) of the Act. I agree.
Local 585 was certified as collective-bargaining representa-
tive in a service and maintenance employee unit at Grandview
on September 26, 1991. An initial collective-bargaining
agreement expired on December 31, 1994, and a successor
agreement was never concluded. In spring 1996, an employee
presented to the facility administrator, Tamara Montell, a peti-
tion purportedly signed by a majority of unit employees, ex-
pressing the desires of the signatories to rid themselves of the
Union. In June, the Respondents announced their intention to
conduct a secret-ballot poll testing the desires of the unit em-
ployees in this regard, and the Union was invited to participate
in the procedure but it declined to do so. Such a poll was, in
fact, conducted on August 22, 1996, by Barbara Crudo, a for-
mer mayor of Oil City, Pennsylvania, where the Grandview
facility is located. On the basis of the vote, the Respondents,
by letter dated August 11, 1996, and received by Local 585 on
September 13, withdrew recognition. Thereafter, they refused
to accept and process grievances and ceased payroll deduction
of COPE payments, that is, contributions to the Union’s politi-
cal action fund. At the time the poll was announced, and when
it was conducted, there were, outstanding, serious and unreme-
died unfair labor practices committed at Grandview, in viola-
tion of Section 8(a)(1), (3), and (5) of the Act.30
District 1199P was certified as collective-bargaining repre-
sentative in an LPN unit at Mt. Lebanon on November 14,
1988. The most recent contract covering that unit expired on
November 30, 1995, a year prior to the withdrawal of recogni-
tion. In November 1996, the Mt. Lebanon administrator, An-
thony Molinaro, received a petition purportedly signed by 9 of
the 11 unit employees, expressing the desires of the signatories
to end their representation by the Union. The Respondents had
no involvement in generating that document. On the strength
of the petition, recognition was withdrawn, despite serious,
unremedied, prior violations of Section 8(a)(1), (3), and (5) of

29 The General Counsel does not contend here that, since the particu-
lar strikers in question were, like all of the strikers, found by Judge
Wallace to have been unfair labor practice strikers, they immediately
should have been returned to full-time positions following the strike
where they would have been eligible to use their accrued personal days
at once and, on that basis, denial of their opportunity to do so was a
statutory violation.
30 See Judge Wallace’s decision in the Beverly IV cases, supra, and
the decision of Judge William Kocol in Beverly Enterprises–
Pennsylvania, Inc., JD–156–97 (Oct. 24, 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1352
the Act, as found by Judge Wallace, directly impacting that
bargaining unit.
The above-described withdrawals of recognition were
unlawful as they occurred despite unremedied unfair labor
practices at the affected facilities precluding the existence of an
objective basis for believing that the employees in the involved
units no longer wished to have representation. It is well estab-
lished that “good-faith” doubt cannot be built upon the unfair
labor practices of the doubter and, in these cases, the Respon-
dents’ numerous unfair labor practices made it impossible to
determine whether the Unions continued to enjoy majority
support in the respective bargaining units, and precluded the
Respondents from conducting a poll at Grandview. The Re-
spondents violated Section 8(a)(5) of the Act by the withdraw-
als of recognition, and, too, at Grandview, by ceasing to make
COPE deductions and remittances and by ceasing to accept and
process grievances.
With regard to the information requests,31 they are to be
judged under settled law establishing that an employer has a
statutory obligation promptly to provide, on request, relevant
information needed by a union for the proper performance of its
duties as collective-bargaining representative of the employer’s
employees.32 Where a union’s request is for information per-
taining to the workers in the bargaining unit it represents, which
goes to the core of the employer-employee relationship, that
information is presumptively relevant. Moreover, in all cases, a
“liberal discovery-type standard” is used to determine whether
the information requested is relevant, or potentially relevant,
necessitating its production.33 Information requested for pur-
poses of processing grievances, or to determine whether or not
to pursue a grievance, is relevant and necessary to performance
of a union’s statutory role as bargaining representative.34
Specifically, the information requests at issue here, in
chronological order, include District 1199P’s February 1, 1996
letter request of the Richland facility for information regarding
a proposed change from cloth diapers to “Depends” undergar-
ments for incontinent residents, a change which the Union
feared would affect adversely bargaining unit positions in the
laundry department. The information was not provided. On
February 29, the Union, by letter, requested of the Richland
facility information concerning the facility’s reported change in
unit positions, from one full-time activities aide to two part-
time aides, without bargaining. The Union grieved the matter.
The information was not provided. On March 5, 1996, Local
585, by letter, requested of the Meadville facility information
concerning the discharge of dietary aide Kelly Smith, a member
of the bargaining unit. The information was not provided.
Also on March 5, Local 585, by letter, requested of the Mead-
ville facility information concerning the creation of a new CNA

31 In assessing these issues, I have accorded no weight to the testi-
mony of Maria Fisher, formerly Maria Spinazzola, the Caledonia facil-
ity administrator, whose testimony I found vague, illogical and, often,
internally inconsistent.
32 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
33 Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th
Cir. 1976).
34 Leland Stanford, Jr. University, 262 NLRB 136 (1982), enfd. 415
F.2d 473 (9th Cir. 1983).
position on the 11 p.m. to 7 a.m. shift which, employees had
reported to the Union, had not been posted. The information
was not provided. On March 11, 1996, District 1199P, in writ-
ing, requested of the Richland facility the time schedules of
Richland employee Margaret Pynkala, assertedly to assist in the
processing of a grievance. The information was not provided.
On April 4, 1996, immediately following the strike, Local 558,
by letter, requested of the Caledonia facility that the Union be
provided with the names of the employees whom the facility
intended to replace, a list of those who would be recalled and
the criteria employed in making the determination. Local 668
sought the information to help it ensure that the terms of the
expired collective-bargaining agreement at Caledonia were
being honored. The information was not provided.
By letters dated April 5 and 16, 1996, Local 585, and District
1199P, respectively, requested of the Franklin, Meadville,
Murray, Monroeville, Clarion, Fayette, Meyersdale, Mt. Leba-
non, Richland, William Penn, Reading and Carpenter facilities,
information including the names, addresses, home telephone
numbers, social security numbers, dates of hire, job classifica-
tions, status as full-time or part-time shifts and wage rates of all
employees hired after March 15, 1996, with indication of which
employees were hired as replacements during and after the
strike. The Unions sought this information to enable them ade-
quately to represent the unit employees, strikers as well as non-
strikers and replacement workers, to identify the individuals
they represented and track their status and, in certain instances,
to communicate with represented employees concerning con-
tract negotiations. The Unions received no response to the
requests from the Meadville and Richland facilities. The other
facilities did respond, but identified the replacement workers,
not by name, but by letter designation, only, stating, as justifi-
cation, using language centrally provided to each facility, that it
was doing so because of “incidents of harassment (under inves-
tigation).” Yet, with respect to 9 of the above-referenced 12
facilities, the record contains no evidence whatsoever of acts of
harassment. While there was generalized testimony about iso-
lated incidents of harassment at Monroeville, Murray Manor
and Reading, there was no evidence offered of disciplinary
action taken against anyone. In the circumstances, I conclude
that the centrally directed claim, that incidents of harassment
justified withholding the names of the replacement workers
from the bargaining representatives, bore no relation to the
actual facts at the subject facilities.
After learning from the Respondents’ officials that, at Cale-
donia, a new attendance policy would be implemented on June
1, 1996, Local 668, by letter dated May 10, 1996, requested,
inter alia, information concerning the new policy and the impe-
tus for it. The information was not provided. By letter dated
June 20, Local 585 requested of the Meadville facility informa-
tion concerning the discharge of CNA Julie Whitman. The
information was not provided. Following a reduction in the
working hours of bargaining unit employees at the Meyersdale
facility, District 1199P, by letter dated July 3, requested, inter
alia, information bearing upon such a reduction, including the
patient census, the names of affected employees and an expla-
nation of why their hours had been cut. The information was
not provided. Rather, in his letter to the Union of July 10, the
BEVERLY HEALTH & REHABILITATION SERVICES 1353
Meyersdale administrator, Mike Walker, stated that, since no
layoff occurred, District 1199P’s request was “not valid.” By
letter dated September 24, 1996, handdelivered to the Caledo-
nia facility administrator, Local 668 requested information
about facility policies needed to process a pending grievance
concerning the facility’s denial of light duty work, as sought by
the grievant. Contrary to the testimony of administrator Fisher
(see fn. 31), I find, based on the credible testimony, that the
information was not provided.
In late September 1996, the Unions sent letters to the appro-
priate facilities, namely, Clarion, Franklin, Haida Manor,
Meadville, Murray, Richland, William Penn, Lancaster, Cale-
donia, Camp Hill, and Blue Ridge, requesting, inter alia, “in
order to represent our members and investigate grievances,” a
list of bargaining unit employees at each facility, full time and
part time, arranged by classification and seniority, and includ-
ing dates of hire, wage rates, and average number of hours
worked per week during 1996. Although the record evidence
shows that such information had been routinely requested and
supplied in the past, at company expense, such was not the case
this time. Instead, each of the administrators at the above listed
facilities who responded, at all, to the information requests,
sought payment to cover the claimed cost of production of the
information. When the Unions renewed their requests, but
declined to pay, they received letters from the Respondents’
manager of labor relations, Ron St. Cyr, dated October 22,
1996, refusing to supply the requested information absent union
agreement to cover the costs of preparation. The Unions did
not accept this condition and the information was not supplied.
On November 22, 1996, Local 668, by letter, sought infor-
mation from the Caledonia facility regarding the discharge of
unit employee Denise Foltz, to assist in the Union’s investiga-
tion of her grievance. Contrary to the testimony of administra-
tor Fisher (see fn. 31), the credible evidence shows that the
information was not supplied. On December 11, by letter, Lo-
cal 668 requested of the Caledonia facility information regard-
ing a then recent reduction in the work hours of full-time
CNAs. When the facility did not respond, the Union renewed
the request by letter dated January 16, 1997. Finally, on Febru-
ary 10, 1997, the facility sent to the Union a partial answer,
omitting requested information concerning recent hires and
providing, only, an incomplete list of employees whose hours
had been reduced.
By letter dated January 17, 1997, Local 685 requested of the
Meadville facility information concerning the grievances of
CNAs Nancy Huttelmeyer, Pam Whitman, and Dan Bump with
regard to the reduction in work hours claimed to have been
suffered by them, to assist in processing those grievances. The
information was not provided. On February 3, 1997, Local 585
requested of the Haida Manor facility information regarding a
claimed reduction in working days and hours of the unit em-
ployees, without regard to seniority, contrary to the terms of the
then-expired collective-bargaining agreement. The information
was not provided. By letter dated February 4, 1997, Local 668
requested of the Caledonia facility information concerning a
claimed expansion of duties of the employees in the dietary and
laundry departments in order, inter alia, to process a grievance.
Subsequently, a Local 668 representative made additional oral
requests for this information. It was not supplied. By letter of
February 28, Local 668 requested of the Caledonia facility
information concerning a claimed expansion of duties of the
cooks in order, inter alia, to process a grievance. Despite this,
and followup oral requests for the information, it was not pro-
vided.
Under the cases authorities cited above, I find and conclude
that, in each of the foregoing instances, by failing and refusing
to provide the Unions with information which was relevant and
necessary to proper performance of their duties as collective-
bargaining representatives, and, in certain instances, failing
adequately to respond to proper requests for relevant informa-
tion, without justification, the Respondents violated Section
8(a)(5) of the Act. The Respondents further violated that por-
tion of the Act by demanding payment for relevant and neces-
sary information which, previously, had been provided rou-
tinely and without change.
The General Counsel also alleges that, following contract
expiration at the various facilities, the Respondents made uni-
lateral changes in the terms and conditions of employment of
the unit employees. The Board and the courts have held, with
few exceptions, that terms and conditions of employment em-
bodied in a collective-bargaining agreement, including a griev-
ance resolution system, remain in effect following the expira-
tion of the contract. Such terms and conditions may not be
modified without bargaining and the parties either reaching
agreement or coming to impasse.35 Moreover, and contrary to
the Respondents’ argument that many of the alleged unlawful
changes at issue here were privileged, due to the management-
rights clauses of the expired contracts, such clauses do not sur-
vive contract expiration. Rather, the “waiver of bargaining
rights contained in a contractual management-rights provision
normally is limited to the time during which the contract that
contains it is in effect” and, absent evidence of the parties’
“specific intent that the management-rights clause should sur-
vive the contract, it expires with the contract.”36 However, a
violation of the bargaining obligation is not shown unless the
unilateral change alters established conditions of employment
and is a “material, substantial and a significant change” from
prior practice.37
Applying these principles to the matters at issue here, I find
that, in April or May 1996, at Monroeville, the Respondents
violated Section 8(a)(5) of the Act when, unilaterally, they
began to enforce a previously dormant policy requiring em-
ployees to provide the facility with a doctor’s excuse if they
“called off” from work on a weekend. On the other hand, by
unilaterally implementing, at Monroeville, in July 1996, a “slo-

35 NLRB v. Katz, 369 U.S. 736 (1962); Luden’s, Inc. v. Bakery
Workers Local 6, 28 F.3d 347 (3d Cir. 1994); Champion Parts Rebuild-
ers v. NLRB, 717 F.2d 845 (3d Cir. 1983); Leeds & Northrup Co. v.
NLRB, 391 F.2d 874 (3d. Cir. 1968); Shipbuilder Workers v. NLRB,
320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964).
36 Buck Creek Coal, Inc., 310 NLRB 1240 (1993); Furniture Renters
of America, Inc., 311 NLRB 749 (1993), enfd. in relavant part 36 F.3d
1240 (3d Cir. 1994).
37 Stone Container Corp., 313 NLRB 336 (1993); United Technolo-
gies Corp., 278 NLRB 306 (1986); Rust Craft Broadcasting of New
York, Inc., 225 NLRB 327 (1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1354
gan of the week” program, which ran for a period of 4 weeks,
under which six employees every week were given the oppor-
tunity to win $2 each if they could identify the week’s desig-
nated safety slogan, the Respondents did not violate the Act.
Implementation of this short-lived minor program neither cre-
ated a new condition of employment nor amounted to a signifi-
cant change from prior practice. At the Fayette facility, in June
1996, the Respondents violated Section 8(a)(5) of the Act
when, unilaterally, they, for the first time, enforced a policy
under which employees received 3-day suspensions for a first
refusal to work mandatory overtime, and were discharged for a
second refusal. At the Franklin facility, in May 1996, the Re-
spondents began to discipline employees for medication errors
whereas, theretofore, only employees with a history of such
mistakes were disciplined; began requiring employees, contrary
to past practice, to make up a weekend on which they they
“called off” by working the following weekend; posted a new
policy restricting employee use of weekend days as part of their
vacations whereas, prior to this, employees were not so re-
stricted as long as there was sufficient staff to tend the facility.
Each of these changes in terms and conditions of employment
was made without notification to, or bargaining with, Local
585, in violation of Section 8(a)(5) of the Act.
At the Haida facility, in 1994 and 1995, an “associate of the
month” was named each month from among unit and nonunit
employees as well as management personnel and, at the end of
the year, one of the monthly winners was designated “associate
of the year” and given a reward of $100. The Respondents
unilaterally eliminated the “associate of the year” program in
1996. I find no violation of the Act in that regard as the pro-
gram was relatively short lived, affected only one person, not
necessarily a unit employee, each year and had a negligible
effect on terms and conditions of employment.
At Meadville, in January 1997, the Respondents made
changes to the CNAs’ work schedule after it was posted, con-
trary to the established practice of not altering schedules once
they were posted except to provide coverage in case of a “call
off.” This occurred on a one-time basis, incidental to adjust-
ments in the staffing level, and did not, in my judgment,
amount to an unlawful unilateral change in a term and condi-
tion of employment. On the other hand when, in February
1997, the Respondents, at Murray Manor, contrary to estab-
lished practice, unilaterally ceased to allow employees to “give
away” work days, that is, take a day off without using up leave
time by having another employee work in their stead, it altered,
without bargaining, a term and condition of the CNAs’ em-
ployment in violation of Section 8(a)(5) of the Act.38 Also, at
the Richland facility, the Respondents violated Section 8(a)(5)
of the Act when, unilaterally, they ceased their practice of pro-
viding to District 1199P seniority lists and work schedules.
The Respondents stopped sending seniority lists in December
1995, and no longer provided work schedules as of April 1996.

38 The pleadings and the credited testimony of Local 585 Represen-
tative Florence Stirbis establish that the Respondents acted without
notifying or bargaining with the Union, despite the contrary suggestion
contained in the testimony of the facility administrator, Daniel Landes.
At the William Penn facility, following expiration of the ser-
vice and maintenance employee contract on November 30,
1995, the Respondents continued to process grievances but
terminated the established practice of holding meetings be-
tween District 1199P representatives and the facility adminis-
trator at the second step of the procedure. In April 1996, the
facility canceled, unilaterally, its practice of allowing employ-
ees to dress casually for work on Fridays. I find that the Re-
spondents acted in violation of Section 8(a)(5) of the Act in
these regards. In May 1996, the Respondents, at William Penn,
failed to post for bidding a maintenance aide position before
hiring an individual to fill it from outside the bargaining unit.
In December, as earlier found, the facility strictly enforced
against employee Ruth Ann Pilarski its medical leave renewal
policy, for discriminatory reasons. In the former instance, the
evidence shows, the Respondents acted pursuant to an arguably
correct belief that the maintenance aide job was not a unit posi-
tion while, in the latter instance, the record evidence does not
establish that strict enforcement of the renewal policy was in-
tended as a new rule, with application beyond Pilarski’s case.
The Respondents did not violate Section 8(a)(5) of the Act in
these instances. I also find no violation of the Act regarding the
Respondents’ unilateral implementation at William Penn, in
March 1996, of a “safety bingo” program under which employ-
ees who chose to participate could compete for an unspecified
prize during accident-free weeks at the facility. Under the pro-
gram, two numbers were drawn each week in which no acci-
dent occurred and, to win, an employee needed to achieve
“bingo” before the occurrence of an accident, or the game was
reset. In my view, initiation of this program, which would
directly affect few employees and which offered the possibility,
only, to win an apparently insubstantial prize, did not materially
affect the terms and conditions of employment of the unit em-
ployees but merely added minimal incentive for them to ob-
serve safety precautions.39 Introduction of this program, with-
out bargaining, was not in contravention of statutory obliga-
tions.
In the fall of 1995, the Respondents reduced, unilaterally, the
working hours of the laundry and housekeeping department
employees, for a period of about 2 weeks, at the Lancaster fa-
cility. The action was taken due to a decline in the number of
residents at the home, and to avoid layoffs.40 By so acting,
without notice to, or consultation with, Local 668, the Respon-
dents violated Section 8(a)(5) of the Act. In December 1995,
without notifying or bargaining with the Union, the Respon-
dents changed from a punchcard system for employee time-
keeping to a system under which employees were required to
“swipe” their name badges through a machine which registered
their work arrival and departure times. Employees who ne-
glected to bring their badges with them were sent home to get
them. I find that the Respondents did not contravene their

39 See United Technologies Corp., supra.
40 During the term of the collective-bargaining agreement in effect at
Lancaster, until the end of 1994, the Respondents similarly reduced
employee hours, for temporary periods, due to a decline in the number
of residents. In those instances, the Respondents acted upon authority
granted to it by the contract’s management-rights provisions.
BEVERLY HEALTH & REHABILITATION SERVICES 1355
statutory bargaining obligations by this unilateral initiation of a
more modern method of obtaining employees’ time, in and out,
as the underlying rule, requiring employees to record their time,
was unchanged. This was not a “material, substantial and sig-
nificant change” from prior practice.41
Also at Lancaster, the credible record evidence establishes
that, for 5 or 6 years, until January 1996, the facility awarded
$25 to the individual designated by management officials as the
“employee of the month.”42 Without notice to Local 668, the
program was discontinued by the Respondents, unilaterally.
While in effect, both unit and nonunit employees were eligible
for the award. By its nature, the program, while existent, af-
fected only one employee each month, and not necessarily a
bargaining unit employee. The winning employee was chosen
based, entirely, upon subjective considerations. In my view,
payment to the winning person each month was more of a gift
than a term and condition of employment and the unilateral
discontinuance of the program was, thus, not violative of the
Act.
The credited testimony of employee Charles Williams shows
that, at Lancaster, unit employees were scheduled so as to allow
them regular days off, and each schedule covered a 2-week
period. In January 1996, the Respondents began to prepare and
post monthly schedules which afforded employees rotating
rather than standard days off.43 The new procedure lasted for
about 2 months. As the Respondents did not give notice to the
Union, or afford it an opportunity to bargain, before implement-
ing the scheduling change, they acted in violation of Section
8(a)(5) of the Act. Likewise, the Respondents violated that
Section of the Act when, in January 1996, they filled unit posi-
tions in the dietary department by hiring from outside the Lan-
caster facility a cook and an aide without first posting the posi-
tions, as required by the terms of the expired collective-
bargaining agreement.
At the Caledonia facility, the Respondents, in April 1996,
unilaterally ceased to follow the established practice of main-
taining a list of employees wishing to work overtime, and of
seeking to cover work hours left open due to “call offs” from
among the employees on that list, and from other volunteers,
before “mandating” employees to work overtime. Instead, the
Respondents instituted, without notice to, or bargaining with,
Local 668, a system under which employees were “mandated”
to work overtime on a rotating basis. Likewise, it is undisputed
that, at about the same time, the facility, at least for a temporary
period, unilaterally discontinued its established policy of grant-
ing the day off on holidays to the first employees who re-
quested it. Instead, the holidays for the year were divided into
two groups and employees signed up for, or were assigned to,
one of the groups for purposes of days off. On June 1, 1996,
the Respondents, at Caledonia, unilaterally instituted an atten-
dance policy. Previously, there had not been a policy concern-
ing attendance. In all of the foregoing respects, the Respon-

41 See Rust Craft Broadcasting of New York, Inc., supra. Cf. Judge
Wallace’s decision in the Beverly IV cases, supra.
42 The testimony of Ayers, the facility administrator, that the pro-
gram was in effect for a much shorter period, is not credited.
43 Zimmerman’s contrary testimony is not credited.
dents, at Caledonia, contravened their bargaining obligations, in
violation of Section 8(a)(5) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with their operations as de-
scribed in section I, above, have a close, intimate and substan-
tial relation to trade, traffic and commerce among the several
states and tend to leave to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair
labor practice conduct in violation of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that they be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. Due to the Respon-
dents’ wide-ranging and persistent misconduct, demonstrating a
general disregard for their employees’ statutory rights, a broad
order, prohibiting them from “in any other manner” infringing
on such rights, is warranted.44 For the reasons fully set forth by
Judge Wallace in his Supplemental Decision in the Beverly IV
cases,45 I conclude that the Respondents constitute a single
employer within the meaning of the Act and that a nationwide
order directed against Beverly nursing home operations is ap-
propriate. Further extraordinary remedies will not be granted.
CONCLUSIONS OF LAW
1. Beverly Health and Rehabilitation Services, Inc., its oper-
ating regional offices, wholly-owned subsidiaries and individ-
ual facilities and each of them, including its wholly-owned
subsidiary Beverly Enterprises–Pennsylvania, Inc., and its indi-
vidual facilities and each of them, constitute an employer en-
gaged in commerce, and in operations affecting commerce,
within the meaning of Section 2(2), (6), and (7) of the Act.
2. District 1199P, Service Employees International Union,
AFL–CIO,CLC, Service Employees International Union, Local
585, AFL–CIO, CLC and Pennsylvania Social Services Union
Local 668 a/w Service Employees International Union, AFL–
CIO, are labor organizations within the meaning of Section 2(5)
of the Act.
3. By threatening applicants that they would not be hired
unless they agreed in advance that, in the event of a strike, they
would cross the picket line; threatening employees with job loss
if they went on strike; threatening employees who participated
in the April 1 to 4, 1996 strike with a reduction in work hours;
informing employees that they would not be given full-time
hours because of their strike participation and that certain rules
of conduct applied only to them; informing employees that
union members were no longer permitted inside the facility
during their off-duty hours; denying normal facility access to
off-duty employees who were union members; engaging in
unlawful surveillance of employees’ protected activities and
directing employees to remove the prounion insignia they were

44 Hickmott Foods, Inc., 242 NLRB 1357 (1979).
45 JD–158–99 (Nov.30, 1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1356
wearing, the Respondents have engaged in unfair labor practice
conduct within the meaning of Section 8(a)(1) of the Act.
4. By discharging John Wilson, Tammy Rummel, Cathy
Bobby, Margaret Moore, Joyce Kircher, Sandra West, Susan
Chojnicki, Rose Girdany, Michelle Weaver, Ruth Ann Pilarski,
Jean Haver, Charles Williams, and Cheryl Danner; permanently
replacing Mary Myers; disciplining Josie Belice, Janet Criss-
man, Leatha Smith, Jeri Tagg, Susan Spiess, Antoinette Bain-
bridge, Ann Marie Daubert, Tina Brown, Shannon Flickinger,
and Samantha Yohe; reducing the work hours of Rickie Piper;
ceasing to accommodate the scheduling needs of Jeri Tagg;
refusing to accommodate the work place needs of Luann Riden
and failing to pay, for time lost due to investigatory suspension,
Amiee Miller and Sheila Oakes, the Respondents have engaged
in unfair labor practice conduct within the meaning of Section
8(a)(3) of the Act.
5. By conducting a poll and, then, withdrawing recognition
of Local 585 as bargaining representative of its service and
maintenance employees at the Grandview facility; ceasing to
make COPE deductions and remittances and to accept and
process grievances at that facility; withdrawing recognition of
District 1199P as bargaining representative of the LPNs at the
Mt. Lebanon facility; failing to comply with the Unions’ re-
quests for information relevant and necessary to proper per-
formance of their duties as the collective-bargaining representa-
tives and, in certain instances, failing adequately to respond to
proper requests for relevant information and by making unilat-
eral changes in the terms and conditions of employment of the
unit employees, denying notice and an opportunity to bargain to
their statutory representatives, the Respondents have engaged
in unfair labor practice conduct within the meaning of Section
8(a)(5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondents have not otherwise violated the Act, as
alleged in the consolidated complaints.
[Recommended Order omitted from publication.]