Fairview Nursing Home

National Labor Relations Board - Board Decisions

Mar 9, 1973

202 N.L.R.B. 318 (N.L.R.B. 1973)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fairview Nursing Home and Public Employees Organ-
izing Committee and Quenten Oliver Varner.
Cases 10-CA-9482 -and 10-CA-9663
March 9, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 7, 1972, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
consolidated proceeding . Thereafter , the Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, ' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Fairview Nursing
Home, Birmingham, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended
Order.
1 Respondent also has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect. Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3) We have carefully
examined the record and find no basis for reversing his findings.
Respondent also contends that the Administrative Law Judge prejudiced
its case by failing to find that the alleged discnminatees were told by
Respondent's counsel, Robinson, who was also Respondent' s administrator,
to go to work after they were fired. Contrary to Respondent, the
Administrative Law Judge did find that the employees were initially told by
Robinson to go to work but found that when they told him they were fired
by Mrs Johnston, Respondent's owner, for signing union cards, Robinson
then told them "[W]ait for your second check I'll make out your other
checks," and never informed the employees that they were not discharged
for signing union cards. We agree with the Administrative Law Judge that
the aforesaid conduct did not constitute a valid offer of reinstatement
We have reviewed the Administrative Law Judge's rulings made at the
hearing and find that they are free from prejudicial error
2 The Administrative Law Judge inadvertently found that the discharges
of Supervisors Effie Henderson and Vicki Grammer were violative of Sec
8(a)(3) and (1) of the Act when it is clear that these discharges are only
violative of Sec 8(a)(1) Member Penello concurs in these findings as he is
of the view that these discharges, which were made in the context of
pervasive unfair labor practices, were part and parcel of these other
violations, and were not motivated by the proumon activity of the
supervisors as at the time Respondent fired all union card signers it was not
aware that they had signed cards, but rather were part of a pattern of
conduct aimed at penalizing employees for their union activities.
For the reasons set forth in his dissenting opinion in Krebs and King
Toyota, Inc, 197 NLRB No 74, Member Kennedy would not find these
discharges to be violative of the Act and would accordingly dismiss these
allegations in their entirety
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge in Case 10-CA-9482, filed by Public Employees
Organizing Committee, on March 13, 1972,1 was served on
the Respondent, Fairview Nursing Home, by registered
mail on March 15. A complaint and notice of hearing was
issued May 18, 1972. The complaint charged that on
February 27 the Respondent discharged its employee, Ola
Veneziano, and on March 11 discharged its employees,
Edna Avery, Clara Barnett, Margaret Edna Barnett,
Maxine Bell, Mabel Black, Bernice Bowden, Emma
Bryant, Willen Dean Cary, Zollie Culverson, Ruby
Carpenter, Nannie Mae Collins, Lucile Cummins, Kath-
leen Gillian, Willie B. Hall, Dorothy Hartefield, Mamie L.
Henderson, Dorothy Hicks, Mattie Hill, Winifred Hudson,
Richard Jones, Odesa Carlton, Luvenia Kenerly, Mattie
Kennedy, Mary Kate Lanier, Dovie Lee, Imogene Mahar-
rey, Etha L. Martin, Elvira Mason, Dorothy McDaniel,
Magnolia Mitchell, Missa Norris, Nettie Peak, Helen
Peeler, Willie Posey, Eleanor Reese,2 Mary Elizabeth
Richey, Lutitia Swanson, Andrew Tabb, Addie L. Ward,
and Etta Lee Wright, in violation of Section 8(a)(3) of the
National Labor Relations Act, Series 8, as amended, herein
referred to as the Act. It was further charged in the
complaint that the Respondent engaged in surveillance of a
union meeting of its employees. On August 4, an
amendment to the complaint was filed in which the names
of Effie Henderson and Vicki Grammer were added to the
complaint.
The charge in Case 10-CA-9663 filed by Quenten Oliver
Varner, an individual, on June 30, was served on the
Respondent by registered mail on July 3. The complaint
and notice of hearing was issued on August 4. The
complaint charged that the Respondent had discharged its
employee, Quenten Oliver Varner, on March 11, in
violation of Section 8(a)(3) of the Act. In addition, it was
charged that the Respondent informed its employees that it
would be futile to select the Union as their bargaining
representative because the Respondent would not have a
union to represent its employees; that it had coercively
interrogated employees about their union membership,
activities, and desires; that it had created an impression of
surveillance of its employees' union activities; and that it
had promulgated, maintained, and enforced a rule prohib-
iting its employees from engaging in any activities on
behalf of a union at any time in the nursing home.
On August 4, an order was entered consolidating Cases
10-CA-9482 and 10-CA-9663.3
The Respondent filed timely answers denying that it had
engaged or was engaging in any of the unfair labor
I All dates herein refer to 1972 unless otherwise noted.
2 Eleanor Reese testified as Eleanor Reese Mills.
3 Hospital Employees Local 1318, Laborer' s International Union of
202 NLRB No. 49
FAIRVIEW NURSING HOME
practices alleged . Inter alia, in its answer in Case
10-CA-9482, Respondent admitted that Ola Veneziano
was discharged , but alleged that the discharge was "for
cause in that said former employee created a disturbance
on the job , and used disrespectful language and profanity
to a supervisor , constituting insubordination and miscon-
duct, and therefore was not eligible for reinstatement." The
Respondent further denied that it had discharged the other
employees listed in the complaint and answered that "said
former employees quit without notice and thereby aban-
doned all lawful interest in said employment."
The consolidated cases came on for trial on September
26, 27 , 28, and 29, 1972, at Birmingham , Alabama. Each
party was afforded a full opportunity to be heard, to call,
examine , and cross-examine witnesses, to argue orally on
the record , to submit proposed findings of fact and
conclusions , and to file briefs. All briefs have been
carefully considered.
FINDINGS OF FACTO
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a sole proprietorship with its principal office and
place of business located at Birmingham, Alabama, where
it is engaged in the operation of a nursing home.
The Respondent during the past calendar year, which
period is representative of all times material herein,
received gross revenues in excess of $400,000, $86,000 of
which were derived from Medicaid payments by the
Federal Government. During the first 3 months of 1972, a
representative period, the Respondent purchased goods
valued at $360 from a supplier within the State of
Alabama, who received such goods directly from outside
the State of Alabama. Projected to a yearly expenditure,
such purchases would total $1,440. Respondent is, and has
been at all times material herein, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.5 (See
Decision and Direction of Election in Case 10-RC-9112.)
On the first day of August 1972, the Respondent entered
into a lease and option agreement with Vari-Care, Inc., a
Delaware corporation. The lease and option agreement
provided for a term of 5 years, commencmg on the first
day of September 1972 and ending on the last day of
North America, AFL-CIO, the Petitioner in Case 10-RC-9112, was
allowed to intervene in this proceeding in that a finding in the instant case
as to whether or not the Respondent wrongly discharged certain employees
would affect the eligibility of those employees whose ballots were
challenged in the representation election
4 The facts found herein are based on the record as a whole and the
observations of the witnesses
5 The Respondent admitted the facts above-stated, however, denied that
it was engaged in commerce within the meaning of Section 2(6) and (7) of
the Act
6 In Case 10-RC-9112, the Regional Director for Region 10 issued a
Supplemental Decision and Order Amending Decision and Direction of
Election, in which the Regional Director found that, "Laborer's Interna-
tional Union of North America, AFL-CIO, Hospital Employees Local 1318
has replaced PEOC [Public Employees Organizing Committee ] as Petitioner
herein" The Regional Director further found that Local 1318 was an
organization in which employees participated and which existed for the
purpose of representing employees with regard to working conditions,
hours, and employee grievances and was a labor organization seeking to
represent certain of the employer's employees The Regional Director
319
August 1977, with a monthly rental of $65 "for each bed
which tenant is permitted to use by virtue of its license to
operate the facility under the laws of the State of Alabama
as of the commencement of each monthly period, for
which the rent is charged, which in no event shall be less
than a 165 beds." The lease was subject to an option to
purchase the premises at any time during the term of the
lease or at any renewal thereof at a puce of "$10,000 for
each bed which the tenant is permitted to use by virtue of
its license to operate the facility by the State of Alabama at
the time of the exercise of the option, which in no event
shall be less than one hundred and sixty-five (165) beds," a
total consideration of $1,650,000. A license effective
September 20, 1972, was issued by the Alabama State
Board of Health to Vari-Care, Inc., to operate Fairview
Nursing and Convalescent Home, "under their operational
ownership." On September 22, the Respondent terminated
all of its employees and turned the keys and the operation
of its nursing home business over to Vari-Care, Inc. Vari-
Care, Inc., hired new employees and some of those who
had been employed by the Respondent.
II. THE LABOR ORGANIZATION INVOLVED
Public Employees Organizing Committee, herein re-
ferred to as the Union, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act .6
III. THE UNFAIR LABOR PRACTICES 7
A. Pertinent Facts
At all times material herein Esther J. Johnston, some-
times referred to herein as Mrs. Johnston, was the owner of
the Respondent, S. Patrick Robinson was the administrator
(Robinson also appeared as attorney for the Respondent in
this proceeding), and Ronnie Johnston was the assistant
administrator.
Alex J. Hurder was the chairman of the Public
Employees Organizing Committee and is presently the
president of Local 1318 of the Laborer's International
Union, which position he assumed in the first week of May
1972. Public Employees Organizing Committee was
formed in November 1971 for the purpose of representing
employees of the University of Alabama in matters
ordered an election with Local 1318 on the ballot A request for review of
the Regional Director's decision was denied by the Board In the earlier
Decision and Direction of Election, dated May 3, 1972, the Acting Regional
Director for Region 10 had found that Public Employees Organizing
Committee was an organization in which employees participated and that it
existed for the purpose of dealing with employers concerning wages, hours
of employment, and conditions of work and that it was a labor organization
within the meaning of the Act.
r The credibility resolutions herein have been derived from a review of
the entire testimonial record and exhibits with due regard for the natural
logic of probability, the demeanor of the witnesses , and the teaching of
NL.R.B v Walton Manufacturing Company & Loganvt/le Pants Co., 369
U S. 404, 408 As to those witnesses testifying in contradiction to the
findings herein , their testimony has been discredited, either as having been
in conflict with the testimony of credible witnesses or because it is in and of
itself incredulous and unworthy of belief In addition , consideration has
been given to the fact that many of the General Counsel's witnesses were
cross-examined as to incidents in which the Respondent 's cross-examiner
was personally involved and did, notwithstanding , testify adversely to the
Respondent.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning wages, hours, and working conditions. There-
after, its objectives were broadened to include the
representation of employees of nursing homes in the
Birmingham area.
On January 20, 1972, a rally was held by the Public
Employees Organizing Committee at which Ralph Aberna-
thy, president of the Southern Christian Leadership
Conference, was the principal speaker. Pamphlets were
distributed announcing the rally. Four or five employees of
the Respondent attended. Several of these employees
signed authorization cards for the Union. On January 27,
an organizational meeting was held for those who had
signed cards. Some of the employees of Respondent
attended this meeting. During the first week in February,
at a meeting of the Respondent's employees, employees
Ola Veneziano and Mattie Kennedy were elected cochair-
women.
About the middle of February some of the Respondent's
employees met at the Steelworkers hall in Fairfield. On
that occasion, employee Luvenia Kenerly arrived early and
waited in front of the Steelworkers hall. With her were
employees Dorothy Hicks, Lucile Cummins, Ola Veneziano,
and others. Ronnie Johnston, in an automobile parked
directly across the street, was observing the employees.
About 2 weeks later, Ronnie Johnston again observed the
employees while in a parked car across the street from the
Center Street Baptist Church where the Respondent's
employees were holding a union meeting.
Another union meeting was held on February 26 at
Lucile Cummins' home. About 10 or 12 of the Respon-
dent's employees were present. In that several employees of
the Respondent had been recently discharged the possibili-
ty of a strike was discussed. It was decided, however, to
encourage the employees to find some other means of
protesting. A P.E.O.C. newsletter was distributed. On
February 27, employee Kenerly placed a copy of the
newsletter under Mrs. Johnston's door between 6:30 and 7
a.m. Shortly thereafter, Robinson came in, picked up the
newsletter, read it, and then left the area. The newsletter
contained a letter from a dissatisfied, unidentified "LPN
from Fairview." The abbreviation, LPN, indicates a
Licensed Practical Nurse.
About 10 minutes after the newsletter had been slipped
under Mrs. Johnston's door Ola Veneziano was dis-
charged. About a week later, employee Kenerly heard
Robinson say to the head housekeeper, Lena Nichols, that
"[H ]e didn't think that he had anything to worry about.
That he thought they got the head of the Union when they
fired Ola."
According to a report which Mrs. Johnston8 claimed she
had received from Mr. Robinson, Veneziano had been
"fussing" all night with another employee, Beulah Smith.
Robinson asked both of the employees what the trouble
was. Veneziano, "started talking loud talk to him ... .
She asked him to go to hell and he asked her to leave.
Check out and leave."9 Veneziano was discharged,
between 6 and 7 o'clock.
On February 27, 1972, Hurder phoned Mrs. Johnston
and informed her that he was chairman of the Public
Employees Organizing Committee and that he wanted to
talk to her about the discharges and the situation at the
nursing home. She agreed to meet with him around 3
o'clock at which time he appeared at the nursing home in
the company of Virgil Pierson, a representative from the
Steelworkers. When they arrived, Mrs. Johnston had left.
They waited about 20 minutes, but she did not return.
On March 6, an informational picket line was placed at
the foot of the hill on which the nursing home was located.
The pickets carried signs explaining that employees had
been discharged for organizing. This picket line, which
continued through March 11, was manned by the six
employees who had been fired by the Respondent and
other members of the Union from hospitals in Birming-
ham. None of the employees of the nursing home joined or
observed the picket line.
When it became apparent that the Respondent did not
intend to recall the employees whom it had fired, there was
general sentiment among the employees in favor of
striking. Rather than to engage in the strike it was
determined that the morning shift should call in late on
March 11, and report to work an hour late. This course of
action was followed.
Prior to March 11, the Respondent had held several
biweekly staff meetings. At one of these meetings, Mrs.
Johnston said, "You can't have a union come in here. I'm
private owned and no one will come in and tell me how to
run my business." Both Mrs. Johnston and Robinson were
quoted as saying at a staff meeting that they "weren't going
to have no union up there;" that the first one whom they
"caught trying to form a union they were automatically
fired;" and "if they were thinking that now [they] could
resign ." Mrs. Johnston was also quoted as saying at staff
meetings that "anybody that tries to bring a union to my
building I will fire every last one of them," and that
"anybody who tried to form a union and signed cards [I
will] fire every last one of them." 10
About 3 weeks before March 11, LPN Bradford upon
instruction from Mrs. Johnston called several employees
over a loudspeaker to appear at the second floor nurses'
station. These employees included employees Lamer,
Avery, Lee, Mitchell, and Peeler. Mrs. Johnston indicated
that someone had informed her that the employees were
trying to start a union. She said, "y'all can't do that
because I am self-owned, I'm self-operated and I won't
have a union in my place." At this point the telephone rang
and Mrs. Johnston, in answering it, said, "I do need nurse's
aides and it won't be long until I'll need a lot more." Mrs.
Johnston told the employees to return to work and that she
"didn't want to hear anymore of this about a union."
In about the middle of February, Mrs. Johnston phoned
employee Helen Elizabeth Peeler to report for work.
During the conversation, Mrs. Johnston asked her whether
she knew "anything about the union." Peeler lied to her in
response. About 3 weeks before March 11, employee Edna
s- Mrs . Johnston 's credibility has been given serious consideration Her Mrs Johnston for her discharge is not accepted as the true reason
resentment and indignation at her employees ' signing union cards were 9 Testimony of Mrs Johnston
apparent in her demeanor as she testified She gave the strong impression 10 Although Mrs. Johnston testified , the foregoing testimony was not
that her account of the March I I events was not strictly in accord with what denied
actually happened As to the discharge of Veneziano, the reason given by
FAIRVIEW NURSING HOME
Avery called Mrs. Johnston in respect to her schedule.
During the conversation, Mrs. Johnston asked employee
Avery whether she knew "anything about this union
business." She also asked her whether she had attended
"any of them of meetings." Although Avery had signed a
union card, she denied knowledge of the Umon and that
she had attended one meeting.
About 2 weeks before March 11, Mrs. Johnston asked
employee Emma Bryant in the presence of Willie Posey,
"Have you been attending any of these meetings?" Bryant
answered in the negative. Whereupon Johnston insisted,
"You have." Bryant answered, "No, ma'm, I attended a
rally." Mrs. Johnston then said that she had heard
something about a union and asked Bryant whether she
knew anything about it. Bryant answered in the negative.
Johnston responded, "If I ever hear talk that you all tried
to bring a union in here I'm going to fire every last one of
iiyou.
Sometime during the first week of March, Mrs. Johnston
phoned Eleanor Reese Mills in order to ascertain when she
would be able to return to work. During the conversation,
Mrs. Johnston asked Mills whether she had signed a umon
card.
About 2 weeks before March 11, Head Housekeeper
Nichols and employee Mamie Henderson were in the linen
room. Nichols said to Henderson, "You was at the meeting
last night." Henderson answered in the negative. After
repeating herself several times and again receiving negative
answers, Nichols said, "Some respectable person saw you
there." Henderson again denied the fact. Nichols added,
"Mrs. Johnston is going to fire all of them that signed
union cards."
On or about the first of March, Nichols escorted
employee Clara Barnett to Mrs. Johnston's office, where
Mr. Robinson, Mrs. Johnston, and Mrs. Robinson were
waiting. Mr. Robinson asked her whether she knew
anything about the Umon; she answered, "Yes, sir."
Whereupon Robinson said, "Didn't you know this nursing
home belonged to Mrs. Johnston . . . . Didn't Mrs.
Johnston sign your checks?" He then asked her whether
she had signed a union card. She answered, "Yes, sir," and
asked if she was fired. Johnston responded, "No, go on
back to work."
On the morning of March 11, LPN's Effie Henderson
and Virginia Diliberto reported for work at 7 o'clock.12
Employees on the first shift did not appear but Henderson
received phone messages from some employees such as,
"The car broke down. Some of them had to change tires.
Some had to catch the bus." Diliberto informed Mrs.
Johnston of the situation whereupon Mrs. Johnston came
to the nursing home. In the meantime, the employees
arrived for work and were instructed by Nichols to proceed
to the lobby. Among the first of these employees was Mary
Kate Lamer to whom Mrs. Johnston said, "What are you
doing coming in this time of morning?" She answered, "We
were told to be an hour late." Addressing employee Helen
ii Employee Posey testified credibly that he was asked tojom the group
by Mrs Johnston and that she also interrogated him as to whether he knew
anything about the "union business." He quoted her, saying, "if they are
trying to sneak a umon in here, she was not going to have it Every one
would be fired at the time she found out about it." During the period prior
to March 11, Posey said that he had several phone conversations with Mrs
321
Peeler, Mrs. Johnston asked whether she was "with that
trash." Peeler answered, "Yes, ma'm, I am." Mrs. Johnston
responded, "Well, get down to the foot of the hill with
them, you sorry looking thing." To employee Willie Posey,
who, according to Mrs. Johnston, depended on her and
called her "Mamma Johnston," Mrs. Johnston said,
"Willie, you been knowing about this thing all the while
and you've been lying to me all the time. As far as I'm
concerned with your little black self you can get down the
hill with the rest of them." Angrily Mrs. Johnston declared
that any employee who "signed a union card was fired."
She told the assembled employees, to get down to the foot
of the hill with the rest of the "idiots" and off her property.
She informed the employees that she had called the police
who soon arrived and told the employees it was "best" for
them to go to the bottom of the hill. At that time,
arrangements were made for the police to escort the
employees back to the nursing home to receive their
paychecks which were due at 3 o'clock that afternoon. The
employees proceeded to the bottom of the hill. Henderson,
who was watching from a window, upon seeing the
employees leave, "threw the medicine keys down" and
addressing Diliberto said "Here, it's yours. I'm gone with
them." Employees in this group who were ordered off the
premises and discharged were Luvenia Kenerly, Dorothy
Hicks, Helen Peeler, Mary Kate Lanier, Quenten Varner,
Margaret Barnett, Willie Posey, Zollie Culverson, Etta
Wright, Dovie Lee, Mattie Hill, Nannie Mae Collins,
Willen Dean Cary, Dorothy McDaniel, Mamie Henderson,
Eleanor Reese Mills, and Missa Norris, all of whom had
signed union cards. These employees were joined by other
employees at the bottom of the hill who learned from them
that if they had signed a union card they were discharged.
These additional employees were Mattie Kennedy, Magno-
lia Mitchell, Emma Bryant, Winifred Hudson, Andrew
Tabb, Mary Elizabeth Richey, Mabel Black, Clara Barnett,
Maxine Bell, Lucile Cummins, Kathleen Gillian, Richard
Jones, Odesa Jelks Carlton, Addie Ward, Ruby Carpenter,
Nettie Mae Peak, Elvira Mason, and Effie Henderson, all
of whom had signed union cards.
On two occasions, between 10:30 and 11 a.m. and
approximately at 2:30 p.m., Administrator Robinson
appeared at the foot of the hill and offered the employees
their paychecks. On each occasion, when the employees
refused the checks, Robinson made the statement that the
employees might as well take their checks because they
were fired anyway. On the latter occasion, employee
Emma Bryant remarked to Robinson that "we are fired
two times in one day."
At 3 p.m., the employees appeared at the nursing home
to receive their checks, as previously appointed. Among
these employees were third-shift employees who were
dressed for work. Robinson told these employees to go to
work. The employees responded that they were fired and
that Mrs. Johnston said "it went for everybody who had
Johnston in which the Union was mentioned . During these conversations,
Mrs Johnston asked him whether he had signed a union card and also told
him "not to sign one."
12 For the purposes of this decision the General Counsel concedes that
the LPN's are supervisors within the meaning of the Act.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed union cards." Robinson then told them, "[W ]ait for
your second check." 13 "I'll make out your other checks."
These employees as well as others were given two checks.14
When employee Magnolia Mitchell appeared she was
given one check. She brought this matter to Robinson's
attention and said, "If we are fired for signing cards I want
my other four days." Robinson answered, "If you will wait
I will make it." Employee Andrew Tabb, a card signer,
who was not scheduled to work on March 11, also
appeared for his check. He was given two paychecks, "a
check that [he ] was supposed to pick up and the days [he ]
had remaining that [he] had worked over because the pay
period had closed." Tabb was not scheduled to work until
the following Monday.
Employee Edna Avery, a card signer, last worked on
March 10 and was not scheduled to work again until
Wednesday, March 15; however, she had made arrange-
ments with Robinson that he would call her on Sunday if
her days could be increased from 3 to 5 days a week. When
he had not called as of Wednesday, she called Mrs.
Johnston. She said to Mrs. Johnston, "[i]f I'm fired would
you mail me my check, my last check." Mrs. Johnston
answered, "Yes, ma'm, I will." When Avery asked when
she would mail it, Mrs. Johnston replied, "When I get good
and ready."
Some time in late August, employee Posey called Mrs.
Johnston and asked to return to work. She said that she
would give him some work at her home, but she wanted to
talk to Robinson first. She asked Posey to call back the
next day. When Posey called again Mrs. Johnston told him
that Robinson "thought that it was best for [Posey] not to
return to work because [he] was in this mess, too, and to
wait until all of it was over."
The Respondent offered evidence indicating that certain
employees ought not to be reinstated because of their
misconduct.
Janis Chaffin, a receptionist and secretary, said that on
one occasion she answered the phone and a man said,
"Tell Mr. Robinson if he wants to keep on living him and
his wife will stay at home." The person was not identified.
Chaffin also said that she received a telephone call from
Elizabeth Richey. Richey said, "They are going to bomb
your house tonight." Chaffin also testified that roofing
nails on one occasion had been scattered at the bottom of
the driveway near the side of the highway.
Employee Addie Cogburn claimed that employee Eliza-
beth Richey said to her, "If we catch you going in that
nursing home again we will kill you." 15 Hilda Lee
Cogburn, a sister-in-law of Addie Cogburn, said that while
she went through the picket line Richey "screamed out if
we didn't stop going to the nursing home she would be
waiting on us at night and kill us and we wouldn't go back.
She called us tramps and said we took their jobs . . . . She
called us slums, bastards, and everything else."
13 One paycheck covered wages earned during the pay period for which
payment was to have been made on Saturday, March 11. The second check
referred to wages which had been earned after such pay period ended.
Normally, payment for this period would not have occurred until the
following Saturday
14 Significantly at no time, although the opportunity presented itself, did
Robinson inform the employees that they were not discharged for signing
union cards or invite any of the card signers to return to work.
Loma Robinson described an incident involving Quen-
ten Varner which took place around the first part of May
or the latter part of April at Miller's parking lot. Loma
Robinson was sitting in her automobile when her sister
approached, indicating that employee Varner was follow-
ing her. After her sister entered the automobile and as the
automobile commenced to move, Varner rammed a
shopping cart into the right side of the car. Both ladies,
who are in their early 60's, were greatly agitated by the
incident and according to Loma Robinson her sister
became ill and a short time thereafter was placed in
intensive care. Early in June she died. Cause of death was
listed as heart failure.16
Employee Zollie Culverson went with the employees to
the bottom of the hill on March 11. When Robinson
offered the checks to the employees at the bottom of the
hill on March 11, Culverson took his check which was
payment in full for the time he had worked. About a
month later, Culverson went back to work for 1 day. Mrs.
Johnston had offered him a raise from a $1.68 an hour to
$2.25 an hour.
After he had returned to work for the 1 day, Dorothy
McDaniel, Emma Bryant, and Magnolia Mitchell, who
usually transported him to the picket line, arrived at his
home in an automobile. McDaniel was informed that
Culverson was going to work. The employees left. Shortly
thereafter, the three employees saw Culverson near a ball
park and stopped the automobile. They asked Culverson
where he was going. He replied that he was going to work.
They asked him why he was not going to the picket line. A
brief discussion followed after which he entered the
automobile with the three women. They proceeded to
Eleanor Reese's house. Kenerly and Hicks also went to
Reese's house. The women and Culverson remained there
for about a half hour, during which time Culverson asked
for and received some whiskey. Among other things
Culverson said, "Y'all, I know I did wrong. I shouldn't
have gone back up there because Mrs. Johnston has been
so dirty to me." McDaniel jocularly said, "Come on, Zollie.
We are going to teach you a little lesson." From a "little
hedge bush" in Reese's frontyard McDaniel seized a small
switch and, while Culverson was laughing, she struck him
"one or two licks." All of the employees were laughing.
After the incident, the employees including Culverson
went together to the picket line. At the picket line
Culverson asked some of the women to wrap his head with
white gauze so that he could fool Mrs. Johnston. This was
done.17
A. The Alleged Violations of Section 8(a)(1)
of the Act
As noted above, Mrs. Johnston interrogated employees
with respect to their union activities. These interrogations
occurred within the context of other unfair labor practices.
is Most of the employees who were working on March II were new
employees.
16 Mattie Mae Smiley accused Mattie Hill of a telephone threat. Hill
denied the threat. In view of Hill's denial and the vagueness of the
identification , a finding that Hill made the telephone threat is not supported
and none can be made.
17 In respect to this incident, where Culverson' s testimony conflicts with
that of Mitchell it is discredited
FAIRVIEW NURSING HOME 323
Their purpose was not communicated to the employees nor
were any assurances against reprisals given to them.18
Indeed, while interrogating one employee, Mrs. Johnston
threatened that if employees teed to bring in a union
"every last one" would be fired. Moreover, the Respondent
did not prove that such questioning was pursuant to the
Employer's legitimate business interests. The effect of the
questioning was to inhibit union activity 19 and instill in the
minds of employees fear of discrimination on the basis of
the information sought.20 Accordingly, it is found that by
the following interrogations the Respondent violated
Section 8(a)(1) of the Act: 21
(a) Mrs. Johnston's interrogation of employee Peeler
about the middle of February as -to whether she knew
"anything about the union."
(b) Mrs. Johnston's interrogations of employee Avery
about 3 weeks before March 11 as to whether she knew
"anything about this union business" and whether she had
attended a union meeting.
(c) Mrs. Johnston's interrogations of employee Bryant in
the presence of employee Posey about 2 weeks before
March 11 as to whether she had been attending union
meetings and whether she knew anything about the Union.
(d) Mrs. Johnston's interrogation of employee Posey
about 2 weeks before March 11, as to whether he knew
anything about the Union and her interrogations of him as
to whether he had signed a union card.
(e) Mrs. Johnston's interrogation of employee Eleanor
Reese Mills during the first week of March as to whether
she had signed a union card.
(f) Administrator Robinson's interrogations of employer
Barnett about the first of March as to whether she knew
anything about the Union and whether she had signed a
union card.22
The Respondent also violated Section 8(a)(1) by threats
of reprisal uttered at employee staff meetings, to wit: "You
can't have a union come in here"; the first one "caught
trying to form a union" would be "automatically fired"; 23
and "anybody who tried to form a union and signed cards
she [Mrs. Johnston] would fire every last one of them."
Likewise the Respondent violated Section 8(a)(1) by Mrs.
Johnston's threat to employee Bryant about 2 weeks before
March 11 when she said, "If I ever hear talk that you all
tried to bring a union in here I am going to fire every last
18 The Board has said, "Questioning selected employees about their
union sympathies . . without any assurance against reprisal, by its very
nature tends to inhibit employees in the exercise of their right to organize."
Engineered Steel Products, Inc, 188 NLRB No 52 1
19 "It is well settled that such interrogation violates Section 8(a)(1) when
its probable effect is to inhibit union activity." N L R B. v. Southern
Electronics Co, 430 F 2d 1391 (C A. 6)
20 "Such interrogation as to union sympathy and affiliation has been
held to violate the Act because of its natural tendency to instill in the minds
of employees fear of discrimination on the basis of the information the
employer has obtained." N LR B v West Coast Casket Company, Inc, 205
F.2d 902, 904 (C A. 9).
21 See NLRB v Super Toys, Inc, 458 F 2d 180 (C A. 9), Hendel
Manufacturing Company, Incorporated, 197 NLRB No. 179
22 Although Mrs Johnston testified, none of these coercive interroga-
tions was denied
23 The Board has said, "We regard a threat of job loss to be a serious
deterrent to organizational activity." Comet Rice Mills Division, Early
California Industries, Inc, 195 NLRB No. 117
24 Although Mrs Johnston and Mrs Nichols testified, they did not deny
the foregoing threats
one of you." The Respondent further violated Section
8(a)(1) by the head housekeeper's threat to employee
Henderson about 2 weeks before March 11, to wit: "Mrs.
Johnston is going to fire all of them that sign cards."24
When Assistant Administrator Ronnie Johnston ob-
served the employees' meeting places from a car parked
across from the Steelworkers hall and later at the Center
Street Baptist Church, the Respondent violated Section
8(a)(1) of the Act. When Mrs. Johnston told employees
that someone had told her that the employees were trying
to start a union and when Head Housekeeper Nichols
informed employee Henderson that "some respectable
person" had seen her at a union meeting, the Respondent
created the impression that its employees' union activities
were under surveillance and thereby violated Section
8(a)(1) of the Act.25
B. The Discharge of Ola Veneziano
Not only does the uncontroverted and credited testimo-
ny of • employee Kenerly (Kenerly testified that she
overheard Administrator Robinson say that "he didn't
think that he had anything to worry about. That he thought
they got the head of the Union when they fired Ola")
support a finding that Veneziano was discharged in
violation of Section 8(a)(3) of the Act, but other factors
support the same conclusion. Veneziano had been seen by
Assistant Administrator Ronnie Johnston at a union
meeting place; she was the cochairwoman of the union; 26
she was discharged shortly after a union newsletter had
been observed by Administrator Robinson and during the
Union's initial organizational attempt; 27 and there is no
credible evidence that she had not been a satisfactory
employee.28 Moreover, Veneziano was discharged during a
period in which the Employer was exposing its union
animus by coercive interrogations and threats of discharge
to employees who signed union cards.29 Additionally, to
rebut the General Counsel's prima facie case the Respon-
dent produced vague and illusory evidence. The Respon-
dent relied solely upon the hearsay testimony of Mrs.
Johnston, who is a discredited witness. The Respondent
did not offer the testimony of the employee with whom
Veneziano is alleged to have "fussed" the night of
25 "[Tlhe law reasons that when the employer either engages in
surveillance or takes steps leading his employees to think it is going on, they
are under threat of economic coercion, retaliation , etc." Hendrix Manufac-
turing Company, Inc, 321 F 2d 100, 104, fn. 7 (C.A 5) See also N.LR B v.
Ralph Printing and Lithographing Company, 371 F.2d 687, 691 (C A 8).
26 "Obviously the discharge of a leading union advocate is a most
effective method of undermining a union organizational effort." N L R B v.
Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A 5)
27 As stated in N LR B v. Jamestown Sterling Corp, F.2d 725, 726 (C.A.
2) "[Tlhe unexplained coincidence of time with respect to the principal
events was really no coincidence at all, but rather part of a deliberate effort
by the management to scotch the lawful measures of the employees before
they had progressed too far toward fruition."
28 "The discharge of qualified workers who are also active unionists
is a circumstance of suspicion which may give rise to a justified inference of
violative discrimination .' " Betts Baking Co. v N.LR.B., 380 F.2d 199, 204
(C.A 10).
29 ".. every equivocal act that was done may be properly viewed in the
light of respondent's animus toward the effort to organize its men."
N.LR B. v. Houston and North Texas Motor Freight Lines, Inc, 193 F 2d
394, 398 (C A 5), cert. denied 343 U.S. 934.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 26. The record is barren of any explanation for
the absence of this witness.30 Obviously, the Respondent
has not met the General Counsel's prima facie case.
Accordingly, it is clear that the Respondent's defense
savors of pretext and that the "real motive"31 of the
Respondent was to discourage membership in a labor
organization.32 By the discharge of Ola Veneziano on
February 27, 1972, the Respondent violated Section 8(a)(3)
of the Act.
C. The Discharges of the Remaining Alleged
Discriminatees
The credible evidence establishes without doubt that the
Respondent intended to and did discharge employees
because they signed union cards. This message was given
by Mrs. Johnston to those employees who were in the
lobby on March 11 and it was reiterated by Administrator
Robinson to those employees who were at the foot of the
hill on March 11 when Robinson said that the employees
might as well take their checks because they were all fired.
Thus, except for card signers Bernice Bowden, Willie B.
Hall, Dorothy Hartefield, Imogene Mahaffey, Etha L.
Martin, Lutitia Swanson, and Vicki Grammer who were
neither in the lobby nor at the bottom of the hill, all of the
discriminatees had been notified by word of mouth that
they were discharged. That the Respondent intended to
discharge all card signers is evident from the fact that when
the second-shift employees revealed to Robinson that they
were also card signers, he asked them to wait for their
second checks and did not disavow Mrs. Johnston's
remark that all card signers were fired. Moreover, card
signer Tabb who was not scheduled to work until Monday
received two checks, his pay in full, on March 11. Indeed,
on the following Wednesday when employee Avery was
scheduled to work, Mrs. Johnston did not dispel the belief
that she was fired but said she would mail her last check to
her. That the Respondent did not intend to offer any of the
card signers reemployment is further buttressed by the fact
that when Posey sought reemployment, Mrs. Johnston told
him that he could not return to work until "this mess" was
over. It is clear from the record as a whole that the
Respondent did not want a single card signer in its employ,
but wished them all at the bottom of the hill with the rest
of the "idiots." Mrs. Johnston's threat to fire any employee
who signed a union card was not an idle threat, but was
executed with vigor and dispatch when all card signers
were given their final checks. Under these circumstances, it
is trenchant that the Respondent intended to and did
discharge all card signers,33 the true purpose of which was
to discourage membership in a labor organization. Its
claim that these employees "abandoned their employment
and `quit without notice' and engaged in a `called strike' or
`walk out' against the Respondent," or as stated in its
answer, "said employees quit without notice and thereby
abandoned all lawful interest in the said employment" is
wholly without merit. Accordingly, by the discharges of the
discriminatees listed in the complaints and the amendment
to the complaint,34 the Respondent violated Section 8(a)(3)
of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully discharging Ola Veneziano on Febru-
ary 27, 1972, and Edna Avery, Clara Barnett, Margaret
Edna Barnett, Maxine Bell, Mabel Black, Bernice Bowden,
Emma Bryant, Willen Dean Carey, Zollie Culverson, Ruby
Carpenter, Nannie Mae Collins, Lucile Cummins, Kath-
leen Gillian, Willie B. Hall, Dorothy Hartefield, Mamie L.
Henderson, Dorothy Hicks, Mattie Hill, Winifred Hudson,
Richard Jones, Odesa Carlton, Luvenia Kenerly, Mattie
Kennedy, Mary Kate Lanier, Dovie Lee, Imogene Mahar-
rey, Etha L. Martin, Elvira Mason, Dorothy McDaniel,
Magnolia Mitchell, Missa Norris, Nettie Peak, Helen
Peeler, Willie Posey, Eleanor Reese Mills, Mary Elizabeth
Richey, Lutitia Swanson, Andrew Tabb, Addie L. Ward,
Etta Lee Wright, Quenten Oliver Varner, Vicki Grammer,
and Effie Henderson on March 11, 1972, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1), and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
30 "The production of weak evidence when strong is available can lead
only to the conclusion that the strong would have been adverse. Silence then
becomes evidence of the most convincing character " Interstate Circuit,
Incorporated v U S, 306 U S 208, 226 See also Threads-Incorporated, 124
NLRB 968,971
31 " the 'real motive' of the employer in an alleged 8(a)(3) violation is
decisive " N LR B v Brown d/b/a Brown Food Store, 380 U S 278, 287 "It
is the 'true purpose' or 'real motive' in hiring or finng that constitutes the
test." Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express]
v. N L R B, 365 U.S 667, 675
32 In reaching this conclusion the adverse inference which may be drawn
from the failure of the General Counsel to call Veneziano as a witness has
been considered and weighed.
33 See Casino Operations, Inc, 169 NLRB 328, 329
34 The General Counsel concedes that Effie Henderson and Vicki
Grammer, listed in the amendment to the complaint in Case l0-CA-9482,
are supervisors within the meaning of the Act for the purposes of this
decision Nevertheless, the General Counsel asserts that the Respondent
violated Sec 8(a)(3) of the Act by their discharges, citing Krebs and King
Toyota, Inc, 197 NLRB No 74. There is no doubt that Mrs. Johnston
intended to and did discharge employees because they signed union cards
and that the true purpose of the Respondent was to discourage membership
in a labor organization The discharges of card signers Henderson and
Grammer were in furtherance of the same purpose and a part of the
Respondent's strategy to rid itself of the Union. Their discharges had a
tendency to cause employees to forsake or avoid membership in a union for
fear that they would be subjected to the same reprisal As stated in Miami
Coca Cola Bottling Company d/b/a Key West Coca Cola Bottling Company
140 NLRB 1359, 1361, discharges such as those of Henderson and
Grammer are "an integral part of a pattern of conduct aimed at penalizing
employees for their union activities." (Cited with approval in Krebs and King
Toyota, Inc, supra ) Thus Henderson and Grammer were, as were the other
employees, discriminated against in regard to "tenure of employment" to
"discourage membership" in a labor organization and thereby the
Respondent violated Sec. 8 (a)(3) and ( 1) of the Act.
FAIRVIEW NURSING HOME 325
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged Ola Veneziano, Edna Avery, Clara Barnett,
Margaret Edna Barnett , Maxine Bell, Mabel Black,
Bernice Bowden, Emma Bryant, Willen Dean Cary, Zollie
Culverson, Ruby Carpenter, Nannie Mae Collins, Lucile
Cummins, Kathleen Gillian, Willie B. Hall, Dorothy
Hartefield, Mamie L. Henderson, Dorothy Hicks, Mattie
Hill, Winifred Hudson, Richard Jones , Odesa Carlton,
Luvenia Kenerly, Mattie Kennedy, Mary Kate Lanier,
Dovie Lee, Imogene Mahaffey, Etha L. Martin, Elvira
Mason, Dorothy McDaniel, Magnolia Mitchell, Missa
Norris, Nettie Peak, Helen Peeler , Willie Posey, Eleanor
Reese Mills, Mary Elizabeth Richey, Lutitia Swanson,
Andrew Tabb, Addie L. Ward, Etta Lee Wright, Quenten
Oliver Varner, Vicki Grammer, and Effie Henderson it is
recommended that Respondent remedy such unlawful
conduct. It is recommended in accordance with Board
policy35 that the Respondent offer said employees36
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions without prejudice to their seniority or
other rights and privileges and make them whole for any
loss of earnings that they may have suffered as a result of
the discrimination against them by payment to them of a
35 See The Rushton Company, 158 NLRB 1730, 1740.
36 In respect to Varner, in view of the serious nature of his misconduct
the General Counsel does not contend that he is entitled to reinstatement
and full backpay. ". . . a striking employee's misconduct may justify an
employer's refusal to reinstate . 29 U.S.C. Sec. 160 (c). The question in each
case is whether, under the circumstances , the alleged misconduct of the
striker is sufficient to justify the refusal to reinstate ." W. J. Ruscoe Company
v. N.L.R. B., 406 F.2d 725, 727 (C.A. 6). Varner's conduct plainly was of
such a character as to justify the Employer's refusal to reinstate him.
However, the General Counsel claims that under the circumstances Varner
is, nevertheless , entitled to backpay from March 11, the date of his
discharge , until the day of the Loma Robertson incident . In the case of a
discriminatory discharge in violation of Sec . 8(aX3) of the Act, the remedial
purpose is both to restore the "situation, as nearly as possible , to that which
would have obtained but for the illegal discrimination ," (Phelps Dodge
Corporation v. N.L.R.B., 313 U.S. 177, 194) and to deter the employer from
a repetition of like misconduct. Since the public interest is at stake, the
employer ought not to be allowed, as a matter of course, to profit from his
own wrongful misconduct and be wholly exonerated from the Act's
sanctions because the employee likewise was at fault. Indeed , the Board
"will balance the severity of the employer's unfair labor practice which
provoked the industrial disturbance against whatever employee misconduct
may have occurred in the course of the strike ." N.LR.B., v. Thayer
Company, and H. N. Thayer, 213 F.2d 748, 755 (C.A. 1). Thus, where
circumstances permit, the Act's sanctions ought to be accommodated. In
this case some backpay accrued during a period prior to the time the
employee 's misconduct occurred and during a period in which the
Employer normally would have been obligated for backpay which was
required not only as a restoration of the status quo ante but also as a
deterrent against the Employer's repetition of like misconduct. Thus under
the circumstances of this case there seems to be no sound reason to wholly
shut off the remedial demands of the Act and void its deterrent effect
because of the subsequent misconduct of an employee which has no
relevance to the Employer's misconduct unless one were to reason that the
employee 's misconduct would not have occurred had the Employer not
unlawfully discharged him. Accordingly, as requested by the General
Counsel, backpay for Varner is awarded from March I I until the day of the
Loma Robertson incident.
In respect to the conduct of the other discriminatees, it was not of such a
sum of money equal to the amount they would have earned
from the date of their discriminatory discharges to the date
of an offer of reinstatement , less net earnings during such
period to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
per annum in the manner set forth in Isis Plumbing &
Heating Co., 130 NLRB 716.37
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, it is hereby recommended that the
following Order be issued.38
ORDER
The Respondent, Fairview Nursing Home, its officers,
agents, successors, and assigns and its owner, Esther J.
Johnston, her agents, successors, and assigns shallI
1. Cease and desist from:
(a) Discouraging concerted activities of its employees or
membership in the Public Employees Organizing Commit-
tee or any other labor organization by unlawfully discrimi-
natorily discharging any of its employees, or by unlawfully
discriminating in any manner in respect to their hire and
tenure of employment or any term or condition of
employment in violation of Section 8(a)(3) of the Act.
(b) Unlawfully interrogating its employees regarding
their union activities.
(c) Unlawfully spying on its employees' union activities
serious or flagrant nature as to justify the withholding of the normal remedy
of reinstatement and full backpay. Hartman Luggage Company, 183 NLRB
No. 128; Stewart Hog Ring Company, Inc., 131 NLRB 310, 313.
37 "Reinstatement is the conventional correction for discriminatory
discharge ." N.L.R.B. v. International Van Lines, 405 U.S. 953 ; but here,
since the Respondent ceased doing business on September 22 when Vari-
Care took over the Respondent 's operations, the "conventional correction"
may not be accommodated because the Respondent may no longer be an
employer of employees . Thus, the discriminatees, at this stage of the
proceedings, are left without the likelihood of an offer of reinstatement from
the Respondent . Their predicament in this respect has been caused by the
Respondent's misconduct and through no fault of their own . They have lost
wages and will continue to lose wages until such time as they find
substantially equivalent employment . The Respondent has not only caused
the loss of the discriminatees ' jobs but the loss of the wages which they
would have earned had they been working for the Respondent until
September 22 and the additional loss of the wages which they would have
earned after September 22 until such time as they would have found
substantially equivalent employment . Effectuation of the policies of the Act
demands that the discriminatees be "as nearly as possible" countervailed,
for the appropriate remedy requires "a restoration of the situation, as nearly
as possible, to that which would have obtained but for the illegal
discrimination ." Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177, 194.
Since the "as nearly as possible" remedy in the instant case can not be
attained unless it provides for full restoration of backpay, including the
backpay which may accrue after September 22, it is recommended that the
backpay to be paid by the Respondent be awarded to each discriminatee,
commencing on March II and continuing thereafter until such time as the
discriminatee is gainfully employed in a substantially equivalent position to
that in which he or she was employed by the Respondent. In this regard, it is
significant that by reason of the Respondent's misconduct , the discrimina-
tees' chance of employment with Vari-Care, Inc ., was frustrated.
38 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or creating an impression of surveillance of its employees' dismissed insofar as they allege violations of the Act other
union activities.
(d) Unlawfully threatening employees that they will be
discharged if they sign union authorization cards.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization to form labor organizations,
to join Public Employees Organizing Committee or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, subject to the
union-security requirements of Section 8(a)(3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Ola Veneziano, Edna Avery, Clara Barnett,
Margaret Edna Barnett, Maxine Bell, Mabel Black,
Bernice Bowden, Emma Bryant, Willen Dean Cary, Zollie
Culverson, Ruby Carpenter, Nanme Mae Collins, Lucile
Cummins, Kathleen Gillian, Willie B. Hall, Dorothy
Hartefield, Mamie L. Henderson, Dorothy Hicks, Mattie
Hill, Winifred Hudson, Richard Jones, Odesa Carlton,
Luvenia Kenerly, Mattie Kennedy, Mary Kate Lanier,
Dovie Lee, Imogene Maharrey, Etha L. Martin, Elvira
Mason, Dorothy McDaniel, Magnolia Mitchell, Missa
Norris, Nettie Peak, Helen Peeler, Wilkie Posey, Eleanor
Reese Mills, Mary Elizabeth Richey, Lutitia Swanson,
Andrew Tabb, Addie L. Ward, Etta Lee Wright, Vicki
Grammer, and Effie Henderson immediate and full
reinstatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges, discharging if necessary any employees hired to
replace them and make them (and Quenten Oliver Varner)
whole for any loss of pay that they may have suffered by
reason of the Respondent's discrimination against them in
accordance with the recommendations set forth in the
section of this Decision entitled "Recommended Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its premises at the Fairview Nursing Home,
Birmingham, Alabama, copies of the attached notice
marked "Appendix."39 Copies of said notice, on forms
provided by the Regional Director for Region 10, after
being duly signed by the Respondent's representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaints be
than those found in this Decision.
as 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
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
The National Labor Relations Board, after a trial in which
all parties were permitted to introduce evidence, found that
we discharged Ola Veneziano, Edna Avery, Clara Barnett,
Margaret Edna Barnett, Maxine Bell, Mabel Black,
Bernice Bowden, Emma Bryant, Willen Dean Cary, Zollie
Culverson, Ruby Carpenter, Nanme Mae Collins, Lucile
Cummins, Kathleen Gillian, Willie B. Hall, Dorothy
Hartefield, Mamie L. Henderson, Dorothy Hicks, Mattie
Hill, Winifred Hudson, Richard Jones, Odesa Carlton,
Luvenia Kenerly, Mattie Kennedy, Mary Kate Lanier,
Dovie Lee, Imogene Maharrey, Etha L. Martin, Elvira
Mason, Dorothy McDaniel, Magnolia Mitchell, Missa
Norris, Nettie Peak, Helen Peeler, Willie Posey, Eleanor
Reese Mills, Mary Elizabeth Richey, Lutitia Swanson,
Andrew Tabb, Addie L. Ward, Etta Lee Wright, Quenten
Oliver Varner, Vicki Grammer, and Effie Henderson
unlawfully and that by their discharges we discouraged
employees from becoming and remaining members of
Public Employees Organizing Committee or any other
labor organization.
WE WILL offer the above-named employees (except
for Quenten Oliver Varner) their former jobs or, if their
jobs no longer exist, substantially equivalent positions
and will restore their seniority.
WE WILL pay them any backpay they have lost
because we discharged them.
WE WILL NOT discharge any employee for the same
reasons for which the Board found that we discharged
the above-named employees.
WE WILL NOT unlawfully discharge employees for
lawfully engaging in umon activities or protected
concerted activities.
WE WILL NOT unlawfully interrogate any employees
with respect to their union activities.
WE WILL NOT unlawfully spy on our employees'
umon activities or create an impression that we are
spying on our employees' umon activities.
WE WILL NOT threaten to or discharge employees for
signing union authorization cards.
The laws of the United States give all employees these
rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representatives
they choose
To act together for collective bargaining or
other mutual aid or protection
FAIRVIEW NURSING HOME
To refuse to do any or all of these things,
subject to the union-security requirements of
Section 8 (a)(3) of the National Labor Relations
Act, as amended.
All of our employees are free to remain , or refrain from
becoming or remaining , members of a labor organization.
FAIRVIEW NURSING HOME
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above -named individuals, if
presently serving in the Armed Forces of the United States,
327
of the right to full reinstatement , upon application after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 2102
City Federal Building, 2026 Second Avenue North,
Birmingham , Alabama 35203, Telephone 205-325-3877.