Charleston Nursing Center

National Labor Relations Board - Board Decisions

Aug 4, 1981

257 N.L.R.B. 554 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charleston Nursing Center and Local 15-A, Retail,
Wholesale, and Department Store Union, AFL-
CIO. Cases 11-CA-8753 and 11-CA-8843
August 4, 1981
DECISION AND ORDER
On September 30, 1980, Administrative Law
Judge Robert Cohn issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge only
to the extent consistent herewith and to adopt his
recommended Order, as modified herein.
Respondent has excepted, inter alia, to the Ad-
ministrative Law Judge's findings that Owner-Ad-
ministrator Connelly's refusal to meet with a group
of nurses aides on October 1, 1979, violated Sec-
tion 8(a)(1) of the National Labor Relations Act
and that the ensuing walkout of these nurses aides
was therefore an unfair labor practice strike. Con-
trary to the Administrative Law Judge and for the
reasons set forth below, we find that Respondent's
refusal to meet did not violate the Act and that
therefore the nurses aides were merely economic
strikers. Respondent has also excepted to the Ad-
ministrative Law Judge's finding that, even if the
employees were simply economic strikers, Re-
spondent's March 11, 1980, letter to all unreinstated
strikers threatened employees with waiver of their
rights to future employment in violation of Section
8(a)(1) of the Act. However, for the reasons set
forth below, we agree with the Administrative
Law Judge's finding that the March 11 letter vio-
lated Section 8(a)(1) of the Act.
I In adopting the Administrative Law Judge's Decision in this case.
Chairman Fanning and Member Jenkins do not rely on the Administra-
tive Law Judge's statements of opinion in fn. 2 as to the merits of the
settlement agreement urged by Respondent as a bar to this proceeding
These statements are unnecessary to their conclusion that it would not
effectuate the purposes of the Act to defer to this settlement agreement.
In reaching the conclusion not to defer to the settlement herein, Chair-
man Fanning does not rely on Roadway Express. Incorporated, 246 NLRB
174 (1979). Supplemental Decision 250 NLRB 393 (1980), enforcement
denied 647 F.2d 415 (4th Cir. 1981), cited by the Administrative Law
Judge Although Chairman Fanning dissented in Roadway Express. he
n(otes that. unlike the situation in Roadway Express, all parties did not
agree to the settlement i this case and the settlement herein was not e-
tered into pursuant to a binding grievance-arbitration procedure. Member
Zimmerman finds it unnecessary to determine w hether deferral to the set-
tlement agreement is appropriate i light of the disposition of the conm-
plaint issues relating. iter alia, to the alleged refusal of Respondent to
meet .ith a group of the nurses aides ad the nature of the strike which
follosed. Hoeser. he conclude, that the issue of whether Respondenits
letter of iquiry to unreilstated strikers violated Sec 8(;)(1) of the Act is,
i ay event properly before the Board because such iue sinolses con-
duct occurring after the settlementl aid thus ollside its scope
The Refusal to Meet
The Administrative Law Judge made the follow-
ing findings as to the events leading up to Re-
spondent's refusal to meet with the group of nurses
aides. During late September 1979, some of Re-
spondent's nurses aides became dissatisfied with
Respondent's failure to give them a pay raise
which the nurses had received and about the lack
of privacy in certain dressing rooms where there
were no curtains. A group of at least four nurses
aides met with Respondent's director of nursing,
Rose Wolfe, to complain about these problems;
however, Wolfe told the group that they would
have to talk to Respondent's new owner-adminis-
trator, James Connelly, about their complaints. On
Saturday, September 29, 1979, three nurses aides
went to Connelly's office and asked a secretary,
Emily Sanders, if they could meet with Connelly
the following Monday. Sanders said that she could
not set up such a meeting herself but she would
talk to Connelly and get back to them. The same
day, another nurses aide spoke to Connelly at the
nursing home and requested that he meet with the
nurses aides the following week. Connelly said he
would hold a meeting on either Tuesday, Wednes-
day, or Thursday. Connelly also received a tele-
phone call that day from a female employee who
asked for a meeting. Connelly told the caller that
he had to go out of town on Monday so the meet-
ing would be scheduled on Tuesday, Wednesday,
or Thursday. Connelly decided late on Saturday to
hold a meeting of all employees (not just nurses
aides) on Wednesday, October 3, 1979, since he
thought that was the shortest time in which all em-
ployees could be notified of the meeting. Director
of Nursing Wolfe posted a notice on the employee
timeclock about this meeting at 8:30 a.m. on
Monday, October 1, 1979.2
Over the weekend, a rumor had spread among
the nurses aides that Connelly would meet with the
nurses aides on Monday, October 1, 1979, if he
were present at the nursing home.3 Connelly was at
the nursing home on Monday, and at about 3 p.m.
a group of over 40 nurses aides went to Connelly's
office. 4 Connelly met the group at the door to his
office and asked what was happening. Several em-
ployees said they were there for a meeting with
him. Connelly replied that he had not called a
meeting for that day but a meeting of all employees
2 he shifts had alrcad l changed at 7 nm.. so nost enlploees ould
have been unat are of this notice until at least the 3 p m shift change
that day
' ie nlurses aides who had spoken to Sanders lilt Sturd~aN about all
appointment With Connell had minutakenl received this impresionl front
Sanders ;and started this rumor
' Respolndentl en loyd 53 llurses iides at tllis line
257 NLRB No. 66
554
CHARLESTON NURSING CENTER
had been scheduled for Wednesday and referred to
the notice on the timeclock. Several employees re-
sponded that they did not want to meet with all
the other employees on Wednesday, they wanted
to meet with him immediately. Connelly said he
was supposed to go out of town that afternoon and
asked them to come back Wednesday or else he
would meet with them individually right away.
Daisy Nesbit, a nurses aide who had done some of
the speaking for the group along with several other
employees, then shook her finger at Connelly and
said, "You white honky son-of-a-bitch, we will
meet right now or else." Connelly told Nesbit she
was fired for speaking to him that way. Several
employees said that was not right and at least one
employee said, "If she is fired then we are fired."
The group of employees then started walking
toward the timeclock, where most of them
punched out and demanded their paychecks. After
some argument, Connelly agreed to give them their
paychecks if they would leave the facility, which
they did. Connelly brought them their paychecks
in the parking lot.
By October 4, 1979, five of the striking nurses
aides had returned to work, and Respondent had
permanently replaced the rest of the striking em-
ployees. By a letter dated October 5 and received
by Respondent on October 8, 1979, all of the strik-
ing nurses aides requested reinstatement on the
basis of seniority. On October 11, 1979, Respond-
ent reinstated the four most senior striking nurses
aides, including Daisy Nesbit, as an indication of
good faith, despite the fact that their jobs were
filled by permanent replacements at the time. The
record reveals that by March 18, 1980, the date of
the hearing in this case, Respondent had offered re-
instatement to 23 additional strikers, 2 of whom re-
fused the opportunity to return to work; however,
there were 15 striking nurses aides who had not
been reinstated as of that date.
The Administrative Law Judge found that the
nurses aides were engaged in protected concerted
activity when they went to Connelly's office on
October 1, 1979; however, he also found that Re-
spondent did not discharge any of the nurses aides
in retaliation against their protected concerted ac-
tivity. Rather, the Administrative Law Judge found
that Connelly discharged Daisy Nesbit solely be-
cause she used an inflammatory expletive in speak-
ing to him 5 and that the other nurses aides walked
out to protest Connelly's refusal to meet with
them. As stated above, we do not agree with the
' No exception was filed to the recommendation of the Administrative
Law Judge that the complaint he dismissed insofar as it alleges that Nes-
bitt's discharge was unlawful. Member Jenkins adopts that finding pro
Jorma.
Administrative Law Judge's further finding that
Connelly's refusal to meet with the nurses aides as
a group violated Section 8(a)(1) of the Act.
While it is clear that Section 8(a)(l) prohibits an
employer from retaliating against employees for en-
gaging in protected concerted activities such as the
presentation of grievances, it is also clear that gen-
erally an employer is under no obligation to meet
with employees or entertain their grievances upon
request where there is no collective-bargaining
agreement with an exclusive bargaining representa-
tive requiring it to do so. Swearingen Aviation Cor-
poration, 227 NLRB 228, 236 (1976), enfd. in perti-
nent part 568 F.2d 458 (5th Cir. 1978). Further-
more, it is not illegal for an employer in such cir-
cumstances to refuse to deal with the employees
except on an individual basis. Pennypower Shopping
News, Inc., 244 NLRB 536, fn. 4 (1979). In this
case, Respondent did not absolutely refuse to meet
with the employees as a group, but merely refused
to meet with the employees as a group at that time
because of a prior commitment. Moreover, Connel-
ly suggested reasonable alternatives in refusing the
employees' request: he would either meet with the
employees as a group at a specific time 2 days later
or he would meet with some employees individual-
ly right then; however, the employees did not
agree to either alternative. Therefore, under all of
the circumstances of this case, we find that Re-
spondent did not violate Section 8(a)(1) of the Act
by refusing to meet with the nurses aides on Octo-
ber 1, 1979.
Inasmuch as we have found that Respondent did
not commit any unfair labor practices which
caused the walkout, we find that the nurses aides
were engaged in an economic strike rather than an
unfair labor practice strike. Accordingly, we shall
not require Respondent to offer immediate rein-
statement with full backpay to the strikers, all of
whom were permanently replaced.6
The Letter to Strikers
On March 11, 1980, Respondent sent the follow-
ing letter to all unreinstated strikers:
Are you still interested in employment at
Charleston Nursing Center as an Aide?
Please check on bottom of this letter and
return to me. Also, please send current phone
number.
hThe rights of econonlic strikers are governed b the Hoard's decision
in The Laidl/am Corporatiol. 171 NLRB 1366 (1968. enfd. 414 F.2d 99
(7th Cir. 1969). cert denied 397 S 920 (1970) There is no allegation in
this case that Respondent has failed to fulfill its obligalion, to the eco-
lnomic strikers under Laidlau
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enclosed is a self addressed and stamped enve-
lope.
Sincerely,
/s/ Rose Wolfe, R.N.
Director of Nursing
--- Yes, I am interested in employment
--- No, I am not interested in employment
------- Phone Number
If we do not receive a reply, we will assume
you are not interested.
The Administrative Law Judge found that this
letter violated Section 8(a)(1) of the Act, because it
did not indicate that the strikers were entitled to
immediate reinstatement as unfair labor practice
strikers. However, the Administrative Law Judge
further found that, even assuming the strike was
only an economic strike, the letter violated Section
8(a)(1) of the Act because it was not merely a rea-
sonable inquiry made by Respondent to update its
information on the current telephone numbers and
interest in reinstatement of the strikers but in addi-
tion implied that the strikers must affirmatively re-
spond to the letter in order to retain their rights to
reinstatement in the future. The Administrative
Law Judge concluded that in effect the letter was a
threat of waiver of the employees' rights to future
employment. We agree with the Administrative
Law Judge that the letter was a threat to cut off
the statutory reinstatement rights of economic
strikers, which violated Section 8(a)(1) of the Act.
It is clear that an employer may legally require
an economic striker to affirmatively respond to a
job offer or lose the right to reinstatement.7 Fur-
ther, the Board has indicated that an employer may
periodically ask economic strikers for updated in-
formation as to their current interest in reinstate-
ment. Thus, in Brooks, 8 where the Board held that
the employer could not unilaterally terminate the
reinstatement rights of economic strikers after 1
year, the Board noted that the employer had never
requested the strikers to take any affirmative action
to maintain their current status but stated further:
[W]e see no reason why the Respondent
cannot at reasonable intervals request the em-
ployees on the preferential hiring lists to notify
it whether they desire to maintain their recall
status. 9
The Board later noted that Brooks placed the
burden on the employer to initiate any such period-
ic requests for current information as to the em-
I Poultry Packers, Inc., 237 NLRB 250, 255 (1978); Brooks Research &
Manufacturing, Inc., 202 NLRB 634, 636 (1973).
sSupra, fn. 7.
9 202 NLRB 634 at 637.
ployees' interest in reinstatement and found that the
failure of economic strikers to renew their applica-
tions for reinstatement periodically did not consti-
tute a waiver of their reinstatement rights.'° How-
ever, the Board has not directly addressed the
question of whether an employer may legally ter-
minate an economic striker's reinstatement rights if
the striker fails to respond to the employer's re-
quest for updated information.
Under Laidlaw,H the employer has the duty to
seek out replaced economic strikers in order to
give them notice that a position has become availa-
ble, unless the employer can prove legitimate and
substantial business justification for terminating
their reinstatement rights. The Board does not re-
quire an employer to make periodic requests for
current information. Rather, any periodic requests
an employer may send to unreinstated strikers for
updated information are merely for its own admin-
istrative convenience. The employer still has the af-
firmative duty to notify replaced strikers of job va-
cancies as they occur and of any possibility that
their reinstatement rights may be terminated. While
the employer may be entitled to rely on any infor-
mation it does receive in response to such a period-
ic request, we do not see any legitimate and sub-
stantial business reason which would justify an em-
ployer in terminating an employee's reinstatement
rights merely because the employee failed to re-
spond to such a periodic request.
Any termination of reinstatement rights based on
a failure to respond to such a periodic request
would be premature inasmuch as no job vacancy
existed at the time of the request. Further, the
burden on the employer would be slight: it need
only maintain a nonresponding employee's name on
the preferential hiring list until he is offered rein-
statement and either refuses or fails to respond to
the job offer. The burden on the employee, howev-
er, is severe: termination of all reinstatement rights.
Even if the employer did not actually follow
through by terminating the employee's reinstate-
ment rights, the employee might be deterred from
inquiring about future openings. Therefore, we
conclude that, although an employer may legally
request replaced economic strikers to furnish cur-
'O Vitronic Division of Penn Corporation, 239 NLRB 45, 48 (1978), en-
forcement denied by an evenly divided court 630 F.2d 561 (8th Cir.
1979). In Penn Corporation, the Board held that economic strikers had not
waived their rights to preferential recall by signing a reinstatement re-
quest form containing an acknowledgment that they must renew their re-
quest for reinstatement in 6 months and by then failing to renew their
requests 6 months later. The Board noted that the employer had unilater-
ally included the acknowledgment in the form which it had required the
employees to sign in order to effectively request reinstatement and that
the employer never took any further action to notify the employees of
the necessity of renewing their applications.
'I Supra, fn. 6.
556
CHARLESTON NURSING CENTER
rent information about their interest in reinstate-
ment, an employer may not require replaced eco-
nomic strikers to respond to such a request or risk
losing their reinstatement rights. Accordingly, we
find that Respondent's letter of March 11, 1980,
violated Section 8(a)(l) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Charleston Nursing Center, Mt. Pleasant, South
Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Delete paragraphs l(a) and 2(a) and (b) and
reletter the remaining paragraphs accordingly.
2. Substitute the following for relettered para-
graph l(a):
"(a) Threatening employees with waiver or dis-
continuance of their reemployment rights unless
such employees reply to inquiries of Respondent."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten striking employees
with loss or waiver of their reemployment
rights if they fail to answer or reply to our let-
ters requesting information from them.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist any labor organi-
zation, to bargain collectively through repre-
sentatives of their own choosing, to engage in
other concerted activities for the purposes of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities.
CHARLESTON NURSING CENTER
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: Upon
charges duly filed on November 15, 1979, and January 7,
1980, by Local 15-A, Retail, Wholesale, and Department
Store Union, AFL-CIO (herein the Union), the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 11, issued his order con-
solidating cases and a consolidated complaint and notice
of hearing dated February 14, 1980, against Charleston
Nursing Center (herein the Company or the Respond-
ent). The principal issue involved is whether, on October
1, 1979, the Respondent violated Section 8(a)(1) of the
National Labor Relations Act, as amended (herein the
Act), by discharging certain of its employees for asser-
tedly engaging in concerted activities protected by Sec-
tion 7 of the Act. By its duly filed answer, the Respond-
ent admitted certain jurisdictional allegations of the com-
plaint but denied that it had engaged in any unfair labor
practices.'
At the hearing, which was held before me in Charles-
ton and North Charleston, South Carolina, on March 17-
19, 1980, all parties appeared and were afforded full op-
portunity to be heard, to produce, examine, and cross-ex-
amine the witnesses, and to introduce evidence material
and pertinent to the issues. 2 Following the close of the
hearing, posthearing briefs have been received from
counsel for the General Counsel and counsel for the Re-
spondent, which have been duly considered.
Upon the entire record in the case, including argu-
ments of counsel, and my observation of the demeanor of
the witnesses, I make the following:
'The Respondent also asserted, by way of affirmative defenses, that:
(1) the alleged concerted activities of the individuals involved were ren-
dered unprotected by failure to comply with the notice provisions of Sec.
8(g) of the Act: and (2) a certain settlement agreement entered into be-
tween the Respondent and the individuals following the October 1, 1979.
incident, constituted a bar to any proceedings before the National Labor
Relations Board.
2 At the hearing, the Respondent continued to vigorously urge that the
settlement agreement, previously referred to, should constitute a bar to
the further prosecution of the complaint herein Although I believed, and
continue to believe, that, as a practical matter, there is considerable merit
to the Respondent's argument due to the highly charged tensions which
arose in connection with the incident involved herein, the Respondent's
motion was denied. This was based primarily upon the factors that: (I)
neither the General Counsel nor the Charging Party herein were parties
to the settlement agreement, nor did they join or acquiesce in the Re-
spondent's motion: and (2) the settlement agreement did not purport to
resolve the statutory issue herein (see, e.g., Roadway Express Incorporated.
246 NLRB 174 (1979); see also Community Medical Services of Clearfield,
Inc.. d/b/la a Clear Haven Nursing Home, 236 NLRB 853 (1978)).
3 In evaluating the testimony of each witness. I have relied specifically
upon his (or her) demeanor; also, apart from considerations of demeanor,
I have taken into account other factors such as inconsistencies in testimo-
ny, conflicting evidence, inherent probabilities, and interest in the out-
come of the litigation. My failure to detail each of these is not to he
deemed a failure on my part to have fully considercd them Cf. irhop
and .Mar/,. ,nc, d/ha Walkers. 159 NLRB 1159. 1161 (1966)
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
THF. ALLEGED; UNFAIR I.ABOR PRACTICES
A. Background4
At all times material, the Respondent operated a nurs-
ing home in a suburb of Charleston, South Carolina. The
facility was composed of several wings, had 132 beds,
and approximately 120 employees of which 53 were
nurses aides.5
Near the end of September 1979, 6 some of the nurses
aides became dissatisfied with some of their working
conditions, which included failure to give them a pay
raise which the nurses had received, and the failure to
put up curtains in some of the dressing rooms at the
center resulting in lack of privacy. At least one meeting
was held among the nurses aides7 and Director of Nurs-
ing Rose Wolfe, in which these complaints were aired.
However, Wolfe did not respond favorably to the com-
plaints, particularly with respect to any wage increase.
She advised that the aides would have to take up that
subject with James Connelly, the owner-administrator of
the facility.8 Accordingly, some of the nurses aides de-
cided to attempt to set up a meeting with Connelly as
soon as possible and, on Saturday, September 29, a com-
mittee of nurses aides composed of Claudia Nesbitt, Wil-
helmenia Reid, and Blondeva Rippy went to Connelly's
office for that purpose. However, Connelly was not
there, and the group talked to an office secretary, Emily
Sanders. The group asked if they could meet with Con-
nelly the following Monday. Sanders replied that she
had no authority to set up such a meeting with Connelly,
but that she would be glad to talk with him about the
subject and "get back to them."9
Connelly testified that he was present at the facility on
Saturday, September 29, and had a conversation with
Anne Scott, a nurses aide, who requested a meeting with
him on behalf of the nurses aides the following week. He
responded that he was in agreement with the suggestion,
and told Scott that the meeting would be held either
Tuesday, Wednesday, or Thursday, and notice thereof
4 There is no issue in the case respecting the jurisdiction of the Board
nor of the status of the Union as a labor organization. The complaint al-
leges sufficient facts. which are admitted by answer. upon which I may.
and do hereby, find that at all times material the Respondent has been an
employer engaged in commerce within the meaning of Sec. 2(6) and (7)
of the Act, and that the Union is a labor organization within the meaing
of Sec. 2(5) of the Act.
I The other employees were primarily nurses, licensed practical nurses.
and office personnel. The primary duties of the nurses aides (who are the
focus of this litigation) were to care for the patients, which included
feeding them, cleaning up after them, etc.
" All dates hereinafter refer to the calendar year 1979. unless otherwise
indicated.
7 Some of the nurses aides who participated in these discussions were
Mary Lawrence, Ester McManus, Mary Middleton, and Marilyn Huff.
Connelly had only recently-in September-become the owner-ad-
ministrator, and was, at the end of September, in the process of moving
his family from his previous residence in Bennettsville., South Carolina, to
Charleston.
' Although the record is unclear on the point. the nurses aides present
at the interview with Sanders somehow received the impression that if
Connelly was present at the facility o Monday, he would meet with
them. Accordingly. that information traveled by word of mouth among
the nurses aides over the weekend,
would be posted on the timeclock. "' Connelly also stated
that on the same day he received an anonymous tele-
phone call from a woman who identified herself as an
employee, who asked for a meeting (apparently on behalf
of the nurses aides); that he replied affirmatively but
stated that he had to go out of town on Monday so that
the meeting would be scheduled on Tuesday, Wednes-
day, or Thursday. Connelly further testified that he
made the decision on that Saturday night to set up a
meeting among all employees for the following Wednes-
day since that was the earliest time which he considered
that on appropriate notice could be given to all employ-
ees. Accordingly, he advised Wolfe early the following
Monday morning to post a notice of such meeting on the
timeclock. Wolfe testified that she posted such notice
about 8:30 a.m. on Monday, October 1." However, there
is no evidence that the third-shift employees (who
worked from 11 p.m. Sunday, September 30, to 7 a.m
Monday, October I), nor the employees who worked the
7 a.m. to 3 p.m. shift on October 1., saw the notice.
B. The Confrontation on October I and its Aftermath
As previously noted, the word spread among the
nurses aides over the weekend that a meeting with
Owner-Administrator James Connelly was to be held at
the facility at 3 p.m. on Monday, October 1, assuming
Connelly was present at the facility that day. Since he
was present at the facility on the morning of October 1,
and was doubtless seen by the nurses aides at that time, it
might be reasonably inferred that this information was
conveyed by word of mouth, i.e., by telephone, to those
nurses aides who were not scheduled to work on that
day, or were scheduled to work on the second and third
shifts. 12 In any event, shortly before 3 p.m., a group of
nurses aides gathered on the parking lot outside the fa-
cility. The group was observed by director of nursing,
Rose Wolfe, who testified that she went to the kitchen
door which was adjacent to the parking area and asked
"What in the world is going on?" She did not receive an
answer except that, according to her testimony, Dolores
Barker, an LPN, stated that it was time that the girls had
a meeting, and that Barker was going to be their spokes-
man. 4 Wolfe then proceeded to the office area and asked
Nancy Ott, administrator trainee, if anyone had called a
meeting of which Wolfe was not aware. Ott replied that
no one had called a meeting that day. Whereupon Wolfe
advised Mrs. Connelly (who was an assistant to her hus-
band) that the latter should "get Jim, we've got prob-
lems." Mrs. Connelly immediately notified her husband
"' Testimony of Connelly Scott did not testify at the hearing
" According to Wolfe's testimony, the notice established a meeting at
2 p.m. the following Wednesday for the second- ad third-shift employ-
ces, and another meeting at 3 p.nm for the 7 a.m to 3 p.m shift
" The record is clear that no oe with managerial authority. or the
secretary. Emily Sanders, scheduled a meeting between Connelly ad the
nurses aides at 3 o'clock on Monday, October 1
':' These nurses aides were composed of those who were either iot
scheduled to work on that Moiidav, and had drisen to the facility in their
street clothes, or those nurses aides who had completed their work on
the firstl shift and were still i uniform
" Testimony of Wolfe Ba;rker did not testify at the hearing
558
CHARI.E:SON NURSING CINFR
who was having a telephone conversation in his office at
the time.
In the meanwhile, at approximately 3 p.m.. the nurses
aide. entered the flcilit and walked as a group down
the hall to the office area. When they reached Connelly's
office, he met them at the doorway to the hall. '" The
first words spoken were those of James Connelly who
asked. "What is going on. what is happening?"' Several in
the group responded that they were there for a meeting
with him. Connelly replied that he did not call a meeting
that day, but a meeting with all employees had been
scheduled for Wednesday, and referred them to the
notice on the timeclock. The response of the group to
that statement was that they did not want to meet with
all the other employees, that they wanted to meet with
him, ow. ' ( Connelly's response to that was that he had
to go-tha he was "already supposed to have gone
.... " He implored them to '... meet Wednesday,
come back Wednesday, or I will be glad Io meet wilh
you individually right now." 17
At that point, Daisy Nesbit, who was within a few feet
of Connelly, pointed her finger at him and said, "You
white honkey son-of-a-bitch, we will meet right now or
else," and shook her finger at him. Connelly, who wIas
apparently stunned at that remark, paused for a momnent
and said. "Lady. you can't talk to me that way in here.
you are fired, go punch out."'
The group responded to the firing of Nesbit with ex-
clamations such as "No, that is not right." or "No. that is
not fair." Also. one or more in the group said. "If she is
fired, we quit." or "f she is fired, then vse are fired."
Whereupon, the group turned around and started walk-
ing hack down the hall."'
Also presenl saith CoulncliU al ti% inlc x\cre Mr. ConilM,. Natis
Oil. ad Rose Woltfe Across the ha1111 Il her oflfice. v\ ith the dIor open.
',as the secreiary Emily Sa;nder,
t ie record reflect, tht there s as IO Iprilcullir kpokenilil t l the
group Ralh er it appears halt there socre ser ;l Illrts, idc, ticlr Itlle
front or the group lIto, had spread senicirculil aillOlld hCe elranulce t
Connelly's office), who were, apparently. responlding t) the statement
and quesllion of C nelly. I hl) ere (illorlia \elnitg. )ID lore, Barkel,
anid D)ais Nl.
'' steiinon of Coll ell
leItilioll of C'onnell Nesbit deltied the s1a1ettitt atlrihbiuled o
her. Ra;ther she testified that uhtrle Connerll finished speakig. sIthC raised
her hand a;nd said. Ma I ask a qestion, alnd that Corntiell likek I dl-
rectly at her and said. "Nio, Nou are fired " Iter ticslilln 1 ihm tthi rpect
is corrobohrated h Ie other nursec aides' \ hi \%ere present ll thIll' tilie'.
and hi) testified on1 hehalf of t lhe G erral (Oiii11c On ie Iother hilld.
Connelly's testimlln is corroboraled bh. Itie manlagcril and office per-
slnnlleI listed above ,tio %cre present at ile ccasiolt After g iig the
matter due consideratlion I credit the :erstil gien bh Cor(tiell i land the
Respoindent's witrieses I am utnable to beli\ee thal Nesbhit. iho im-
pressed me as beiig a militant ad sollmewhalt arrog;lant prsoui, ill he coll-
text Of till' situatioll. ulild mneckl aid polltily ise her hartid atld asked
perlissilon to) a sk questionl Nor do I hlice c it likel tIhat (orlltel] l-
though lie u;ls doubtless. upset ad perhaps aIigr) i thlle ciiplhit'l\ ' il-
tempt ipose a meeting utipon him a a tilile khn Ih e did It l ih oi,
uotuld ha;lXe dischea rged ine olf their nulnhber nlcrel) hea us ,he I % islih
tl ask a quetion
aI);is Neshil iestit'ie d tit; afte;r ItIC of h11 e % 1111ll11ll lie gloup)
stalated that it %i il ot right" that Neshit he fire. Ctrmiclis id. '"You all
are fired. gel Oiit Again. her testinlin} ili till, regard i oliltrited \
the iother employees tho \ctre presentl al lha tilile, and sll' I tstified i (i
behalf of tile ieneral ('oUlsel (Ciitel' denied ialt i riiido tle satile-
ment attributed to hill, or tHliit ill 'il r.tll II 1'IItl\ . ihc lii [ )al 1 ,
Nesbit \i , fireld ti ll ili' i11C i111 tti Ii, t' linioir\ til l rgard I'. i g;ill.
corrohbralcl h lho Illailnlati.rlsl' ill Iflli pr'l, Il ail ', htr tei'lt'd i1
D)aisy Nesbil testified that at the end of the confronta-
tion with Connelly she demanded her paycheck. Also.
after the group of employees proceeded back through
the facility to the timeclock to punch out," some of the
other employees demanded their paychecks. Connelly
first took the position that he had, under the law, 48
hours to write the employees a check. However, the
group of nurses aides did not greet that suggestion favor-
ably. and became quite vociferous in demanding their
money. Whereupon, Conrinelly told them if that they
would leave the facility he would get their checks.
Whereupon, the group of nurses aides gathered in the
parking lot and Connelly after receiving the timecards,
directed Mrs. Connelly aid Nancy Ott to start writing
the checks. They did so, hurriedly, deducting only FICA
but not Federal and State income taxes from the checks.
After Mrs. Connelly and Nancy Ott made out a handful
of checks. Connelly would hand-deliver them to the
nurses aides in the parking lot, making approximately
five trips hack and forth.
C. Te Gun Incident
When Connelly reached the parking lot with a handful
of checks, as aforesaid, he would call out the names of
the employees as they appeared on the checks. Not being
familiar ith the employees because of his recent con-
nectio with the Respondent, and because of poor hand-
writing. Connelly mispronounced some of the names.
Also, because of the rush ill the preparation of the
checks, somec of the amounts were not accurate. This led
to furlther boisterousncess arid catcalls by the nurses aides,
and the situationl became more fraught with tension.
Afcr ahoul thie second or third trip to the parking lot,
CoMnclly. accrcliillng to his testimony, was pushed down
behalf ll,I lt Respilpdenlt Alter tlut adil full conlsideralion. I credil the
dentials i adihltiot to drnealor. I ha.t tiaiken into contsideralion the fl-
Ihm xing: I) );laisy Nesbit ,.as the onlI cnlplo:ce st ho received lwo pay-
checks o llne ldicatg paymenl for hours uorked and the other ldicat-
iug payIre flg r accumulated ick lease ad/or acaion paye i s k l (2) he les-
limor) of )Doroth Connell who. a fes ilillltcs later. told a laid Cien-
ix .a Hav, oid, in response o the latter's questillon f shether she had
beel fired. "No. yu are nol fired. iohod) has been fired" (ofr clrse. It
is rcglized atd ad mitled that Daisy Nesbit had been discharged. but
such tatertetut stitids i corroboration f C'oinelly's leslimony hat ie
did rnot fire am!'l'oe otier thaln Neshit): (3) the subsequent statement h>
the ullirses aide Oll th' signed. Illlconditiilal request for reitlslalemeitl il
shicth Ite statcmenl was made that such employees requested reinstate-
inlent " to our jtobs wshich e left as a protest oser working condi-
till " ((i C' t'xh 2) and (41 thc subsequent rport f he plicre officer
thlat d v lho stlted that D)ilore, Barker aised hinm of the follhsing
eqliieice" Oie f' the employees (Dais\ Neshil) sent il to see Jhn
('iilnells inl referncite to prohblem, ol the joh ad rqueslted a neecting
Johnll Cornnelly then tld her that shit wa, fired A this time approxinmate-
I tI f Iclle olih i c .plli ces (ullrses aide,) walked off ad gathered Ill
the parking lot" t'l repor recited hiat it as later. sthile in the parking
lot. halt ('onell ifisrmaled them that ''the re' all fired
()t' \ tu1nl uippose thila i. ill fact. Coniellll uinereid the discharge lal-
gluage lattlrhblutl to him hb Nesbit a;td others of the group while in the
h ,it lT). I) lliitlllll Ielr(ir .111l JI it.c appeari i Ihe d(cunlenlts re-
.lrrl I ill ();I )d I41 ah) Ace.'din)gl,. basucd iit all of the foregoing.
I (11 1tl il l , II t 1 Irt'll illl I llt ' tI lln (ssr' fr 11i (i;eneratl (C'ul Csel i1
tills rgard
-' .\p ,trulil%. Iiliin it fhLr grlup i11 t'111l ,0'tc pttllched tit alilhouglh
il(lrill \'cIiitI C Ii ' sithi' l \lt x.lii S';1n "i1iit p)li ig )11 hbciulse [she]
lll'l 1pl'll1, 11h il"
59g
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by an unidentified person, from behind.21 Apparently this
incident put Connelly in fear, and he ran to his auto-
mobile which was parked in the parking lot and re-
trieved his pistol from the car. He waved it back and
forth above his head in a manner that everyone could see
it, and said that anyone who came closer would have to
answer to the gun.22 Connelly then grabbed his 9-year-
old son who was watching the activities while sitting on
a parked automobile, and shoved him back into the facili-
ty. Apparently the appearance of the firearm on that oc-
casion quieted the group of employees since he delivered
the balance of the checks to them on the parking lot,
without the firearm, without incident.
Shortly thereafter, the local police appeared on the
scene. 23 By the time the police arrived, the tension on
the parking lot had apparently dissipated to a great
extent. At the request of many of the nurses aides, the
police officer asked Connelly if he would rewrite the
checks which, as previously set forth, were in error.
Connelly agreed to do so, and the checks were subse-
quently mailed to the employees. Meanwhile, volunteers
were secured by the officials of the Respondent to assist
with the care of the patients. Subsequently, vwithin the
next several days (and before any request for reinstate-
ment was made on behalf of the nurses aides), the Re-
spondent filled the job of the nurses aides with perma-
nent replacements.
Also within the next several days, efforts were made
to resolve the labor dispute through intervention of rep-
resentatives of the South Carolina Department of I.abor
and the Charleston Ministerial Association. These efforts
resulted in a letter being drafted by the ministers on Oc-
tober 5, addressed to Connelly, signed by 45 of the
nurses aides, as follows:
Dear Mr. Connelly:
Please be advised that we, the undersigned em-
ployees request reinstatement to our jobs which we
left as a protest over working conditions. We un-
conditionally request reinstatement in that our con-
cern, like yours, is on behalf of the patients and
tranquil labor conditions in the Charleston area.
We further request reinstatement on the basis of
seniority, and we look forward to working in a co-
operative spirit with you.
The letter was delivered to Connelly on ()ctober 8,
and several of the nurses aides, including Daisy Nesbit.
21 Coilnelly's teslilllto V ill his respect is no eorr(ohmralt. hN ais l ther
person wh()o was on Ilie parking lot l the time lloc' er,1 Connelly flI
ther testified that lie scraped his halid in breaking his ll al shliosx:ed it
to his ife and others inside tIh facilil)
== Creditel tesiiloll)n, f Claudia Nesbitt and CheryI S\xilntoni COlnllel,
testified that he said, "'lease donl't conle alln closer I Ioll't .anlt t hll
anybody I don'll t wa1 l iot o anbo dy." LUnder the pairticulal- cuicuil
stanclles existing at the time I doubt if Conlllel used ihe l, otd "pleasc." I
find that Connelly did not point the gun at anll palliculal persli (Stc.
e.g, tesimony of Mary Lasvrence, a witness r Ihe (iellneal (lonliscl)
2a The police were sumnllonlcd by ai call front Nalicx ()tt i ithe disc-
ionl of Conielly. 'Therer as lso exidelce ill tIC eeC rl iit oleor 111o1-C
of the nurses alides well across the street it a lire dleplltnlll ad it i,
probable that a call to the police departmenlt a. s liadle Ioill Ihat111 ulce
also.
were reinstated on October II, as an indication of good
faith on the part of the Respondent. 24
The parties stipulated that as of March 18, 1980, 26 of
the nurses aides named in the complaint had been re-
called to work.
D. The A4lleged Threatening Letter
On March 11, 1980, the Respondent sent all unreinstat-
ed employees the following letter:
Are you still interested in employment at
Charleston Nursing Center as an Aide?
Please check on bottom of this letter and return
to me. Also, please send current phone number.
Enclosed is a self addressed and stamped enve-
lope.
Sincerely,
/s/ Rose Wolfe, R.N.
Director of Nurses
Yes, I am interested in employment
No, I am not interested in employment
Phone number
If we do not receive a reply, we will assume you
are not interested.
It is the contention of the General Counsel that the
nurses aides who were allegedly discharged or concer-
tedly ceased work on October 1, retained their status as
the Respondent's employees. It is his further contention
that tile purpose and effect of the above-quoted letter
w.as to threaten the employees that, if they did not reply
to the letter, they would, in effect, be considered as
having waived their right to reemployment in the future.
It is the contentionl of the Respondent that the letter did
not constitute a threat but was merely a reasonable in-
quiry made by the Respondent to update addresses and
telephone numbers so that the Respondent would know
how to get in touch with that person at the time a posi-
tion became open. This legal issue will be discussed,
ntufu.
D. Analysis and Concluding Findings
1. The concerted activities
It is, of course, elemental and unrefuted that the dis-
cussions had among several of the nurses aides during
the last week in September, respecting their working
cotnditions at the Respondent's facility, constituted con-
certed activities protected by Section 7 of the Act. They
coneyed their complaints first to director of nursing,
Rose Wolfe, and then, receiving no satisfaction, sought
to arrange a meeting with owner-administrator, James
Connelly. While there is no evidence that anyone with
managerial authority arranged a meeting between Con-
nelly and the nurses aides to take place at 3 p.m. on
Monday. October 1, it is apparent that several of the
nurses aides understood that if Connelly were present at
See (i' F xEh 4
560
CHARLESTON NURSING CENTER5
the facility at that time, he would meet with them. This
understanding was spread by word of mouth among the
nurses aides over the weekend so that a majority of them
appeared at the facility shortly prior to that time for the
purpose of airing their complaints as a group with him at
the appointed time. Thus, it is clear that the concerted
activity which commenced the previous week continued
up to and including the confrontation with Connelly in
the hallway at the facility at 3 p.m. on Monday, October
1.
As noted, the evidence does not show that Connelly
was aware that the nurses aides desired a meeting with
him at that time, and he was visibly upset when they
became insistent that he meet with them. lte sought to
excuse his refusal to meet with them on the grounds that:
(1) a meeting with all employees had been scheduled for
the following Wednesday, and (2) he "should have been
gone" out of town at that time. Nevertheless, as he ap-
parently sensed the mounting tension and anxiety of the
nurses aides, he suggested that he would meet with them
individually. 25
This adamant refusal by Connelly to meet with the
nurses aides as a group at that time apparently provoked
the inflammatory expletive of Daisy Nesbit. The lan-
guage she utilized clearly provoked Connelly to termi-
nate her, and I find that that conduct was the motivating
reason behind her discharge and not because she had en-
gaged in concerted activities.2" Accordingly, I will rec-
ommend that the complaint as to Daisy L. Nesbit, be dis-
missed.
Although I have found that there is insubstantial evi-
dence to prove that Connelly thereafter terminated all of
the nurses aides present at the confrontation that day. it
is clear that immediately subsequent to the discharge of
Daisy Nesbit, the other nurses aides concertedly ceased
work in protest. The question then arises as to the moti-
vating cause of their conduct in this regard. The evi-
dence shows that it was the discharge of Nesbit which
clearly triggered their action; however, in the particular
circumstances of this case, I view the motivating reason
for their work stoppage to be Connelly's admitted refusal
to meet with them as a group. This conduct was clearly
an unfair labor practice, 27 and set in motion the ensuing
events. Had Daisy Nesbit's remarks not been so inflam-
matory and provocative, she may not have been dis-
charged and the whole subsequent sequence of events
might have been different. Although this is a matter of
conjecture, it is not conjecture that it was the Respond-
2s As Connelly testified, "I said that we are going to talk about it on
Wednesday: or I would talk to them indisidually. I thought hal that
covered it."
26 I note that he did not terminate any of the other nurses aides who
were doing some of the talking on behalf of the group in he hall that
day, such as Gloria Venning.
2 It is well settled that an employer may not refuse to discuss \agc,.
hours, or working conditions with a group of its employees in falor of
meeting with them individually since such conduct is antithetical to con-
certed activity protected b Sec. 7 of the Act. Nor des it make a differ-
ence that the time chosen by the employees might be inconverlielt t 11h
employer since ill judgment or lack of consideration do not cot, er1 such
otherwise legal conduct to illegality or immunize the employer rom a
finding of unfair labor practice (see. e.g.. LR. R Solo Cup Comprany.
237 F.2d 521, 526 (8th Cir. 1956): Magnla Viunal, 213 NRI 162. 167
(1974), and cases cited).
ent's unfair labor practice which set in motion the cir-
curnstances which resulted in the concerted walkout of
the employees. `
Further confirmation that the reason for the concerted
acti\ ities of the nurses aides was in protest over working
conditions as distinguished from the termination of Daisy
Nesbit is found in the introductory paragraph of their
October 5 letter to Connelly, quoted above. According-
ly, I find such walkout or strike to be causally related to
the unfair labor practices of the Respondent, and there-
fore to he an unfair labor practice strike rather than an
economic one. 2
It is noted that Connelly's reason for refusal to meet
with the nurses aides as a group as distinguished from
meeting with them individually was because. as he testi-
fied: "I had already determined, at least determined in
my mind that that wasn't a group, that was a mob." I
find that there was insubstantial overt or objective evi-
dence regarding the conduct of the nurses aides at that
point in time to justify Connelly's characterization of the
group. Nor did he request that they appoint several of
their number as a committee to meet with him at that
time or later." Finally, I do not believe that Connelly's
offer to meet with all employees, including the nurses
aides. the following Wednesday was an adequate substi-
tute or justification for his refusal to meet with them on
Monday. Certainly they viewed their grievances as dis-
tinct from those of the nurses. Indeed, their principal
complaint w;as that they did not receive a wage increase
when the nurses received theirs.
2. The gun incident
The complaint, as amended at the hearing, alleges that
the Respondent violated Section 8(a)(l) of the Act by
Connelly's threat "to shoot employees because said em-
ployees engaged it) protected concerted activity." Clear-
ly, acts of violence or threats of violence engaged in by
agents of an employer directed to employees who are en-
gaging in activities protected by Section 7 of the Act,
which may be said to have a purpose of interfering with,
restrainling, or coercing employees for so engaging in the
exercise of such rights, constitute a violation of Section
I vies the siluation ill the instant case to be sinmilar to that in Dobbs
Ilus,. Inc.. 15 NIRB 885, 888 (1962). eforcement denied 325 F2d
531 (5th Cir 163). where the Board found a salkouit to he "caused" hb
an accnmulalion of griesances although "triggered" bh the discharge of a
supervisor rilhe court found that there was not substantial evidence to
support hc 1Boiard's finidings in that case.
" It is rcogilized that the complaint herein does not specificalls allege
Connelll's r fusal to meet sith the group as an independent unfair labor
practice lthough it is alleged. alternatively, that the above-described
condulct o the part of the Respondent on October I converted the strike
of employeecs to an unlllfair labor practice strike. In all eent. the matter is
a rialtrial issue s hlich s,;i full litigated at te hearing and therefore
ma! pros ide a inmple hasis for the findings and conclusions herein,
shliclir or not iI as specifically pleaded (see, eg, 4mrerican Roiler
Manuiflacturilng .4cocritton .. L.R.B.. 366 2d 815 XI 21 I th Cir 166).
and cases cited theretll)
' (Cf .\ ..R.B C,,ndcnr r Corporationi al o,,4merica. 128 2d 67. 77
(1042). where the Clurl of Appeals for the hird Circuit stated: "Em-
ployees calnbo isisl that their demands be met in the middle of a wkork-
ing da;. henll the employver has promised to dea;l kith Ithem a a group alt
tiC endI iof tlc tin " ( :nlphallis, supplied I
561
DECISIONS OF NAII()NAL LABO()R RE.AII()NS BO)ARI)
8(a)(1) of the Act. The issue here is whether the conduct
of Connelly on this occasion falls within such test.
I have found that the situation on the parking lot of
the Respondent's facility on the afternoon of October I
was fraught with tension and potential violence. The em-
ployees were, at that time, displeased and enraged be-
cause of Connelly's refusal to meet with them, coupled
with his discharge of one of their number. His mispro-
nouncing of their names further enraged them, and re-
sulted in taunting and catcalls. Finally, I have found that
he was pushed down behind by an unidentified employ-
ee. This conduct clearly placed Connelly in fear of
bodily harm, and resulted in his decision to secure his
firearm, which he did. Substantial evidence shows that
upon securing of the pistol, he held it in the air and
waived it back and forth so that everyone present could
see it, and stated that anyone who came closer to him
would have to answer to the gun.
I conclude and find that the foregoing sequence of
events does not constitute substantial evidence that Con-
nelly threatened to shoot employees for their engage-
ment in activities protected by Section 7 of the Act.
Rather, I find his conduct on this occasion to be a re-
sponse or reaction to the boisterous and threatening con-
duct of the group which reasonably placed him in fear of
bodily harm. I note the absence of any other statements
or conduct on his part which could be construed as a
threat of interference, restraint, or coercion with the em-
ployees' Section 7 rights. Under all circumstances, I shall
therefore recommend that this allegation of the com-
plaint be dismissed. 3 '
3. The alleged threatening letter
The complaint, as amended at the hearing, alleges that
the Respondent violated Section 8(a)(1) of the Act
through the sending of the March 11, 1980, letter, quoted
above, to all unreinstated employees, in that the letter
threatened such employees with loss of jobs because they
engaged in protected concerted activities.
Of course, the letter was premised upon the assump-
tion that employees were engaged in an economic strike.
However, I have found that the strike was caused by the
Respondent's unfair labor practices, and therefore was,
and continued to be, an unfair labor practice strike.
Therefore, the employees were entitled to their jobs
upon the unconditional request therefore on October 5.
But assuming the strike to have been economic in char-
acter, I would agree with the contentions of counsel for
the General Counsel that the Respondent's March 11,
1980, letter violated Section 8(a)(1) of the Act. Thus, it
exceeded a legitimate inquiry by an employer as to the
current address, telephone number, and interest of the
employee in employment with the Respondent. It is set-
tled law that an economic striker remains an employee of
the employer at least until he has secured other desirable
employment, and is under no obligation to reaffirm such
status at regular intervals. Accordingly, I agree that the
March II letter constituted, in effect, a threat of waiver
:" Sec, e.g.. Comtoo G(raphi , ln.. 217 NRB 1 6lbl. I()hh (1975, C(abot
Corporation and Payv and KeAllr of Lotiiao,. Itr . 223 NRH I 3XX.
1341 (1976).
of the employee's right to future employment in viola-
tion of Section 8(;1a)( I) of the Act. : 2
4. The Respondent's 8(g) defense
In its answer to the complaint, the Respondent alleges
that the concerted action of the nurses aides was in vio-
lation of the notice provisions of Section 8(g) of the Act,
so as to make such actions unprotected. I do not agree
with such contentions.
Section 8(g) of the Act requires that a labor organiza-
tion, before engaging in any strike, picketing, or other
concerted refusal to work at any health care institution,
shall, not less than 10 days prior to such action, notify
the institution in writing and the Federal Mediation and
Conciliation Service of that intention. In a recent case,"3
the Board held that Section 8(g) does not apply to a
work stoppage at a health care institution in which no
labor organization is involved. Accordingly, this defense
of the Respondent is without merit."'
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCI.USIONS O: LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By failing and refusing to meet with its employees
as a group on October 1, 1979, to discuss complaints and
grievances concerning their working conditions, the Re-
spondent violated Section 8(a)(l) of the Act.
4. By threatening its employees with waiver of their
reemployment rights if they did not respond to the ques-
tions posed in the Respondent's March 11, 1980, letter,
the Respondent has engaged in, and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The work stoppage or strike engaged in by certain
of the Respondent's employees commencing October I,
1979, was caused by the unlawful conduct of the Re-
spondent described in paragraph 3, above, and is there-
fore an unfair labor practice strike.
6. The aforesaid unfair labor practices have a close, in-
timate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Tif RMIti)
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
See O(reo Si Club-llden Iua//I. I,, 217 NRB 4118 (1'175) crfd.
II part 542 F.2d 18 (61h Cir 1"7h6)
' H 'l/ er iMetho/dist Ridc e ld eahlth (Core Ceter, 1,. 227 N.RB
16h31 177)
I he light of the oard's driion ill the iteld C .e t I d n1t reach
I r ihe r lice provilioll oIf Sec (ig) uld
appl here the ,ork loppag i caudl hb Ihe mplooyer. un fair Iahor
prictic c (C f C raresl. 1/, . 246 N I R 871) (1 )79)
562
CtlARI ESFtN NRSIN CNTF'R
Having found that the work stoppage or strike corn-
menced on October 1. 1979. was an unfair labor practice
strike from its inception because of the Respondent's un-
lawful refusal to meet ith the group of its employees, it
will be recommended that the Respondent offer to those
strikers immediate and full reinstatement to their former
jobs, or, if those jobs no longer exist, to substantially
equivalent positions. without prejudice to their seniority
or other rights and privileges, dismissing, if necessary.
persons hired on or after October 1. 1979. The Respond-
ent shall make such strikers whole for any loss of earn-
ings they may have suffered as a result of the Respond-
ent's refusal to reinstate them in a timely fashion by
paying to each of them a sum of money equal to that
which she would have earned as wages after the date of
such unconditional offer to return to work : ' to the date
of the Respondent's offer of reinstatement, less any net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
( 977). :"
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDER:7
The Respondent. Charleston Nursing Center, Mt.
Pleasant. South Carolina, its officers, agents. successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to meet with groups of its emplovees for
the purpose of discussing complaints or grievances con-
cerning their wages hours, or working conditions.
(b) Threatening employees on strike with aiver or
discontinuance of their employee status unless such em-
ployees reply to inquiries of the Respondent.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join. or assist
any labor organizatioti. to bargain collectively through
representatives of their own choosing, to engage in other
concerted activities for the purpose of collective hargain-
I Il e foulid thalt Ite xrrikerx. Iaile an unicon ditional offer i retlil
to \%ork hriiough their letter Io Cornell., dated (October 5. hi ch li r-
ccix cd oll ()ctobehr
See, generall I Phimbn, & Iteuting C,. Itis N R t I h (162)
I 1n the e\cnl nio excceptnls ;ire iled a pro ided h Sec 12 46 of
the Rules alld Regulatii, 1of the Na;ltioil Lahor Reliltin l Itloard, the
Finldinig. conclusionll, ad recinllnnl tlicd I )rtler ltetill 11all a, pr lded
in Sec 102 48 of the Rules and Regtltaion.ll. he litci h\ h l H l:il Ilnd
hecome i findilig. concluIItin. a:ld ()rder alnd all ohlecilon Illereto
hliall he enied . o ai ed tir ill pillint.
ing or other mutual aid or protection, or to refrain from
any and all such actiities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) LUpon application,. and to the extent that it has not
alread' done so, the Respondent shall reinstate the unfair
labor practice strikers and make them whole for any loss
of earniings that they may have incurred. in the mannier
set forth in the section of this Decision entitled "The
Remedy."' i:
(b) Preserve and, upon request, make available to the
Bloard or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary and relevant to analyze and compute the amount
of backpay due under the terms of this recommended
()Order.
(c) Post at its Mt. Pleasant, South Carolina, facility,
copies of the attached notice marked "Appendix. " '9
Copies of said notice. o forms provided by the Regional
Director for Region II, after being duly signed by the
Respondent's authorized representative, shall be posted
hy the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken b the Respondent to ensure that
said notices are not altered. defaced, or covered by any
other material.
(d) Notify the Regional Director for Region II, in
xv riting. ithin 20 days from the (late of this Order, what
steps have been tlken to comply herewith.
I IS 1t R I iR RI)I RI) that the complaint be, and it
hereby is. dismissxcd as to alleged violations of the Act
not fontid i this D)ccision.
A \s et lh laho. Ih strikers made art ueonditiolnal applicati on
lc reillntatetenltl h ltter dalted ()ctober 5 The Repondent rejected n-
tllediate reillttatetlleltl \xcepl tor lfour of thell sincre it had hired pernra-
Ilit replacenlit l prior to tIheir offer Iox cer. since it has been found
tiat te stlike xa a unfair labor practice strike. the RespiorLIdeit als
ohligated to reialetit thentm uipoi their uncondiltinllal applicatlon thterelfor
diiiSSillg. It' iTieccni\. ile teplacenilt Silce ttie Responldent rejected
tie llilColsitle ilal tflcr tIo retuin to xxork. no 5-da, period wkill be pro-
xided pir to the conlnltlecenieltl of the runnling t11 hackpay. See .'--
por -w Shllpbuhlldidtngy & Dri 1cA (pulny. 23h NLRB 1637, Ih38
(I1978 ( ./ ..tr,, ( rJcrx ,irai ,n 25l NI Rtl 751 119801
*I1i the cxcili rilit Ihli Order i ienforcedi bh a Juigment oIf a Ilniled
States (tinlr of Appeal. the \.ords i hti notice reading "'osted h,
()ide tl te Nailtllal I alhil Rlion, Boiard" i all read "P',lted I'lrsu-
/lilt t l t1lgl i Of tlt l t'lliltcd StalIs Ciort of Appetalls t llforcillg ;il
()lidtrt I thll NititwliIl I dll r Reaitio, llot, rd '
563