Fairlawn ChateauDownload PDFNational Labor Relations Board - Board DecisionsOct 23, 1975221 N.L.R.B. 81 (N.L.R.B. 1975) Copy Citation FAIRLAWN CHATEAU & W. & D. ENTERPRISES Akron Convalescent Care, Inc. d/b/a Fairlawn Cha- teau and W. & D. Enterprises, Inc. and Retail Clerks International Association , Local No. 698, AFL-CIO. Cases 8-CA-8894 and 8-RC-9750 October 23, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 26, 1975, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended,Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Akron Convales- cent Care, Inc. d/b/a Fairlawn Chateau and W. & D. Enterprises, Inc., Akron, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on January 23, 1975, by Retail Clerks International Association, Local No. 698, AFL-CIO, referred to herein as the Charging Party or the Union, the General Counsel, by the Regional Director for Region 8 (Cleveland, Ohio), issued a complaint and notice of hearing on March 13, 1975, and an order consolidating cases and notice of consolidated hearing on April 9, 1975. The complaint, as amended at the hearing, alleges in substance that Akron Convalescent Care, Inc., d/b/a Fairlawn Chateau, and W. & D. Enterprises, Inc., herein referred to respectively as Fairlawn Chateau and W. & D. and jointly as the Respondent, interfered with, restrained, and coerced employees in the exercise -of the rights guaranteed in Section 7 of the National Labor Relations Act, by interrogating and threatening employees, creating the impression of surveillance of the union activities of its employees, impliedly promising benefits to employees who 221 NLRB No. 25 81 refrained from or abandoned membership and interest in the Union, and announcing and granting a wage increase in order to undermine and discourage support of the Union; discriminated with regard to the hire and tenure of employment of employees by discharging Lauretta Kirby and Virginia Secreto, and thereafter failing and refusing to reinstate them, because of their union activities; and thereby engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. The Respondent, in its answer duly filed, as amended at the hearing, admits some of the factual allegations of the complaint, but denies that it has committed the alleged unfair labor practices. Pursuant to due notice, a hearing was held before me at Cleveland, Ohio, on April 16 and 17, 1975. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Subsequent to the hearing, on or about May 19, 1975, the General Counsel filed a brief, and the Respondent filed a brief and proposed findings of fact and conclusions of law, which have been fully considered. Upon the entire record in this proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Fairlawn Chateau is now, and has been at all times material herein, an Ohio corporation with its principal place of business located in Akron, Ohio, where it is engaged in the proprietary operation of a nursing home. Annually, in the course and conduct of its business operations, it derives gross revenues in excess of $100,000 from the operation of the nursing home, and receives, from enterprises located within the State of Ohio, medical supplies valued in excess of $12,000 which supplies were received by said enterprises directly from States other than the State of Ohio. W. & D. is, and has been at all times material herein, an Ohio corporation with its principal office located in Canton, Ohio. It is engaged in furnishing housekeeping, dietary, and maintenance services to nursing homes located in various cities in Ohio, including Fairlawn Chateau. W. & D. commenced operation as a business entity on or about September 10, 1974. During a 6-week period following commencement of its business operations, it provided services exceeding $30,000 to employers, such as Fairlawn Chateau, which receive gross annual revenues in excess of $100,000 from the operation of nursing homes, and purchase and receive supplies which originated outside the State of Ohio in excess of $12,000 from suppliers located within the State of Ohio, and each of which is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the foregoing, it may reasonably be anticipated that, during the 12-month period from September 10, 1974, to September 10, 1975, W. & D. will derive gross revenues in excess of $300,000 from services furnished to nursing homes, including Fairlawn Chateau. Further, for the 6-week period in question, W. & D. received foods and other supplies valued in excess of 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $5,000 from points located directly outside the State of Ohio. On,or about September 10, 1974, Fairlawn Chateau and W. & D. entered into a service agreement providing that W. & D. shall be the sole and exclusive contractor to perform all dietary, housekeeping, laundry, and mainte- nance services for Fairlawn Chateau, which by the terms of said agreement and/or by arrangement, maintains control over the working conditions and tenure of employees of W. & D. employed at Fairlawn Chateau. The parties at the hearing stipulated, and the complaint and answer were amended accordingly, that Fairlawn Chateau and W. & D. constitute a joint employer of the employees at the nursing home herein involved solely within the meaning and scope of the Act and for the purposes of this proceeding. Accordingly, I find,, as the amended complaint alleges and the Respondent's amended answer admits, that the. Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, as the complaint alleges and the parties at the hearing stipulated, that Retail Clerks International Associ- ation, Local No. 698, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The parties agreed that the following individuals occu- pied the positions set forth, were agents and acted in behalf of either Fairlawn Chateau or W. & D., and were supervisors within the meaning of Section 2(11) of the Act: Dorothy V. Kern - administrator, Fairlawn Chateau Patsy R. Cady - director of nursing, Fairlawn Chateau Regina Stripe - charge nurse, Fairlawn Chateau Mary Ann Rhoades - charge nurse, Fairlawn Chateau Harold E. Zimmerman - supervisor of maintenance, laundry, dietary, housekeeping, W. & D. The complaint includes in this allegation Mimi Smith, Assistant Housekeeping Supervisor, W. & D., whose statutory supervisory status is denied by the Respondent. The complaint also alleges, and the Respondent's answer denies, that Linda Becosky, from about March 1974 until about January 15, 1975, occupied the position of charge nurse,' Fairlawn Chateau, and was an agent of the Respondent and a supervisor within the meaning of the Act. The complaint also alleges, while the Respondent denies, that, in order to discourage union membership and activities, the Respondent discharged Kirby on December 5, 1974, and Secreto on January 12, 1975; that Cady and/or Kern on various dates about October 1974 I Moore requested maternity leave in November 1974. Her request was denied on the ground she had been employed less than 6 months , but Cady interrogated and threatened employees and impliedly promised benefits to employees; that Smith made threats on or about November 28, 1974; and that a few days before the Board election, which was held on January 17, 1975, the Respondent announced and granted a wage increase to the employees. In issue in the representation case, and consolidated with the complaint case for hearing, ruling, and decision by the Administrative Law Judge, are the ballots of Kirby and Secreto, who were challenged by the Respondent on the ground they were no longer employees, and the ballot of Smith, who was challenged by the Union on the ground she was a supervisor. B. Organization of the Union In about September 1974; - a clipping of a newspaper article about union organizing activities in the area was placed by an unidentified individual in the schedule book at the nursing home. At or about that time, Delma Moore, a nurses aide , called the Union to get some information,' The organizing director, Hennigin, sent Moore some cards, and she , and other employees solicited signatures. In addition, union organizers solicited membership near the Respondent's premises as employees were leaving at the end of their shifts, and distributed handbills at one of the entrances. At a union meeting, Hennigin spoke of the benefits of union organization and gave the approximately six employees present union literature and buttons. He told them they could wear the buttons or wait until a majority had signed cards. Additional buttons were distributed at later meetings. Employees began wearing them at work in about early October. C. Interference, Restraint, and Coercion 1. The October 10 meeting in Cady's office Mary Berdyck, an aide on the 7 a.m. to 3:30 p.m. shift, testified that she signed a union card at Moore's request and attended two meetings in October 1974, and that she received a union button at one of the meetings but, as she kept losing it, put it in her pocket whereas Moore and some other named employees wore buttons openly. Berdyck testified that she and a few other employees were called to Cady's office early in the afternoon on or about October 10; that Cady "started right in on us that she didn't know how the Union business got started . . . but she under- stood who all was wearing the union buttons and she knew who all was signing up for the union and we had our choice, either the union or out the door we go ... that she had better not see us picketing as she drove up in her car. ... it was ' our choice and we would lose our job ... kept repeating that more than once, a couple of times . . . that she had a crew lined up to take out places ... to go ahead to our union meetings . . . and she would know who all would be there . . . that she might attend herself." Berdyck also testified that Cady asked if the girls present wished to make any comment, and that only two responded and both said they would have nothing to do with the Union. Berdyck also testified that she could not recall any told her she could come back at any time. She was in an advanced stage of pregnancy at the time of the hearing. FAIRLAWN CHATEAU & W. & D,_ ENTERPRISES 83 discussion about raises at the meeting in Cady's office, but that she and several other employees were in the break room one day when Cady came in, she asked Cady why some girls employed only a few months were earning more than she was after 2 - 1/2 years, and Cady said "she had no control over raises . . . we had kicked her there in the teeth and we missed _ our timing about wearing union buttons." Berdyck was notified later of a meeting on the evening of October 10 but did not attend. 2. The October 10 evening meeting The Respondent operates three shifts, 7 a.m. to 3:30 p.m., 3 p.m. to 11:30 p.m., and 11 p.m. to 7:30 a.m. During the 30-minute overlap, those coming in check with their counterparts on the outgoing shift on matters related to the work and patient care. The Respondent occasionally held in-service meetings, usually at or about 2:30 p.m., at which employees were instructed on nursing home procedures or discussed various problems pertaining to the work. Employees were paid for the time spent at such meetings. In addition, employees were free to discuss work or personal problems with Cady or Kern in their offices. Some employees had raised questions with Cady at a meeting in September 1974 about wage increases which they felt were promised but had not been received, and Cady said she would take this up with Kern, who was in charge of the nursing home's financial operations. Cady called an in=service meeting on the evening of October 10. Moore, who, was on the 3 p.m. to 11:30 p.m. shift at this time, testified that, when she arrived at work at or about 2:30 p.m., Cady's daughter, Lisa, who worked at the home, said Cady had called a meeting for that evening to discuss employee grievances about the home or about other employees; that Lisa had telephoned some employ- ees,about the meeting, and asked her to call others as Lisa was leaving to go home; and that she called about 14 employees.2 The meeting was held in one of the lounge areas at about 7:30 p.m., lasted about an hour, and was attended by about 15 employees and also, at Cady's request, by Kern. Moore testified that there was a very brief discussion about grievances, but most of the discussion was about the Union; that, in the course of this meeting, Cady asked the employees what their grievances were, why they wanted a union, and why they had not come to her instead of going behind the backs of management and organizing the Union; that when Secreto stated some of the benefits she believed the Union would bring about, Cady asked if all or a majority agreed, and "we said yes"; that Patience O'Neil, a nurses aide, asked Cady "what would happen to those who didn't want to join the union or who wanted to stay with the home," and Cady answered that they would be well taken care of by the home; that O'Neil then asked if "the union people" could tell her what she would get out of the Union, and Secreto answered she would not have to work so hard, would earn more money, and there would be improved employment benefits; 3 that Cady asked why Moore had not yet spoken and commented, "From what I heard, you are one of the main supporters of the union. I even hear that you threatened some people into joining"; that Moore replied she had not threatened anyone, but explained the benefits and urged employees to join; that Cady also asked why Moore was in favor of the Union, and she replied for "more money, because we were at that time underpaid, and a better paid vacation, a better hospitalization plan than we had at that time"; that when the subject of a wage increase was brought up, Cady stated that she had almost convinced Kern to give them a raise but they had worn. their buttons a few-days too soon so Kern forgot about raises; that Cady also stated that she had considered the aides part of the nursing profession but nurses do not have unions and, if the Union did come in, she would not consider them as persons, only as timecards; and that Cady also said her door and Kern's had 'always been open for employees to come in and discuss any problems they had but, if the Union came in, there would be no more favors, and "the home would be run strictly by the book." Moore also testified that Kern said any employee who was not satisfied could resign, and she would gladly accept the resignation; and when questions about finances were referred to Kern, she stated that the home was paid $15 a day for welfare patients, whose care cost $18 to $20 a day, and the difference had to be made up from private patients; unless Governor Rhodes was elected the home would be hard-pressed for money; and, if the Union did come in, it might be necessary to close down part of the second floor, where the welfare patients were, or to lay off some of the girls. Moore testified further that, prior to this meeting, some employees had discussed the possibility of a walkout if the wage increase promised them was 'further delayed, that Cady and Kern had apparently heard of this, and that one of them brought the matter up and said the home had'backup personnel waiting for jobs on each shift and "if any girl didn't come in, she might as well come in and pick up her paycheck and forget about her job." Moore testified that, at the conclusion of the meeting, Cady asked to talk to her privately; in this conversation Cady 'asked her to remove her union button while they were talking, and she took it off and put it in her pocket; Cady said, she thought they were friends and, if Moore needed more money, Moore could have asked and Cady would have tried to work something out; and Cady said she had seen Moore come in late a number of times and never said anything about it but, "if the union comes in, then, I will have to go strictly by the book . . . The first time that you come in late, it's a warning. The second time you come in, its a write-up. The third time, you are fired." Moore testified that Cady also asked if she were going to the union meeting that was scheduled for the next day, that she answered she had not yet made up her mind but might, and that Cady asked her, if she did attend, "would I-please keep in mind what had been said and what she had also said to me' and then she hoped that I would come over to their side ... Because I was a conscientious worker and she would hate to lose me." Finally, Moore testified, Cady asked her about other union supporters and she said she could not answer, Cady asked if she could not or would not 2 Lisa Cady was not called as a witness. 3 O'Neil was not called as a witness. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and she said she preferred not to, and Cady then said "okay" and Moore left. Secreto, who was at home asleep when the call came about the October 10 meeting, got up and went to the meeting. She testified that at the meeting Cady said she was disappointed that they even considered bringing a union in to settle grievances as they had always come to her with problems; Cady said she talked to Kern about the raise that had been discussed at the September meeting and Kern had approved it, but they wore their union buttons a few days too early; Kern said they might have to close the second floor and reduce the staff if the Union were brought in; when O'Neil asked about those who did not join the Union, Cady replied they would be well taken .care of; and Cady also said if the Union came in she would not consider them her people but only timecards, there would be no personal favors, rules would be enforced, and they would be docked if a minute late. Secreto did not recall any discussion about a walkout, but testified she might have missed some remarks when she was talking to someone. Sharon Jandecka was employed as a nurses aide in 1972- 73, and again in 1974,on the day shift, 7 a.m. to 3:30 p.m., until she left on December 29. When Moore solicited her signature on a union card, Jandecka said she was in favor of a union, but would not' sign a card and attended no union meetings. She did, however, wear a union button at work. Jandecka, was off on October 10 but, when Moore called about the meeting, said she would try to and did attend. Jandecka testified that Cady asked at this meeting why the girls wanted a union; either Moore or Secreto gave reasons why they did; when an employee asked about her job if she signed or did not sign a card, Cady answered that they would not have their jobs if they signed the cards; Cady also said that their privileges would not then be the same but they would be docked for being late coming to work or returning from a break, that relations would be not friendly but business-like, that raises would not "come to us that quick," and that she had mentioned raises to Kern but ,they wore their Union buttons too soon and would not get the raises; and Kern told them about the financial problems of welfare patients paying only $15 a day, and said that if the girls did not want to show up for work she could always find replacements, and that if she had to she would close down the second floor and lay off many of the girls. 3. The testimony of the Respondent's witnesses Kern has been the administrator of the nursing home here involved since it opened 3 years ago, and owner with her husband of other homes at various locations in Ohio. She testified4 that Cady told her of the October 10 meeting to be held because some girls had problems; Cady said she could take care of nursing matters but asked Kern to attend to take care of "anything about a raise or the financial situation"; and Kern did attend the meeting which lasted about an hour. She testified that at the 4 All the witnesses were sequestered on motion of the General Counsel. Kern was the only witness who was present when others testified. meeting various employee complaints were voiced, but none about Secreto or any other individual; 5 the Union was discussed but "I don't think it was at the start of the meeting"; "The question of money came up on a raise. The Union was brought into the meeting and Mrs. Cady conducted most of the meeting"; the Union was brought up by O'Neil asking how the Union could benefit her; the employees' "consensus of opinion - they would all get more money, more off days, and things of this nature"; Cady, when asked about the Union, "stipulated that if there was, we would have to live up to a contract and would abide by it"; and Cady also said "she didn't feel that a union was going to benefit nursing or patient'care, and she is very conscientious about patient care . . . If they decided on a union, she would, as I said, live up to the contract and really not feel they were in the nursing profession per se." With regard to her own participation in the meeting, Kern testified that she could not comment on the Union, but that she did comment on the financial situation with regard to a raise in pay, and explained that the cost of caring for the welfare patients on the second floor was greater than the amount received. On cross-examination by the General Counsel, Kern testified that Cady said at the meeting if the Union came in she would abide by a contract; she did not know if Cady said a contract would mean new rules; she did not think Cady brought up anything about a friendly relationship; and as to a question of saying the aides would be treated like timecards, "Whether that was the exact wording, I don't know. It was something to that effect that they would not be as individual with personal problems as they have been . . . and I think it was her knowledge through a contract it wasn't going to be the personal grievances coming through. It would have to go through a union." Kern also testified that she did not remember if Cady said anything about personal favors, but that "it was a close relationship with the girls, we'll say." Kern also testified, on cross-examination, that Cady at this meeting asked the employees what their problems were but that she did not recall that Cady asked the employees why they thought they needed a union, then that "I can't recall, as I said, whether she said it or whether I said it," then further as follows: Q. Do you recall telling the Board agent [in a pretrial statement ] that Mrs. Cady may have asked the employees why they thought they needed a union? A. I just answered, yes. Q. I don't believe you have. Did you tell that to the Board agent? A. I don't recall. Q. Do you recall whether or not Mrs. Cady stated at that meeting that there were entire shifts of L.P.N.'s and nurses aides who were begging for jobs at Fairlawn Chateau? 5 Employee complaints about Secreto were alleged as a ground for her discharge FAIRLAWN CHATEAU & W. & D_ ENTERPRISES A. I don't know whether she made that . The only thing I can say from my own knowledge is that I do know we have a good number of applications. Q. Do you recall telling the Board agent that Mrs. Cady said that there were lots of nurses and aides begging for jobs at the same wages and benefits? A. She may have. Patsy Cady has been the director of nursing at Fairlawn Chateau for about 3 years, responsible for the nursing staff and patient care , and has had many years of experience in such work . She testified that the R .N.'s are supervisors in charge of floors, the L .P.N.'s work under them, and the aides assist the nurses. Cady also testified that she learned of the Union in late September or early October when a nurse , probably Rhoades , called her one night at or about 11:30 and reported that organizers were on the parking lot; the nurse called again in about 10 minutes to report they had left; in the meantime she called Dr. Kern in Canton , Ohio; her daughter Lisa, who was reporting for work on the night shift for the first time , was frightened when two women organizers approached as she was entering the plant and insisted on talking to her; Rhoades told her later that Lisa was afraid to talk to her on the telephone because of the girls, including Secreto and Moore , who were "hovering around her"; and she later complained to Henmgin about this incident that frightened her daughter. Cady also testified that employee meetings are usually held at 2 : 30 to 3 : 30 p.m. but may be held at other times, and that she keeps records of these meetings . No such records were placed in evidence as to the October 10 meeting . Cady testified that this meeting was held as a result of four employees , including Berdyck and Lisa Cady, asking for a meeting about employee problems; such problems come up frequently and meetings were some- times held about them ; that she was busy but offered to come in in the evening to have a meeting , and all but one, who was not named, agreed ; she told the girls when she announced the meeting that it was short notice but the meeting was "because of the dissension we were having at the time"; the meeting , started about 7:30 and , as usual, lasted about an hour ; and she did not have her notes on the meeting with her . Asked to state what occurred at the meeting, she answered that "we discussed the problems that the girls presented to me around noon that day. We talked about whose responsibility it was to do what and what shift was to do what. We pretty much - I thought at the time - got it straightened out. Then somebody - and I don't know who - brought up the union . That was discussed.... That was brought up after ... the original part of the meeting." She testified that this was brought up when she was asked what she thought about a union, and answered that she did not feel there was any place for a union in a nursing home. She then testified that the only other thing discussed was that employees , said they wanted more money ; she said she did not know they had any grievances other than the request in September for a raise; she had, as she promised at a September meeting, raised this matter with the administration as it'was up to Kern; she did not tell them what Kern said but that Kern explained that "we didn't have all that much money, and 85 that we had quite a few state patients"; and, after Kern's explanation, many of the girls said they could understand. She testified further that she asked the employees how they felt about the Union, and the employees expressed their opinions , but she could not recall what any of them said; one girl asked what a union would do for her, and another answered that she would not have to work so hard; "I did say if a union came in, we would go strictly by the union rules . . . that I felt I had been lenient with them and that I would like to continue to be lenient, but we would have to go by rules and regulations"; and she said she had a list of people who had applied for jobs at the same wages and benefits. Cady denied that she questioned Moore at the meeting any more than she did other employees, but admitted that she did, at the meeting or another time, tell Moore the girls were after Lisa constantly to sign a card. She testified that Lisa had told her the girls in question were Moore and Secreto. Cady answered in the negative questions whether she or Kern said that employees would not have their jobs if they signed a union card; if the Union came in wages would not be increased ; the wage increase would have been granted but certain employees wore their buttons too soon; the second floor would be closed down if the Union came in; she had no time for the Union; or that people who did not join the Union would be well taken care of. Charles Jackson, an orderly, admittedly had a very vague recollection of what occurred at the October 10 meeting, but testified that he did recall that Kern and Cady asked why employees who were dissatisfied did not find another job, and that either Cady or Kern said nurses should not wear Union buttons. 4. Other conduct of Cady and Kern Dorothy McGee , a nurses aide from about May to November 1974, became a union member and took part in the organizing activity. She testified that in late September or early October she saw both Cady and Kern on the parking lot; they said they were watching to see that the union organizers did not come on the lot; Cady asked if she were going to the union meeting and, when she said she had not received any notice of it, Cady said there was to be one; and she said she might attend. She did attend, obtained a button, and wore it the next day. She testified that Cady said it did not look right to wear union buttons, but that she replied the girls were told to do so to bring the union activity out in the open. McGee also testified that Cady had promised a wage increase before the union activity began; that when it was not received, she and another employee went to Cady's office about nud-October to ask about it, and were told it would be on the next paycheck; when it was not, they again asked Cady why; Cady "said it was because we had poor timing and that we wore our union buttons, and that it was out of the question, more or less"; and when some employees threatened not to make it to work next day, Cady said they would "make ' it or be fired." She also testified that on another occasion several employees were called to the office and told by Cady that her daughter Lisa "had been frightened by the union people and that she had had trouble with them in the past and she didn't want the 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union in there . . . if we did get the union in, it would be rough on us ... we had to knuckle down and behave ourselves," and that McGee, who had been permitted regularly to come late because she could not arrive on time from another job, would have to arrive "on the dot . . . or be docked or fired." Moore testified that in late October she went to the office to see Cady, that Kern was there and spoke of the costs of operating the home and said, "This is another reason why I can't afford to give you girls a raise and why I can't have the union . . . I will do anything to keep the union from getting in here," and that she replied that "I just had problems of my own and I had bills to pay too and I needed more money." Berdyck testified that she was notified of a meeting on January-16, 1975; the day before the election, at which Kern would speak; that Kern was not at the meeting but Cady was; and that Cady "told us that she wanted 100 percent voting and it was our choice again to do what we wanted to do, either vote for or against ... she chose to work there 'and she hoped that we chose to work there, too." Kern testified that she never interrogated any employ- ees; she "`really didn't'talk to them about union" in the parking lot; she never called an employee to the office and talked about the union; she did not recall any employee coming to the office to talk about the Union; she never talked in private to any employee about the Union, and "I really don't recall speaking to anybody because I wasn't that concerned.", And Cady testified that she never questioned employees about the Union in the parking lot, never threatened employees about union activity, and never had meetings with employees in her office about the Union. 5. Concluding findings All the witnesses who testified for the General Counsel were sequestered on motion of the General Counsel. The General Counsel's witnesses , some of whom had left the Respondent 's employ voluntarily so had no direct interest in the outcome of this proceeding, presented their testimony in a candid 'and forthright manner, and I found their testimony consistent,' mutually corroborative, and believable. On the other hand, I found Cady and Kern vague and unconvincing witnesses , and their testimony contains many evasions, inconsistencies , and contradic- tions . And Jackson admitted he could recall very little about the meeting he attended on the evening of October 10. Moreover, the Respondent' s witnesses corroborated in several instances the testimony of the -General' Counsel's witnesses . On the basis, therefore, of demeanor and the entire record , I find Berdyck, Moore, Secreto, Jandecka, and McGee credible witnesses, and credit their testimony where it is in conflict with that of Cady and Kern as to the conduct in question. Accordingly, on the basis of the credited testimony and the record as a whole , I find that Cady interrogated McGee on the parking lot in late September or early October about 6 Forbes Pavthon Nursing Home, Inc., 198 NLRB 802 (1972); Dragoo Electric Co., Inc., 214 NLRB No. 120 (1974); Shorewood Manor Nursing her intention to attend a Union meeting that day, and that Cady told McGee and another employee in the office that a promised wage increase would not be forthcoming because of the wearing of Union buttons. I find further that Cady called some employees to her office on the afternoon of October 10, ' and that she called an employee meeting on the evening of October 10, attended by Kern at Cady's request, which was assertedly called to discuss employee complaints but dealt principally with the employees' union activities. I find that at these meetings and in conversations during this period with employees, Cady and/or Kern coercively interrogated employees about their union activities and their reasons for organizing the Union, statedthat a wage increase would be withheld because of the employees' wearing of union buttons, created the impression of surveillance of employees' union activities, and threatened that, if the Union were success- ful, there would be more rigid enforcement of work rules, loss of other benefits, and layoffs of employees. I fmd that such interrogation and threats were designed to compel employees to abandon their union membership and activities, and that the Respondent by such conduct interfered with, restrained, and coerced its employees in the exercise of their Section 7'rights, in violation of Section 8(a)(1) of the Act .6 D. The Wage Increase The Respondent posted the following notice signed by both Kern and her husband on January 10, 1975: MEMO TO ALL FULL TIME EMPLOYEES WITH 90-DAY EMPLOYMENT GOVERNOR RHODES PAY INCREASE As promised by Management 'early last Fall, if Governor Rhodes were elected, management would increase all salaries of our employees . Effective January 15, 1975 a general increase of 10 cents per hour will be given to all Professional , Aides and Orderlies. W & D Enterprises has agreed to increase all their employees at the same time by 10 cents per hour. The Board election was held on January 17, 1975. The Respondent's announcement of a general wage increase was made on January 10, 1 week before the election, and the increase became effective on January 15, 2 days before the election . I find, in all the relevant circumstances, particularly in the absence of evidence of any legitimate economic reason for the timing of this wage increase, that it was announced and granted in order to demonstrate to the employees that employment benefits were forthcoming from the Respondent-Employer without the intercession of Home, 217 NLRB No. 55 (1975); Penasquitos Village, Inc, 217 NLRB No. 155 (1975); Cosmo Graphics, Inc., 217-NLRB No. 178 (1975). FAIRLAWN CHATEAU & W. & D. ENTERPRISES a union representative , and to influence the employees to reject the Union in the election.? E. Mimi Smith's Status8 Secreto testified that she saw a notice posted about mid- November 1974 that Zimmerman would be the supervisor of housekeeping, laundry, and dietary employees, and that Smith would be the supervisor in his absence, but that employees were to take any problems to Kern or Cady. Secreto also testified that when she congratulated Smith on being made a supervisor, Smith thanked her. Secreto, who admitted she did not know what Smith's regular duties were, was a union election observer and challenged Smith's ballot on the ground Smith was a supervisor. Frances Branch testified that she was hired by Roberts, who had been in charge of housekeeping; about 2 weeks after Roberts left in November, Zimmerman called a meeting and announced he was the supervisor and Smith his assistant who would take over in his absence; Zimmerman was there only 3 days a week and Smith was in charge the rest of the time, but Zimmerman had the key to the supply room and Cady had it when he was absent; Smith prepared and posted work schedules, recorded the hours worked by employees, and decided the locations where employees would work; when she called in to report off one day, the nurse referred the call to Smith, who heard her reasons and said it was all right, and Smith made out and signed a report of this absence, but she was off other days without talking to Smith; Smith once told her she had been too long in the break room, and she went back to work; Smith wrote her up when she had not cleaned a bathroom; other employees told her of this so she looked in the drawer where such reports were kept and found four, some for staying too long in the break room; and that no supervisor ever spoke to her about them. Branch testified that she quit on December 28, 1974. The General Counsel placed in evidence an employee warning notice dated January 1, 1975, stating that Branch was "Terminated - Did not report for work for six days," signed by Smith. Jandecka testified that after Roberts left, Smith told her that she was the assistant supervisor in charge of hiring and discharging "until they had gotten somebody else," that Smith said her duties included being "in charge of the time cards and making sure that the girls did their job," that Smith trained new girls in the work but had done this before she claimed to be a supervisor, and that Smith said in about November 1974 she had to terminate an employee named Frances for not doing the work right. Jandecka admitted that Smith was the only one who told her Smith was a supervisor, and that she never observed Smith performing supervisory duties. Berdyck testified that a notice posted after Roberts left stated that Smith would be supervising in housekeeping; and that Smith later told Berdyck that she was appointed housekeeping supervisor under Zimmerman, was to assign jobs to the girls and see that they did their work, and could talk to Zimmerman about hiring employees. Smith asked 9 NLRB. v. Exchange Parts Company, 375 U.S. 405 (1964); Styletek, Division of Pandel-Bradfor4 Inc., 214 NLRB No. 90 (1974); American National Stores, Inc., 195 NLRB 127 (1972). 8 Smith was not called as a witness. 87 Berdyck to recommend friends who might want ajob, and Berdyck recommended a woman who was hired but was not there long. Berdyck admitted, on cross-examination by the Respondent, that she did not know of Smith discharg- ing any employee. Kirby testified that Smith was a supervisor but admitted, on cross-examination by the Respondent, that she testified in the representation case that Zimmerman was her immediate supervisor, and that she had tried to sign Smith up in the Union. Harold Zimmerman, who has been the W. & D. supervisor of housekeeping operations at Fairlawn Cha- teau since September 10, 1974, and performs similar functions at other nursing homes, is at this home 3 days a week. He testified that there are seven employees in the department, that Smith was paid the minimum wage of $2 an hour as were other employees, that he handles all supervisory functions in the department but Smith, as the senior employee; can issue, but cannot order, supplies in his absence. Asked if he mentioned Smith at the meeting he held with the employees, and if a notice was posted about his or Smith's position, he answered each question "Not to my knowledge, no." He also testified that he has asked girls to write up other girls, that this happened once when he asked Smith to write up a girl, and that he always signed his own warnings, but there is in evidence a warning notice to Branch signed by Smith. I found Zimmerman generally a reluctant and uncon- vincing witness. Nevertheless, as to Smith's status, I find that the evidence shows only that Smith was held out, at a meeting of housekeeping employees or in a notice, as Zimmerman's assistant, and that she told employees she was a supervisor. Employees in the housekeeping depart- ment, however, apparently considered that Zimmerman was their actual supervisor, and that in his absence problems were to be referred to Cady or Kern. Smith was paid the minimum wage. As the senior employee she trained new employees, but she did this before she became Zimmerman's assistant. Moreover, it appears that any authority Smith exercised was at the direction of Zimmer- man, that it was routine or clerical in nature, or that she acted merely as a conduit for Zimmerman's instructions. I find that Smith did not possess or exercise supervisory authority requiring the use of independent judgment, and that she was not a supervisor within the meaning of the Act .9 F. The Discharge of Kirby Kirby was hired to do housekeeping work on about August 1, 1974. She testified that she was trained by Smith but worked under the supervision of Roberts, and that while some housekeeping employees worked a 6 a.m. to 3:30 p.m. shift, she was put on an 8 a.m. to 4:30 p.m. shift, and told Roberts this was the best possible shift for her because of her five children. Kirby also testified that, when she was hired, Roberts told her to get 'a physical examination and a TB test, and she did so; no question was 9 See Salant Corporation, d/b/a Carnzo Mfg. Co, Inc., 214 NLRB No 21 (1974); Imperial Bedding Company, 216 NLRB No. 160 (1975); Victor M. Sprys d/b/a Eastern Industries, 217 NLRB No. 118 (1975). 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever raised about her doctor's certificate, which is in evidence, being undated; she paid $25 to the doctor for her examination, and a receipt from the doctor dated Septem- ber 13, 1974, is in evidence; and Zimmerman never mentioned a physical test to her. Kirby testified, without contradiction, that Roberts was satisfied with her work and gave her a 10-cent raise the first week.-She also testified that, after she was transferred to the laundry, Smith twice complimented her on her laundry work, and that no one ever complained to her about her work. Jandecka testified that she at times observed the work done by Kirby and other housekeeping employees, and that "Kirby did a good job." Kirby signed a union card on about September 27, and attended all the union meetings. Some employees in this department wore union, buttons occasionally, but she wore one every day for about a month, when she lost it. She also passed out union cards and signed up about five employ- ees. She gave a card to Smith, who never returned it. At a later date Smith questioned Kirby about the Union, but Kirby refused to discuss it because Smith had not sent in her card. Kirby was a witness for the Union on November 29 in the representation case. Roberts left her job on about November 1. Zimmerman came in as supervisor about 2 weeks later. After Zimmer- man took over, he posted a schedule calling for Kirby, who had been previously transferred to the laundry, to work on the night shift. Kirby testified that she told him this was impossible because of her children; that he said he would work on it over the weekend, she should take Monday off, and the schedule would be changed on Tuesday; she found the schedule was the same on Tuesday; as Zimmerman had suggested she call Kern, who made the schedule, she did so and, when Kern confirmed making the schedule, said she would try to make arrangements to work at night; she made such arrangements and worked thereafter on the night shift; both Kern and Zimmerman told her the girls would rotate on that shift, but she was the only one who worked on that shift until December 5, a Thursday, when Zimmerman handed her the following termination notice: As of 12-05-74 Lauretta Kirby is terminated from employment in the Housekeeping Dept. at Fairlawn Chateau, 200 Wyant Road, Akron, Ohio. Her work has been unsatisfactory constantly, she would not co-operate with her superiors in matters of working required shifts, and not working in the capacity for which she was hired. H.E. Zimmerman Housekeeping Supervisor Zimmerman testified that he discharged Kirby in "December sometime," that she had been in housekeeping but did not perform her work there properly; he saw her once use the same rag on furniture as she had used to clean a bathroom, he spoke to her about it, and she said she would not do it again; he saw "it wasn't working out in the housekeeping, so I transferred her into laundry," and he showed her how to do that work, but she did not follow his orders in that she mixed colored and white clothes in the laundry machine; and that "These are the main reasons" for her discharge. Asked on cross-examination by the General Counsel if Smith ever told him Kirby was doing a good job in the laundry, he answered "Not to my knowledge." Zimmerman testified that he wrote Kirby up for her inadequate cleaning work but did not recall if he told her that he was going to do so or that he had done so. Asked whether hee showed her any written warning, he answered "Not to my knowledge." He also testified that he talked to her several times about her work, but did not recall in what months he talked to her about anything. Asked if Kirby ever mentioned to him or to Kern a problem of working nights because of her children, he answered both questions "Not to my knowledge." There are in evidence written recommendations signed by Zimmerman for Kirby's termination, one dated Novem- ber 24 for "Work unsatisfactory," one dated November 25 for "Not working in capacity," and one dated November 26 for "Not working shift required:" He explained that "Not working in capacity" referred to an instance when she gave ice water to patients, which was nurses aide work, and that, as to "Not working shift required," he thought she failed to do so one time, he could not recall when. Zimmerman testified that he did not recall if he spoke to Kirby on any of the dates of these recommendations. Asked if he ever warned her that her job was in jeopardy, he answered "Not to my knowledge." He did not explain why his discharge recommendations of November 25, 26, and 27 were not acted upon, nor what occurred to bring about her termination on December 5. He admitted that he did not give her any reason for the discharge other than to hand her the notice. But at some point he prepared a document headed "Reason for termination" stating:, 1. Failed to have physical examination within 90, days as she was asked to do. 2. Failed to follow orders on how to do her job as she was told. 3. Failed to follow housekeeping instructions on what she did. 4. She used Comet cleanser to scrubb new wooden chests in patients rooms. Discolored several tops [sic]. I found Kirby a more candid and forthright witness than Zimmerman, and credit her testimony where it is in conflict with that of Zimmerman. On the basis of Kirby's credited testimony, Zimmerman's admissions, and the evidence in its entirety, I find that Kirby had been considered a satisfactory employee until she joined the Union, wore a union button, and was openly active in soliciting other employees to, sign union cards. Kirby was admittedly never shown any warning slips as the Respon- dent's rules required, and was given, no warning of discharge. I find that the various and shifting reasons asserted by Zimmerman for her discharge are pretextual, and that Kirby was in fact terminated on December 5, 1974, to discourage membership in and activities on behalf FAIRLAWN CHATEAU & W. & D. ENTERPRISES 89 of the Union, in violation of Section 8(a)(3) and (1) of the Act-10 G. The Discharge of Secreto Secreto was employed as a nurses aide from May 5, 1974, to January 10, 1975, on the 11 p.m. to 7:30 a.m. shift. She signed a union card in late September 1974, attended all the union meetings, solicited membership at the nursing home , and, while other employees wore union buttons occasionally, she was one of the few who wore a button continuously. Secreto was at home asleep when she was awakened by her husband and told of the call about the meeting on the evening of October 10. She called the nursing home and was told by Moore that Cady called the meeting for that evening to discuss grievances. Secreto commented that notices of meetings were generally posted, that she had not had dinner, that she would have to go home after the meeting and then go back to work, but she attended and spoke up at the meeting about the benefits of union organization .- She voluntarily went with union representatives to attend a meeting at the Board office on November 29, 1974, at which Kern and Cady were present. On January 10, 1975, before the start of Secreto's shift, Kern handed Secreto an envelope which contained a notice dated January 10, signed by Cady, stating: "Because of complaints from your fellow workers concerning your attitude toward your fellow workers, you will be terminat- ed as of 1-12-75 as an employee of Fairlawn Chateau." The Respondent contended that Secreto was discharged for other reasons as well , including use of obscene language . Secreto testified that, after she read the notice, she asked if there were written accusations, that Kern replied "there are some, but most'of them were verbal," and that they then discussed whether Secreto should work her shift, Kern indicating it was up to Secreto, and Secreto did work her shift. Secreto testified that she never refused to carry out any assigned duties, that she did not recall arguing with any supervisor about her duties, that when her name was on the list to sit with Mrs. Rauch, Kern's mother, who was in an oxygen tent during this period, she did so, and in fact that she sometimes sat with Rauch during her days off. Secreto also testified that she never swore on the job, that she might have done so on the premises of the nursing home but rarely, and that she did not believe she ever used profanity. She testified further that she never came to'work late, and that in the 8 months of her employment she missed only 2 days. Moore testified that she worked for about 2 months from 11 to 11:30 p.m. with Secreto, that she never heard a patient or a nurse complain about Secreto, and that Becosky, the 11 p.m. to 7 a.m. supervisor, said Secreto was a good` worker and other girls should pattern themselves after her. She also testified, on cross-examination by the Respondent, that she never heard Secreto use foul language and never saw Secretoin a bad temper. McGee testified that she had occasion to observe Secreto 's work and found it excellent; she never heard patients complain about Secreto but did hear them- say they liked her care of them; she sat with Rauch a few times but Secreto did so even on her days off; she never heard Secreto use foul language but Secreto and others, including herself and patients, at times used swear words; and that Secreto was "bossy" but other aides, including herself, were also. Secreto had planned in about November 1974 to look for another job. She requested and obtained letters of recommendation from charge nurses with whom she had worked, including Salada and Blumish,11 whose letters are in evidence. Salada's letter states: I have had the opportunity to supervise Virginia Secreto in her position as a nurses aide. It has been a pleasure to have her as a member of the staff. Mrs. Secreto has been a very dependable person and very- conscientious about her work. She is a self- starting person and able to perform her duties without immediate supervision. I feel her quality and quantity of work is excellent, as well as her patient observations. She is extremely cooperative and gets along well with her co-workers. In my opinion, Mrs. Secreto is a highly qualified nurses' aide and would be an asset to any nursing staff. Blumish's letter states: Virginia Secreto has worked as a Nurse's Aide under my supervision. She is a very conscientious person, who I feel performs her work beyond the call of duty. Her first thought is her pt. She is a person of good moral conduct. Neat in appearance daily. A Nurse's Aide who works well with co-workers. I feel Virginia Secreto would be an asset to any nursing staff. Secreto testified that she showed her termination notice to Becosky, the charge nurse who was her supervisor, who said she knew nothing about it, did not understand it, never wrote up - Secreto or criticized her, had given her a very good evaluation, and considered her an excellent aide who should take nurses training. Secreto also testified that no other, supervisor evaluated her, that she never heard a complaint from a patient or employee, never heard of a complaint about her by a patient to a supervisor, never got an oral or written reprimand or a writeup, was never warned about her behavior `or about possible discharge, and in fact never heard what the Respondent's complaints were about her until she was told by the General Counsel in February 1975 in connection with this proceeding. Linda Becosky, an R.N. who was a night-shift supervisor from about March 1974 to January 1'975, when she quit voluntarily a few days after Secreto was discharged, testified that she supervised Secreto about 4-6 months, that in about September 1974 she evaluated seven aides including, Secreto, whom she described as a good aide, dependable, with initiative; Secreto sometimes told'other aides what to do but never in a nasty way, and did so 10 Dan Lipman et al. d/b/a Ascot Nursing Centre, 216 NLRB No. 123 (1975). 11 Neither Salada nor Blunush was called as a witness 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because , she knew the patients and the work, and Becosky approved of this; some aides complained of Secreto's bossiness but allaides at times complained about others; and Secreto at times lost her temper, as did other aides, but it was about work not done properly, and others made such complaints also. Becosky also testified that Secreto, on patient treatment was "very, very good" and "had very good rapport with the patients"; she had recommended that Secreto study nursing; Secreto never refused to sit with Rauch although she told Becosky she did not like to do it and gave her reasons ; Secreto performed housekeep- ing duties that were part of an aides work, .and never refused to do any task assigned to her; Secreto was very involved in the work and at times used swear words such as "hell" or "damn," as most aides did, and she never reprimanded an aide for this, but she did not recall Secreto using foul language or swear words in earshot of the patients ; and she has recommended discharge and has written warning slips , but never wrote up Secreto or even reprimanded her verbally. Becosky also testified that when Secreto told her, on January 10, of the termination notice, and asked if she knew anything about it, she did not as neither Cady nor Kern had mentioned it to her; she spoke about it to Kern, who said that it was Cady's affair and, further, that, as the termination notice stated, Secreto did not get along with her coworkers; she never heard of any other charge nurse writing up Secreto or even considering doing so ; and she never told Stripe, another R.N., that Secreto refused to follow orders. Becosky also testified that Secreto was openly prounion, spoke to other employees about union benefits,. and was the only one Becosky remembered who always wore a union button. Becosky admitted, on cross-examination by the Respondent, that management never spoke to her about the Union. Kern testified that she was not involved in the Secreto discharge other than to hand her the envelope at Cady's request . At another point, she testified that Cady discusses all discharges with her; they had discussed Secreto more than once when reports came in from the charge nurse; the first one was in November or December but she did not remember the nature of it; there was no decision to discharge Secreto at that time "to my knowledge," that she had no idea when this decision was made ; Cady's reports to her about, Secreto were "Pretty much verbal" but there were also written warnings which Cady showed her; she told Cady she also heard complaints on Secreto's relations with fellow employees "From the charge personnel," but, when asked which' ones, answered "I think it would be, as I said, fellow employees"; and she checked on this with one charge nurse who,was Secreto's supervisor at times. Kern also testified that the system as to warnings is that the first is usually verbal, the second is in writing, and the third might mean dismissal , and that all written warnings are supposed to be discussed with the employee, but that when Secreto asked her, at the time of the discharge, whether she had any written reports on Secreto, she told Secreto to call Cady 'in the morning. Cady testified that she had heard "little rumors" about Secreto organizing for the Union, then that no one ever 12 Secreto testified that she did not work with Stripe. told her this but she overheard remarks about it, and finally that other employees told her, possibly in late October, that they were solicited by Secreto to sign union cards. Cady also testified that she alone decided on the Secreto discharge about 3 days before it took place; she had told Secreto , on the night of a bad storm in December, when . Cady spent the night at the nursing home, that her language was offensive to supervisors and employees and had to stop because patients might hear it; she did not think she said Secreto would be written up for her use of such language; Rhoades and Stripe , both R.N.'s, had reported to her several times about Secreto's language, she told them to warn Secreto , and they told her they did; she did not discuss their , warnings with Secreto or know when Secreto was first written up; it was standard procedure for employees to be notified of writeups but charge nurses did this when she was not there; and she did not know how often Stripe worked with ' Secreto but was sure it was more than once, and that the night of the storm in December might be the first time Rhoades worked with Secreto. Cady also testified that Secreto had been evaluated when hired but she could not find those records; she told the nurses to prepare evaluations of the employees and this was done in early September 1974; she recalled that Becosky's evalua- tion of Secreto was very outstanding, this was the only one she ever saw on Secreto, and she did not recall any reference in it to foul language or refusal to perform an assignment ; and she never discussed the Secreto discharge with Becosky or even told her about it, and did not discuss it with Salada, the only other R.N. on the night shift, because Salada worked part time. Regina Stripe , an R.N., testified that she did not recall how; many times she, was working at the same time Secreto was, but , finally estimated, on cross-examination by the General Counsel , that , in the November-December period it was "Ten or less ." 12 She testified that Secreto at first "was very objective and willing to cooperate and very thorough," but later changed, and was terminated "Because of her not , performing her duties of an aide... . and two was her 'use of abusive . . [o]bscene .. . offensive language . . . swear words" directed "[s]ometimes to myself in particular or sometimes patients overheard her, or to ,other aides . It was sometimes just an integral part of her regular every day language and other times when she would get angry, it would really get bad." Stripe testified on cross-examination that "I think obscene - I don't know what t h a t is .... Taking the Lord's name in vain for one," but she refused to repeat any of the language Secreto used or even, at the request of , Respon- dent's, counsel, to write it. She admitted other aides swore, but maintained it was not to the extent Secreto did, and only "Simple swear words, not taking the Lord's name in vain." Stripe also testified that Secreto argued with her, "Not very often, but occasionally," and at another point that Secreto argued all the time, with her and with other aides, which made it difficult during that time for anyone to perform her duties . Stripe gave as examples of Secreto misconduct that when Secreto once found a patient's signal light taped up, Stripe did not know by whom, Secreto told FAIRLAWN CHATEAU & W. &, D. ENTERPRISES her about it, and said she was glad it was done, and Stripe was the one who untaped it; and that Secreto as one of the experienced aides was supposed to train a new aide, but this, new aide told Stripe that, while other aides helped her, Secreto did not. Stripe testified further that Secreto over a 2-month period refused to do her work, told supervisors what work she was going to do, refused to sit with Rauch, refused to clean patients' equipment which it was her duty to do, and "One night she refused to do anything." Stripe testified that this night she told Secreto her duty was to follow the nurse's directions or take the matter up with Cady or Kern, and that Secreto in response said "Not too much. She just didn't answer me that night." Stripe also testified that, when Secreto was looking for another job and asked her in about November or December for a letter of recommendation, she was ashamed to say she wrote one, that this was before the change in Secreto's performance, and that she would not do so after that. On cross-examination, however, she testified that she noticed this change 2 or 3 months after Secreto began working; while this would be before she wrote the letter of recommendation, Secreto would vacillate at times ; that later Secreto became consistently bad; and that this change occurred before she wrote the letter ofrecommendation. Stripe testified that she had given Secreto verbal warnings and, when these were not adequate, written warnings . One that was placed in evidence, dated Decem- ber 1, 1974, was entitled "first warning notice," checked off on the printed form conduct, attitude, and lack of courtesy, and contained a handwritten note: "Carrier of false tales re: Professional staff - cause of much dissention within and between shifts - Resorting at times to foul and abusive language" [sic]. The other one placed in evidence, dated 12/15/75 with a "4" superimposed over the last "5", was entitled "Second Warning Notice," checked off conduct, attitude, lack of courtesy, and work not satisfac- tory, and contained a handwritten note: "Insubordinate - stating also that she was sorry but she would not carry out established assignments because she felt she was not hired in for." Stripe testified that the first time she spoke to Secreto about use of bad language , Secreto apologized and said she would try to watch it, and that she later told Secreto she was going to write her up for her language, and again that she was going to write her up for her refusal to do work. Stripe admitted, however, that she did not give Secreto copies of these warnings and that, to her knowl- edge , Secreto never saw any written warnings Stripe prepared. She also did not explain why her critical written warnings of December 1 and 15, 1974, were not acted upon, nor what occurred thereafter to bring about Secreto 's discharge on January 10, 1975. Stripe testified that Secreto spoke to her about the Union about the middle of December and that she learned of Secreto's Union activity from other aides; she heard Secreto talking to employees about the Union, and reported to Kern that Secreto got one aide "so upset over 13 Counsel for the Respondent sought to introduce into evidence Secreto's pretrial statements in order to show that her testimony repeated almost verbatim one of these statements that had been prepared by the Union. The General Counsel and the Union stated that they had no 91 the union business" that this aide was ready to leave, and also, shortly before the discharge, that -Secreto had asked an aide to sign a Union card; and she at one time discussed Secreto with Cady and Kern because of Secreto's "total outlook toward the nursing home and patients. It was not just the union. It was patient care I was concerned about and lack of patient compassion.... The main reason I went to her was not because of her union activity. . . . I just wondered if I simply couldn't get her to perform her duties of an aide. I didn't care what her thoughts were about the union." Stripe testified that she discussed Secreto with Becosky once or twice in December, and that -Becosky said she was having the same problems with Secreto's use of obscene language and failure to do her work. Stripe admitted, however, that Becosky was not present when Stripe discussed Secreto with Kern and Cady. As noted above, I found Secreto a more credible witness than Cady or Kern with regard to what occurred at the October 10 meeting. I likewise find credible her testimony about her work and her termination.13 I found Stripe an unimpressive witness, and her testimony is exaggerated, improbable, and self-contradictory. I therefore do not credit her testimony that, over a period of months, Secreto's work performance and behavior were completely unsatisfactory. Stripe had relatively little opportunity to observe Secreto's work; she admittedly never showed Secreto any written warnings, as the Respondent's rules required that she do; and the Respondent never told Secreto of the asserted reasons for her discharge other than complaints by coworkers, a reason explicitly refuted by her supervisor and the charge nurses who wrote letters of recommendation for her. I found Becosky, who was Secreto's supervisor, a more candid and credible witness than Stripe. Becosky testified that Secreto was an unusual- ly able and willing worker, and, as the Respondent's witnesses were aware, she gave Secreto an excellent rating in her written evaluation. Cady and Kern, however, never consulted Becosky about, or even informed her of, the decision to discharge Secreto. Stripe repeatedly asserted that the "main reason" she discussed Secreto with Cady and Kern "was not because of her union activity." I find, however, on the basis of the credited testimony and the evidence in its entirety, that the reasons for the discharge advanced by Cady, Kern, and Stripe were pretextual, and that the Respondent discharged Secreto abruptly and without warning on Friday, January 10, 1975, effective on Sunday, January 12, a few days before' the Board election on January 17, in order to discourage union membership and activities, in violation of Section 8(a)(3) and (1) of the Act.14 IV. THE REPRESENTATION CASE ISSUES Case 8-RC-9750 was consolidated with the complaint case herein for resolution of the issues raised by the challenges to the ballots of Lauretta Kirby, Virginia Secreto, and Mimi Smith. Kirby and Secreto were challenged by the Respondent-Employer on the ground objection, but counsel for the Respondent later withdrew this proposed exhibit. 14 Dan Lipman et al. d/b/a Ascot Nursing Centre, supra Penasgsatos Village, Inc., supra. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they had been terminated prior to the election, and Smith was challenged by the Union on the ground that she was a supervisor. I have found above that Secreto and Kirby were discriminatorily discharged in violation of the Act, and that Smith was not a supervisor within the meaning of the Act. I shall recommend, therefore, that these three ballots be opened and counted, and that the Regional Director thereafter prepare and cause to be served on the parties a revised tally of ballots including therein the count of the said three ballots. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from in any other manner infringing upon its employees Section 7 rights,15 and to take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that nothing contained in the recommended order shall be construed as requiring the Respondent to revoke any wage increases or other employee benefits previously promised or granted.16 As I have found that the Respondent terminated Lauretta Kirby on December 5, 1974, and Virginia Secreto on January 10, 1975, and it has thereafter failed and refused to reinstate them, in order to discourage member- ship in and activities on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act, the Respondent will be ordered to offer each of these employees reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make each of these employees whole for any loss of pay suffered as a result of the discrimination against her, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Akron Convalescent Care, Inc., d/b/a Fairlawn Chateau, and W. & D. Enterprises, Inc., are jointly an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' 2. Retail Clerks International Association, Local No. 698, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their union activities and their reasons for organizing the Union, by stating that a wage increase was withheld because of the employees' wearing of union buttons, by creating the impression of surveillance of employees' union activities, by announcing and granting a wage increase in order to influence employees to vote against the Union in a Board election, by threatening that, if the Union were successful, there would be more rigid enforcement of work rules, loss of existing benefits, and layoffs of employees, and by other acts and conduct for the purpose of discouraging union membership or activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By terminating Lauretta Kirby on December 5, 1974, and Virginia Secreto on January 10, 1975, in order to discourage membership in and activities on behalf of the Union, the Respondent has discriminated against employ- ees in regard to their hire or tenure of employment, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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:17 ORDER The Respondent, Akron Convalescent Care, Inc., d/b/a Fairlawn Chateau, and W. & D. Enterprises, Inc., Akron, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees about their union activities and their reasons for organizing a union, stating that a wage increase was withheld because of the employees' wearing of union buttons, creating the impres- sion of surveillance of employees' union activities, an- nouncing and granting a wage increase in order to influence employees to vote against a union in a Board election, threatening that, in the event of a union victory, there would be more rigid enforcement of work rules, loss of existing benefits, and layoffs of employees, and engaging in other acts and conduct for the purpose of discouraging union membership and activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except that nothing contained herein shall be construed as requiring the 15 N.L.R.B. v. Express Publishing Company, 312 U.S. 416,437; NLRB. Rules and Regulations of the National Labor Relations Board, the findings, v. Entwistle Mfg. Co., 120 F.2d 532, 536 (CA. 4, 1941). conclusions , and recommended Order herein shall , as provided in Sea 16 N.L.P.B. v Exchange Parts Co, supra; Forbes Pavilion Nursing Home, 102 48 of the Rules and Regulations, be adopted by the Board and become Inc, supra; Styletek, Division of Pandel-Bradford, Inc, supra its findings, conclusions, and Order, and all objections thereto shall be 17 In the event no exceptions are filed as provided by Sec. 102.46 of the deemed waived for all purposes FAIRLAWN CHATEAU & W. & D. ENTERPRISES Respondent to revoke any wage increases or other benefits previously promised or granted. (c) Terminating or otherwise discriminating against any employees in regard to their hire or tenure of employment in order to discourage membership in or activities on behalf of Retail Clerks International Association, Local No. 698, AFL-CIO, or any other labor organization. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Kirby and Secreto immediate and full reinstate- ment 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. (b) Make Kirby and Secreto whole for any loss of pay each of them may have suffered as a result of the Respondent's discrimination against her, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due, under the terms of this recommended Order. (d) Post at its nursing home in Akron, Ohio, copies of the attached notice marked "Appendix." 18 Copies of the notice, on forms provided by the Regional Director for Region 8, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(l) of the Act not specifically found herein. IT IS RECOMMENDED , pursuant to the terms of the Order Consolidating Cases issued by the Regional Director for Region 8 , that Case 8-RC-9750 be, and it hereby is, severed and transferred to and continued before the Regional Director for Region 8 for further processing. is In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 93 to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees about their union activities and their reasons for organizing a union, state that a wage increase was withheld because of the employees' wearing of union buttons, create the impression of surveillance of employees' union activities, announce and grant a wage increase in order to influence employees to vote against a union in a Board election, or threaten that, in the event of a union victory, there will be more rigid enforcement of work rules, loss of existing benefits, and layoffs of employees, for the purpose of discouraging membership in or activities on behalf of Retail Clerks International Association, Local No. 698, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except that nothing contained herein shall be construed as requiring us to revoke any wage increases or other benefits previously promised or granted. WE WILL NOT discharge or terminate employees, or otherwise discriminate against any employees in regard to their hire or tenure of employment, in order to discourage membership in or activities on behalf of the above-named union or any other labor organization. WE WILL offer Lauretta Kirby and Virginia Secreto immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and WE WILL make them whole for any loss of pay each of them may have suffered as a result of the discrimination against her. AKRON CONVALESCENT CARE, INC., D/B/A FAIRLAWN CHATEAU, AND W. & D. ENTERPRISES, INC. Copy with citationCopy as parenthetical citation