Family Nursing Home & Rehabilitation Center, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 923 (N.L.R.B. 1989)

FAMILY NURSING HOME 923
Family Nursing Home & Rehabilitation Center, Inc.
and Karen J. Ingvoldstad and Local 150, Serv-
ice Employees International Union , AFL-CIO-
CLC. Cases 30-CA-9720, 30-CA-9724, and
30-RC-4693
June 30, 1989
DECISION, ORDER , AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 13, 1988, Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting and answering brief, and the Re-
spondent filed an answering brief to the General
Counsel 's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions 1 and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Family
Nursing Home & Rehabilitation Center, Inc., Mil-
1 In finding that the Respondent unlawfully discharged employee Mari-
lyn Holland , Chairman Stephens and Member Devaney rely solely on the
judge's findings regarding the Respondent's "disparate enforcement
[against Holland] of the ban on solicitation" for conduct similar to that
permitted to antiunion employee Dobson . In doing so, they find it unnec-
essary to rely on the judge's further comment that Holland 's alleged
transgression was "hardly a major infraction "
2 We agree with the judge 's recommendation that no reinstatement and
backpay be provided for discnminatee Holland in the circumstances of
this case . In so concluding, we rely solely on the evidence showing that
Holland 's conduct immediately following her discharge , and particularly
her assault against the Respondent 's director of nursing , was of a type
that warrants denial of reinstatement and backpay . In ascertaining wheth-
er those remedies are appropriate in the face of a claim of employee mis-
conduct, the Board traditionally "looks at the nature of the misconduct
and denies reinstatement in those flagrant cases 'in which the misconduct
is violent or of such character as to render the employee unfit for further
service."' C-Town , 281 NLRB 458 (1986), quoting J. W. Microelectronics
Corp, 259 NLRB 327 (1981 ). Assessed under that standard , and notwith-
standing that they were a response to an unlawful discharge , Holland's
immediate postdischarge actions warrant the denial of backpay and rein-
statement See generally Carthage Fabrics Corp., 1 01 NLRB 541, 553-555
(1952) (re employee Baldwin); Stein- Way Clothing Ca, 131 NLRB 132 fn
2 (1961 ) (re employee Garland ); cf. C-Town , supra.
Member Cracraft agrees with her colleagues that Holland's conduct
immediately following her discharge warrants denial of backpay and rein-
statement. In so concluding , Member Cracraft relies particularly on the
nature of the Respondent's business in caring for the elderly and infirm.
We have modified the judge's notice to more fully conform with his
recommended Order
waukee, Wisconsin, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order, except that the attached notice is substituted
for that of the administrative law judge.
IT IS FURTHER ORDERED that the election, held
on August 21, 1987, be set aside and that Case 30-
RC-4693 be severed from Cases 30-CA-9720 and
30-CA-9724 and remanded to the Regional Direc-
tor for Region 30 for the purpose of conducting a
new election.
[Direction of Second Election omitted from pub-
lication.]
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 has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge our employees, thereby
discriminating in regard to their hire and tenure of
employment in order to discourage membership in
Local 150, Service Employees International Union,
AFL-CIO-CLC.
WE WILL NOT promulgate, maintain or enforce
any rule, regulation or other prohibition which for-
bids the wearing of union insignia outside of imme-
diate patient care areas or outside other specifically
identified areas where the wearing of union insi-
ginia would adversely affect patient care.
WE WILL NOT grant wage and bonus incentives
to employees in order to discourage support for the
Union.
WE WILL NOT interrogate employees about their
union sentiments or activities.
WE WILL NOT threaten to delay wage increases
to employees if they select union representation.
WE WILL NOT threaten to eliminate paid holi-
days if the employees select union representation.
WE WILL NOT threaten to eliminate overtime
work for part-time employees if the employees
select union representation.
WE WILL NOT threaten to eliminate meal privi-
leges of employees if they select union representa-
tion.
WE WILL NOT threaten to issue written warnings
to employees for minor infractions if they select
union representation.
WE WILL NOT threaten employees with immedi-
ate discharge for striking after selecting union rep-
resentation.
295 NLRB No. 95
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to seek out and discharge
employees for distributing union literature.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights under the National
Labor Relations Act.
WE WILL offer Karen Ingvoldstad and Ann
Wilber immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL expunge from our files any reference
to the discharges of Karen Ingvoldstad, Ann
Wilber, and Marilyn Holland, and notify them in
writing that this has been done and that evidence
of these unlawful discharges will not be used as a
basis for future personnel action against them.
All our employees are free to become or remain
or refrain from becoming or remaining members of
the above-named or any other labor organization.
FAMILY NURSING HOME & REHA-
BILITATION CENTER, INC.
Paul Bosanac, Esq., for the General Counsel.
John M. Loomis, Esq., of Milwaukee, Wisconsin, for the
Respondent.
Judith E. Kuhn, Esq., of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge in 30-CA-9720 was filed by Karen Ingvoldstad,
an individual, on August 26, 1987.1 The charge in 30-
CA-9724 was filed by Local 150, Service Employees
International Union, AFL-CIO-CLC (Union or Charg-
ing Party), on August 28. An order consolidating cases,
consolidated complaint and notice of hearing was issued
on October 8, and an answer thereto was timely filed by
Respondent. The petition in 30-RC-4693 was filed on
June 30, and pursuant to a stipulated election agreement,
an election was held on August 21. Objections thereto
were filed by the Union on August 28. A revised tally of
ballots was issued on September 23, disclosing that the
Union had lost the election. By Order dated October 14,
the above-captioned cases were consolidated for hearing.
An amendment to the complaint was issued on Novem-
ber 27, and an answer thereto was timely filed by Re-
spondent. Pursuant to notice, a hearing was held before
the administrative law judge in Milwaukee, Wisconsin,
on December 8, 9, 10 and 11, 1987. Briefs have been
r All dates are 1987 unless otherwise indicated
timely filed by the General Counsel and Respondent,
which have been duly considered. On January 15, 1988,
Respondent filed a motion to correct transcript. No op-
position thereto having been filed, that motion is hereby
granted.
FINDINGS OF FACT
1. EMPLOYER'S BUSINESS
The Employer is engaged in the operation of a nursing
home at Milwaukee, Wisconsin. During the past calendar
year, Employer, in the course and conduct of its business
operations, derived gross revenues in excess of $100,000.
During that same period of time, the Employer pur-
chased and received goods and services valued in excess
of $5000 directly from points located outside the State of
Wisconsin. The complaint alleges, the answer admits,
and I find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find,
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES2
A. Facts
1. The 8(a)(1) allegations
Marvin Zetley purchased Respondent in December
1986. He is the president and sole owner. Zetley's three
sons are corporate officers. It appears that at the time of
the purchase Zetley reduced wages from their existing
levels up to $1 per hour. In addition, according to Ing-
voldstad, a part-time registered nurse, working condi-
tions had worsened, creating considerable discontent
among the employees. In an effort to call this matter to
the attention of management, Ingvoldstad drafted a letter
dated April 7 to Zetley which set out the concerns of
the employees over such matters as understaffing, inad-
equate supplies, reduced salaries and fringe benefits, to-
gether with suggestions for improving the conditions.
This letter requested consideration for these concerns
and a response. The letter was signed by some 19 em-
2 While the complaint alleges that Steven Zetley, by interrogating Hol-
land on August 20, violated Sec. 8 (a)(1) of the Act, Holland 's testimony
concerns only a conversation with Howard Zetley . No interrogation by
Steven Zetley was ever established , and this allegation of the complaint
should be dismissed.
0 There is conflicting testimony regarding some allegations of the com-
plaint . In resolving these conflicts , I have taken into consideration the ap-
parent interests of the witnesses In addition, I have considered the inher-
ent probabilities; the probabilities in light of other events ; corroboration
or lack of it; and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other wit-
nesses with similar apparent interests In evaluating the testimony of wit-
nesses , I rely specifically upon their demeanor and have made my find-
ings accordingly While apart from considerations of demeanor, I have
taken into account the above noted credibility considerations, my failure
to detail each of these is not to be deemed a failure on my part to have
fully considered it. Bishop & Malco, Inc., 159 NLRB 1159, 1161 (1966).
FAMILY NURSING HOME
ployees, with Ingvoldstad 's name heading the second
column of signatures . Ingvoldstad testified that she
placed copies of the letter in the in-house mailboxes of
the administration directed to Zetley ; Max Taglin, Re-
spondent 's administrator ; and Kim Zumft, director of
nurses. Taglin and Zumft are no longer employed by Re-
spondent.
Zetley, who testified that the letter was packed full of
"blatant lies," held a meeting of employees in early
May4 to discuss the letter . At this meeting, Zetley
denied the complaints set out in the letter and exhorted
the employees to work together to run a good nursing
home.
A petition for election was filed on June 30. Zetley
testified that he was not happy about the prospect of
being organized and bargaining with the Union. He en-
gaged an attorney to speak to his staff people and himself
advised them that he was opposed to being organized.
On July 15, a memo was posted by the timeclock. The
memo read:
MEMORANDUM
CHANCE TO START EARLY FOR
CHRISTMAS MONEY
To: Nursing Staff
In order to maintain continuity of patient care
through consistent staffing patterns-the following
will be implemented as follows:
1. Staff working two extra full shifts, during a
pay period (beyond regular scheduled shift).
or
2. Staff working both days of their weekend off.
3. Staff working 2 full double shifts in pay
period.
For all of the above-you shall receive an extra
50 cents per hour.
Staff who are not absent for any reason during a
months [sic] period and who have no tardiness, call
ins, or leaving early for any reason will receive a
$25.00 bonus.
The wage incentives were implemented and remained
in effect through November 15. Zetley testified that the
incentives were the result of inquiries being made by the
State of Wisconsin about understaffing . He wanted to
give the employees the opportunity to earn additional
money rather than hiring temporary employees to fill in
for absenteeism . According to Zetley, the filing of the
petition and Union 's organizing effort had nothing to do
with offering of the wage incentives.
As a matter of Board and court law, the granting of
benefits while a representation proceeding is pending is
not per se illegal ; however, if an employer grants bene-
fits during this critical period , it has the burden of show-
ing that the benefits would have been bestowed even if
the union were not on the scene . R. Dakin & Co., 284
* While Zetley testified that the meeting took place July 15 , a review
of the credible relevant testimony , particularly from Ingvoldstad, con-
vinces me that it was held in May.
925
NLRB 98 (1987); ARA Food Services, 285 NLRB 221
(1987); Red's Express, 268 NLRB 1154, 1155 (1984). Re-
spondent has totally failed to make such a showing.
While Respondent argues that its incentive program was
prompted by the State's inquiries into staffing shortages,
and that the program was the best way to solve the
problem, these explanations are not supported by the
record . Moreover, the timing is suspect , since Respond-
ent had reduced wages only 7 months earlier , certainly
not a move that would not seem to alleviate staffing con-
cerns . In these circumstances , I conclude that the grant-
ing of a 50-cent-per-hour wage incentive and the $25
bonus incentive violates Section 8(a)(1) of the Act.
In early July, and again on August 21, the day of the
election , Zetley himself distributed paychecks to the em-
ployees . At the July check distribution , Zetley also dis-
tributed buttons to employees . These were about 3
inches in diameter , reading "We Are Family," together
with the name of the nursing home . According to
Zetley, the union organizing effort had nothing to do
with the distribution of the buttons . According to Zetley,
he wanted to get the employees to work together and to
create a camaraderie among the employees . Regardless
of Zetley's contention , it is clear that in the context of an
election campaign , these were pro-Employer solicita-
tions.
The Union was also distributing buttons to employees.
The buttons bore the legends "Service Employees Inter-
national Union AFL-CIO Local 150" and "Don't Quit-
Organize-Union 150, SEIU." These buttons were worn
by employees during worktime.
Marilyn Holland , a nursing assistant , testified that
during the second week in July she was given a "Local
150" button which she wore at work. She testified that
she was standing by the nurses' station when Marvin
Zetley approached her, looked at the button, and told
her that she could not wear that button in his building
and to take it off now. Holland complied . Since Hol-
land's testimony on this matter is uncontested , I conclude
that the incident did occur ; further, that in the circum-
stances, ordering Holland to remove the button violated
Section 8(a)(1) of the Act. While there may be special
circumstances where an employer, particularly in the
health care industry , may prohibit the wearing of union
insignia, it may not, in circumstances where the employ-
er is distributing and promoting the wearing of proem-
ployer buttons, at the same time prohibit the wearing of
prounion buttons . Such disparate enforcement violates
Section 8(a)(1) of the Act as well as constituting interfer-
ence with the election.
Even in the absence of evidence of disparate enforce-
ment, Respondent may not prohibit the wearing of union
insignia outside of immediate patient care areas. As to
other areas , a rebuttable presumption of legality exists
and Respondent must show that this prohibition is neces-
sary to ensure patient care . No such showing has been
made in the instant case. Accordingly , I conclude that
Marvin Zetley violated the Act in ordering Holland to
remove her union button. Beth-Israel Hospital v. NLRB,
437 U. S. 483, 506 (1978), and Asociacion Hospital del
Maestro, 283 NLRB 419 (1987).
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On or about August 17 or 18, according to Ann
Wilber, a dietary aide, she was in the breakroom with
several employees when Tammy Wentz, cook supervisor
in the dietary department , asked her and several others
how they were going to vote . Wilber replied that she did
not know . Wentz commented that they had better make
up their minds since the election was coming up.
Wilber also testified that at about the same date she
and Nadine Brodsky were in the breakroom with other
employees . Wentz and Dean Chapman, another supervi-
sor cook , were talking . From an adjoining table at a dis-
tance of about 15 feet, Wilber heard Wentz say to Chap-
man that they were looking for people who were passing
out literature for the Union or involved with the Union
so that they could fire them . In circumstances where a
supervisor makes coercive statements , in a public place,
and those statements are overheard by employees, those
statements violate Section 8 (a)(1) of the Act, whether
they were intended to be overheard since the necessary
effect of the statement would be to discourage employees
from engaging in lawful union activity at the risk of their
jobs.
In another incident on about Wednesday , August 19,
Dietary Department Supervisor Ruth Karlinsky called
Wilber into her office. Karlinsky asked her if she had
any questions about the Union . Wilber responded that
she did not because a union representative had come to
her home several times and had answered her questions
to her satisfaction . Karlinsky told her that she was a
good worker and could get anywhere from a 25 -cent to
a 50-cent raise at the end of her probationary period
(Aug. 24), but that if the Union were elected , she prob-
ably would not see it for 6 months to a year . Karlinsky
also told her that if the Union got in, Respondent was
going to take away two paid holidays . Further , that if
they went on strike , since Respondent was a health orga-
nization , they would be fired immediately . In addition,
Karlinsky told her that as a part-time employee she
would not be allowed to work overtime as she had in the
past or to eat leftovers in the kitchen as they had been
doing and would have to bring meals from home. Also,
that they would have to be written up for any minor in-
fraction , such as being a few minutes late. Karlinsky tes-
tified , but her recollection failed her when asked if she
had initiated the meeting or had told Wilber that she
would get a 50-cent raise upon completion of her proba-
tionary period unless the Union won the election. About
all that Karlinsky can recall is that she told Wilber to
vote and saying that she did not care how she voted.
Having carefully reviewed her testimony , I conclude
that Karlinsky's testimony about her meeting with
Wilber is not reliable and I therefore credit Wilber's ac-
count of that conversation and conclude that the repre-
sentations made to Wilber interfered with her rights
guaranteed under Section 7 of the Act. In essence, Re-
spondent , through Karlinsky , threatened that Respondent
would delay a wage increase; take away paid holidays
and overtime ; deny employees meal privileges ; write up
employees for minor infractions; all in the event the
Union won the election , and further, that if a strike
ensued, they would be discharged immediately. These
constitute essentially threats to reduce benefits, impose
more burdensome working conditions and to discharge
employees for exercising their Section 7 right to select
union representation . While Karlinsky's inquiry at the
outset, asking if Wilber had any questions about the
Union, might not normally be coercive, it is clear that in
the context of this entire conversation its innocence was
lost, and must be viewed as an unlawful interrogation.
Such interrogation is clearly coercive and violates Sec-
tion 8(a)(1) of the Act.
2. Karen Ingvoldstad 's discharge
Ingvoldstad was employed by Respondent as a part-
time registered nurse from December 1985 until she was
discharged on July 24 . As noted above, Ingvoldstad was
responsible for the April 7 letter to Marvin Zetley,
which set out various complaints about working condi-
tions and suggested ways to improve the situation. The
letter was followed by a meeting between Zetley and the
employees . About the end of April, Ingvoldstad was
contacted by the Union and furnished the Union with
names and addresses of employees . Prior to this, Ing-
voldstad had contacted another union and had been sent
material on employee rights which she had distributed to
some employees.
Ingvoldstad went on vacation beginning May 26 and
returned on June 24 , by which time the union campaign
had become more active. The Respondent became aware
of her union sentiments when she wore a union button
on July 11 and 12. Marvin Zetley testified that he saw
her wearing a union button.
On Saturday , July 11, Ingvoldstad worked the first
shift which ended at 3:30 p.m. As the shift was ending,
Ingvoldstad realized that she did not have enough time
to finish treatments for three patients that were called for
on their charts . The treatments were the application of
lotions, changing the dressing on a toe, and taking a
blood pressure . She asked Nicky, her supervisor, whose
last name she could not recall , what she should do about
it. Nicky advised her to note on the chart that the treat-
ments had not been done and the reason . Ingvoldstad
told Nicky that before, when some treatments were un-
finished, she had been told to leave them blank and
report it to the following shift . Nicky indicated that she
did not want it done that way because the next shift had
too much work to do ; just to chart that it was not done
and why it was not done . Ingvoldstad told the second
shift anyway in the hope that they would have a chance
to do it and they said that they would try. Ingvoldstad
testified that she worked the following day, July 12, and
did the treatments at that time, except for the blood pres-
sure reading.
Ingvoldstad was next scheduled to work on July 17,
but she was called by David Fisher , director of nursing,
on July 16 and told not to report . Thereafter , despite ef-
forts by Ingvoldstad to determine her employment status,
she was put off until July 24 when she was called by
Fisher who asked her to come in at 3:30 p.m. to discuss
her charting . They met in Fisher's office at about 3:30
p.m. Fisher called Ingvoldstad's attention to the fact that
she had not done these treatments on July 11 and that by
so doing, she had jeopardized her nursing license and the
FAMILY NURSING HOME 927
license of the nursing home . Ingvoldstad explained that
she had asked her supervisor how to handle the problem
and that she was doing as she had been told. Fisher did
not respond to this, reiterating that she had a legal direc-
tion to do these things and that since she had not done
them, she was fired. A "disciplinary action notice" made
out by Fisher reads, in pertinent part, "Physician orders
are to be followed . Employee terminated for not admin-
istering treatments as prescribed."
Fisher testified that his first knowledge of the matter
came during the middle of the week of July 12, when
someone he cannot recall brought to his attention the no-
tations made by Ingvoldstad on the patients ' charts. The
record does not disclose who the "someone " was or why
the three charts were being reviewed at that time . Fisher
testified that charts are normally checked at the end of
the month and returned to the floors if they are incom-
plete, to be reviewed by individual nurses responsible. In
any event , Fisher testified that upon learning of Ingvold-
stad 's failure to administer these treatments , he met with
Marvin Zetley in his (Fisher's) office. According to
Fisher, they discussed the Ingvoldstad incident in light
of a recent state inspection of staffing and patient abuse
problems at Respondent 's nursing home, and it was de-
cided that Ingvoldstad should be discharged. Zetley,
however , could not recall the discussion.
3. Marilyn Holland 's discharge
Marilyn Holland, a nursing assistant , was employed by
Respondent from May 12 until she was discharged on
August 20. At the time of her discharge , Holland was
still in the 120-day probationary period set out in Re-
spondent 's "Personnel Policies" handbook . Holland testi-
fied that during the organizing effort she obtained union
authorization cards and got about eight of them signed.
Holland came to work on Thursday , August 20, at
about 2:30 p.m ., some half-hour before her starting time
of 3 p .m. The election was set for the following day,
Friday, August 21. Union Representatives Dan Katz and
Veronica Taylor were on the sidewalk outside of the
main entrance of the nursing home distributing union
pamphlets . As Holland went into the facility, she ob-
tained about 10 leaflets which she folded , stuck inside
her uniform , and brought into the building with her. As
she went into the building, an employee named Doris
Dobson was standing in the main doorway of the Re-
spondent's property passing out antiunion leaflets. Once
in the building, Holland went to the employees ' lounge
since it was not yet time to punch in, and she gave pam-
phlets to a couple of employees who were on their
break . Just before 3 p.m., Holland punched in and went
to the second floor, her assigned area, and put the leaf-
lets into her locker . Holland testified that she then left
the second floor to take a patient by elevator to the busi-
ness office located on the first floor. According to Hol-
land, Dobson was still in the doorway passing out leaf-
lets to those employees entering. At this time Holland
went outside of the building to the sidewalk where she
obtained more pamphlets. Holland obtained a handful of
pamphlets which she hid in the back of her uniform. She
then returned to the business office and returned with
the patient to the second floor where she removed the
leaflets from her uniform and put them under the linen
on her linen cart . Later, according to Holland , she was
making a bed in one of the rooms when Howard Zetley
came into the room and said to her, "Marilyn, you are
very involved in the Union , aren't you"; to which Hol-
land responded , "So what about it" ; and Zetley said
"You better ask somebody about our track record and
how we do things around here" and left the room.
Howard Zetley denied ever speaking to Holland on
August 20 and testified that he left the nursing home in
the morning and did not return until about 6 p.m., when
he was called in because of the disturbance incident to
Holland 's discharge . Having reviewed the testimony, I
am satisfied that Howard Zetley was the more reliable
witness, and I credit him in concluding that this conver-
sation did not occur.
Fisher testified that at about 3:15 p.m ., he observed
Holland on the first floor of the building . Fisher testified
that he was concerned that Holland was not on her as-
signed unit on the second floor since the shift change
period between 3 and 3:30 p.m. was a busy time due to
the transition of employees from one shift to the next
and there was a danger to patients during that process.
Fisher followed Holland to the second floor and saw her
put the green pamphlets under the linens on her cart and
enter a patient's room . He removed the pamphlets and
read one of them . Fisher then was paged by Diane
Riyahi, the Respondent 's personnel director , who told
him that she had observed Holland outside the building
getting some pamphlets from some people who were dis-
tributing them outside the building . Fisher then went,
with the pamphlets , to Riyahi's office where they con-
firmed that those were the pamphlets Holland had
picked up outside the building . Fisher then threw the
pamphlets away.
Thereafter at about 4 p.m., Fisher was on the second
floor when he observed Holland on the telephone.5
After confirming with Holland 's third-shift supervisor
that Holland was not on breaktime , Fisher called Riyahi,
apparently with a view toward discharging Holland, in
order to determine if,Holland was in her probationary
period and to see what her file contained as to prior dis-
ciplinary actions . Rihayi told Fisher that Holland was
still a probationary employee and that she had previously
been given a written warning for smoking in an unau-
thorized patient bathroom area, which Fisher recalled
since he was directly involved in the incident and had,
himself, issued the warning . At that point Fisher made a
determination to terminate Holland and consulted with
Sue Castro , Holland's supervisor, who suggested that the
termination take place in the activities room on the
lower level to avoid disturbance to the patients.
At about 4:45 p.m., Holland was called to the activities
room where Fisher and Castro were waiting for her.
Fisher asked Holland to sit, but she declined and all
three stood . Fisher began to question Holland about
leaving her unit that day and using the telephone on non-
scheduled breaktime . Holland was uncooperative in dis-
3 Holland concedes that she was on the telephone speaking to a third-
shift employee about that employee picking up union pamphlets to dis-
tribute to the third -shift employees.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cussing or responding . At this point Fisher explained that
leaving the unit left patients unattended and that because
of that and her past performance , she was being termi-
nated . Holland protested , with anger and profanity, that
Fisher could not do this to her. Holland then backed up,
grabbed a bowling trophy and came at Fisher with it in
her hand , still protesting her discharge . Fisher picked up
a chair to hold her off. Holland grabbed a leg of the
chair to pull it away . At this point Fisher asked Castro
to call the police . Castro went to the phone, but Hol-
land, seeing this, grabbed the phone receiver and pulled
it out of the phone, wires and all, exclaiming that no one
was going to make any "fucking calls to the police on
this phone ." Fisher then told Castro to use a phone in
another office to call the police . Castro left the room and
made the call . Still protesting that she could not be ter-
minated , Holland put down the trophy and left the room.
After leaving , Holland returned to the floor where she
tore the linen from some made-up beds and threw them
on the floor.
Shortly thereafter, in an area near the main entrance,
Holland confronted Fisher again , angrily protesting her
firing and demanding her check immediately . Fisher
asked her to leave the premises and made two more calls
to the police before Holland left the premises at about 6
p.m.
4. Marilyn Holland 's reinstatement
At the hearing, Fisher took the position that Respond-
ent would not rehire Holland because of the following
misconduct which he felt disqualified her from reem-
ployment.
On May 6, Holland had filled out an employment ap-
plication with the Respondent . The form required a list-
ing of the applicant 's four most recent employers. How-
ever, Holland did not list her employment with Colonial
Manor Nursing Home from April 1985 to March 1987.
When asked at the hearing why she had not listed Colo-
nial Manor, Holland replied , "Because I had got in some
trouble there , and I figured they would give me a bad
reference." Nancy Greymont, human resources director
for Colonial Manor, testified that after an investigation,
Holland had been discharged from Colonial Manor for
patient abuse consisting of flicking a cigarette lighter in
the face of a patient . Thereafter, the incident was report-
ed to the State of Wisconsin Department of Health and
Social Services who conducted its own investigation and
approved as appropriate the action of Colonial Manor.
Holland was originally granted unemployment compen-
sation benefits but after a hearing on appeal by Colonial
Manor, the decision was reversed and Holland 's request
for benefits was denied on the grounds that she had been
discharged for misconduct . Greymont also testified that
at the hearing Holland had threatened a witness saying,
"You better get your ass out of Milwaukee ," and "He
can't protect from wherever you're going to try and
hide . I'm going to get you."
Another incident occurred on July 28, when Holland
was arrested by Milwaukee police officer Teresa
Ulickey. Holland was handcuffed and put in the rear of a
police car . Ulickey testified that while en route to a
police station , Holland began to use profane and abusive
language toward her. Holland then began to kick at the
partition separating her from Ulickey. Ulickey stopped
the police car and called for a backup squad . Holland
continued to kick at the doors and windows of the police
car and sprung the car door. The backup squad arrived,
shackled Holland 's feet and took her to the station in a
police wagon.
Fisher testified that in light of the above incidents and
given Holland 's conduct at the time of her discharge, he
felt that any reemployment of Holland constituted a risk
to patients and a potential liability to the Respondent if it
knowingly hired a person with such a history.
5. Ann Wilber's discharge
Wilber, while still in high school , was hired as a part-
time dietary aide by Respondent on April 24. She
worked weekdays from 4 p.m. to 8 p.m. and on Satur-
days and Sundays from 6:30 a .m. until 3 p.m. The work
included a tray line where food, condiments, silverware,
beverages , etc., were placed on trays and delivered to
patients . Nourishments were also served between meals
to patients at 10 a .m., 2 p.m ., and 8 p.m. Other work in-
volved the washing and scouring of trays and utensils.
During the week of the election , Wilber was spoken to
by various supervisors at the facility , including Karlinsky
who inquired about her vote and Marvin Zetley who
suggested that she vote for the Company. The election
was held on August 21. Shortly after Wilber voted, she
was talking to another dietary aide , Gigi French, who
asked her how she had voted. Wilber reluctantly confid-
ed to her that she had voted yes because she felt the
Union would do something for her. According to
Wilber, as the conversation was ending she saw a man
she identified as Howard Zetley standing about 15 feet
away with an angry look on his face and then leaving.
Wilber testified that she felt that he had heard the con-
versation which she described as being in a normal con-
versational tone . Howard Zetley denied knowing Wilber
or overhearing any conversation between employees.
While I credit Wilber that the conversation with French
took place , I cannot conclude based on the record testi-
mony, and in light of Howard Zetley's denial, that he
overheard this conversation.
On Saturday , August 22, the day after the election,
Wilber came to work at 6:30 a.m. Wilber testified that
she had been ill earlier in the week but came to work
hoping she would feel better . Wilber had been signed up
by Cook Supervisor Tammy Wentz to serve food on the
tray line. However, since Wilber was still sick and the
smell of food made her nauseous , she asked Wentz if she
could switch jobs with some other person on the tray
line. Other jobs included setting out beverages , condi-
ments or silverware on the trays . Wilber testified that in
those other jobs, the heat from the steamtables and the
smell of the food would not make her ill. It appears that
it was common for employees to make such job switches
on the tray line, and Wilber testified that she had
switched tray line jobs herself previously. However,
Wentz denied her request, telling her that if she could
FAMILY NURSING HOME 929
not serve food she was to punch out and go home. This
is what Wilber did.6
Karlinsky testified that on the morning of August 24
she spoke to Wentz who reported the Saturday incident
to her . According to Karlinsky , Wentz told her that she
had asked Wilber to serve on the tray line. Wilber said
she could not serve on the tray line and Wentz told her
that if she could not do her job to go home, whereupon
Wilber punched out and left . Karlinsky testified that she
made the decision to discharge Wilber based on this in-
formation , together with the fact that Wilber was in her
probationary period as an employee . She also testified
that it did not matter to her that Wilber was not refusing
to do the other jobs on the tray line. Karlinsky also
states that while Wilber did tell Wentz that she was ill,
she did not ask Wentz to find out whether Wilber was
really ill or not. Karlinsky later spoke to Steven Zetley,
son of owner Marvin Zetley , who oversees the dietary,
laundry and housekeeping departments and he agreed
with the decision to discharge Wilber because he felt the
same way Karlinsky did, that an employee "unable to
complete their job when they are assigned a job is to be
terminated." Having decided to terminate her, Karlinsky
wrote out a warning notice dated August 22. The body
of it reads:
Employee came in on Sat said she was sick-at
the start of trayline-Supervisor stated if she was to
[sic] sick to do her job she should just leave-(Em-
ployee Punched Out) (Employee routinely must
leave trayline 1 out of 2 days when scheduled in the
morning)-(weekend).
Gary [Saunders] states this has happened at least
4 out of 5 weekends that you have worked with
him.
As Ann knows we are on a rigorous schedule
and trayline is the most important job to be done-
employees cannot be allowed to slow or stop tray-
line process once it is started-this causes cold
food-late meals etc.
A line further down recites, "Because of the seriousness
of the above violation, employee's employment at the fa-
cility is terminated as of 8/22/87."
After Wilber arrived for work that afternoon at about
3:30 p .m., Steven Zetley asked her to come into Kar-
linsky's office . While both were present, Karlinsky gave
her the written notice of discharge. Wilber read it, ex-
plained what had happened and began to complain that
she disagreed with the statement in the termination
notice attributed to Gary, another cook supervisor. Kar-
linsky told her that if she had anything to take up with
Gary, she had better do it with him.7 According to
6 Wentz did not testify. Since only Wilber 's testimony concerning the
events of August 22 are on the record , I accept as credible her unrebut-
ted testimony.
7 While the written discharge notice states that Wilber "routinely"
leaves the tray line on weekends , Saunders did not testify , and the record
does not otherwise establish those assertions . According to Wilber 's testi-
mony which is credited in the absence of any contradictory testimony,
Wilber frequently worked overtime , as her timecards indicate , and the
only time she can recall leaving work early was one day in July 1987
Wilber, Karlinsky told her that she was a good worker
and was sorry to see her go and that the decision had
not come from her but from "higher up." Karlinsky ad-
mitted that Wilber was a good worker but denied having
made any reference to "higher up." However , a review
of the testimony of Wilber and Karlinsky persuades me
that Wilber was the more reliable of the two witnesses
and, to the extent that accounts of their conversation
differ, I credit Wilber's version . Karlinsky then asked
Wilber to sign the termination notice, which she did, and
then Wilber left. It is undisputed that Wilber had no
prior written warnings in her record and that other em-
ployees discharged during their probationary periods had
received more than one written warning prior to their
discharges.
IV. ANALYSIS AND RECOMMENDATIONS
A. Ingvoldstad's Discharge
Respondent 's position is that Ingvoldstad was dis-
charged for failing to complete patient treatments. The
General Counsel contends that this explanation is a pre-
text and that Ingvoldstad was actually discharged be-
cause of her participation in the Union 's organizing
effort. On the facts disclosed by the record in the instant
case, I am convinced the General Counsel should pre-
vail.
First, it is clear that Ingvoldstad , even prior to the
Union's main organizational effort, drafted, signed, along
with others, and delivered to management, in early
April, a letter voicing the employees ' dissatisfaction with
their working conditions . She later assisted in the organi-
zational effort by providing the names and addresses of
employees to the Union . Ingvoldstad also publicly dis-
played her prounion posture by wearing a union button
and Marvin Zetley concedes that he saw her wearing the
button . On the facts, it is clear that Ingvoldstad was an
active union supporter and that the Respondent was
aware of it.
Next, we must decide whether this union activity was
the reason for the discharge or whether it was actually
for her failure to complete patient treatments. Ingvold-
stad did not have time on her shift to complete three pa-
tient treatments . It does not appear, nor was any testimo-
ny adduced to the effect that Ingvoldstad was remiss or
otherwise at fault in not completing these treatments; she
simply did not have time . 8 Having run out of time, Ing-
voldstad went to her supervisor , Nicky, for advice on
how to handle the problem . She was advised to note the
mistreatments on the patients ' charts, noting the reason,
which she did . This was a departure from past practice
where the chart was simply left blank and the next shift
made up the missed treatments . Although Ingvoldstad
called this to Nicky's attention , she was nonetheless in-
structed to do it as directed . It appears that Ingvoldstad
did the treatments on the following day except for taking
the blood pressure.
when she fainted in the kitchen due to the heat and was sent home by
Respondent for the day.
9 Her supervisor, Nicky, did'not testify , and I credit Ingvoldstad's un-
rebutted account as to the events of July 11.
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These circumstances persuade me that the reason as-
signed by the Respondent for Ingvoldstad 's discharges
are pretext , and I further conclude that she was dis-
charged for her union activity . It is undisputed that she
was an active union supporter and that this was known
to Respondent . The record does not disclose that she
was remiss or negligent in not doing the treatments, and
thereafter she simply did as she was instructed to do by
her supervisor . The simple failure to administer the treat-
ments is not per se justification for the discharge , certain-
ly not in the absence of any evidence that Ingvoldstad
was remiss or negligent in not doing the treatments.
Respondent 's reliance on Wright Line9 is misplaced.
Where, as in this case , the General Counsel has made a
prima facie showing sufficient to support the reference
that protected conduct is a motivating factor for the dis-
charge, the burden shifts to the Respondent to demon-
strate that Ingvoldstad would have been discharged even
in the absence of the protected conduct . The justification
offered by Respondent is totally insufficient to support
that burden.
In these circumstances , there actually was no valid jus-
tification for the discharge . Accordingly , I conclude that
Ingvoldstad was actually discharged for engaging in ac-
tivity that was both protected and concerted and that the
Respondent has violated Section 8(a)(3) of the Act.
B. Holland 's Discharge
The General Counsel contends that Holland was dis-
charged because she attempted to distribute union pam-
phlets on August 20, the day preceding the election. Re-
spondent contends that Holland was discharged for leav-
ing her assigned work area and her unauthorized use of a
public telephone , together with the fact that she was a
probationary employee with a prior disciplinary action
notice in her personnel file.
It is undisputed that Holland was active on behalf of
the Union 's organizational effort and that Respondent
was aware of her sentiments . Indeed , Holland was sin-
gled out by Marvin Zetley in ordering her to remove a
union button.
The record discloses that after Holland arrived at the
facility, she distributed some pamphlets; went to her
floor to work; left the floor for a short time ; got more
pamphlets and returned once again to her floor. She was
followed by Fisher who uncovered and read the pam-
phlets which had been hidden under the linens on Hol-
land's linen cart. The precipitous discharge of Holland so
soon after Fisher 's discovery makes suspect the reasons
advanced by Respondent for her discharge, particularly
in view of the relatively minor infraction for which she
was allegedly discharged . Certainly, Respondent had a
right to expect employees to remain in their work areas,
particularly at shift-change time , but an absence of a few
minutes is hardly a major infraction, even in combination
with the use of the telephone on other than breaktime.
These do not constitute major transgressions . Nonethe-
less, Fisher's first instinct was to discharge Holland and
he reacted by calling the personnel officer, confirming a
prior disciplinary action; confirming that Holland was
still in her probationary period, and summarily discharg-
ing her.
It is more reasonable to infer that Fisher, after having
discovered the antiunion pamphlets on Holland's linen
cart, must have surmised that they were intended for dis-
tribution . There would be no other logical explanation
for the presence of union pamphlets secreted on her linen
cart. One would have been sufficient for Holland. Con-
fronted with this on the day before the election, Fisher
decided to solve the problem by discharging Holland.
The fact that she was in her probationary period and had
been issued a prior disciplinary warning was fortuitous
from Fisher's point of view since it suggested an appar-
ent justification for the discharge . However, I do not
find these factors controlling since even considering
them, the offenses for which she was discharged were
too insignificant to explain the discharge in light of other
circumstances set out above , and the Respondent's strong
antiunion bias as evidenced by the other acts of coercion,
interference and discrimination found herein.
Thus we are left with circumstances wherein we have,
as noted above, a pro-Respondent employee, Dobson,
distributing pro-Respondent pamphlets during worktime
on company property. Having known of this activity,
Respondent could not at the same time prohibit union
employees from making similar distributions of prounion
literature . Holland was discharged because she had pam-
phlets in her possession which Respondent could reason-
ably have assumed were going to be distributed. Such
disparate enforcement of the ban on solicitation is unlaw-
ful. It follows that a discharge for either possession of or
distribution of prounion literature , while at the same time
allowing the distribution of antiunion literature, is unlaw-
ful. Pilliod of Mississippi, 275 NLRB 799 (1985); St. Vin-
cent's Hospital, 265 NLRB 38 (1982). Accordingly, I con-
clude that by discharging Holland , Respondent violated
Section 8(a)(3) of the Act.
I also conclude that any reliance on Holland's miscon-
duct to support a Wright Line1O rationale is misplaced,
specifically where her misconduct was minimal. I am sat-
isfied , based on the record herein , that the General
Counsel has made a prima facie showing sufficient to
support the inference that Holland's protected conduct
was a "motivating factor" in Respondent 's decision to
discharge Holland and that Respondent has not met its
burden of demonstrating that Holland would have been
discharged even in the absence of that protected con-
duct.
C. Wilber's Discharge
The General Counsel takes the position that Wilber
was discharged because of her union sentiments. Re-
spondent contends that Wilber was discharged because
she was unable to perform the serving line assignment
she was given . The record in this case dealing with Wil-
ber's discharge convinces me the General Counsel
should prevail.
As noted earlier in that section of this decision dealing
with the 8(a)(1) allegations , Wilber's union sentiments
9 Wright line, 251 NLRB 1083 ( 1980). 10 Wright Line, supra.
FAMILY NURSING HOME 931
were given special attention during election week. She
was interrogated by Wentz and later by Karlinsky. She
responded to Karlinsky that she had been visited by a
union representative at her home who had answered
questions to her satisfaction . In this same conversation
Wilber was unlawfully threatened with more burden-
some working conditions and discharge if the Union won
the election and a strike ensued . This evidence suggests
that Wilber's union sentiments were at least suspect, and
Wentz ' remarks to Chapman that Respondent was look-
ing for the union adherents in order to discharge them
leaves little doubt of Respondent 's antiunion animus.
Turning to the incident itself, the credible evidence
shows that Wilber was ill . However, she did not ask to
leave , but simply if she could do another job on the tray
line. This accommodation had been made before, both
for Wilber and other employees . However, on this occa-
sion , Wentz, rather than switching her to another job,
told her that if she could not do the specific serving job
assigned to her, she was to punch out. No consideration
was given to her illness . No effort was made by anyone
to inquire about or to verify her illness . Indeed , accord-
ing to Karlinsky , it would not have mattered whether
she was ill or not . She would have been discharged
simply because she could not do the job assigned to her,
illness or not.
A review of Wilber 's work record discloses no prior
warnings or disciplinary action and no one had previous-
ly spoken to her concerning her absences or leaving the
job. It appears that other employees , including proba-
tionary employees , had been issued written warnings
prior to their discharges . In addition , Wilber was con-
cededly a good worker who had been complimented by
her superiors and who had been promised raises in the
future and had, during the course of her employment,
worked overtime and worked on some of her scheduled
days off. t t Despite this commendable work record,
Wilber was precipitously discharged on the last day of
her probationary period for being unable to perform a
specific serving line task when normally an accommoda-
tion would have been made by assigning her to another
serving line task . In these circumstances , it is clear to me
that Respondent seized upon this incident as a pretext to
discharge her and that the real motive for Wilber's dis-
charge was retaliation for her prounion sentiment.
V. OBJECTIONS TO ELECTION
The objections herein are subsumed within the allega-
tions of the complaint. Accordingly, to the extent that I
have found merit to the unfair labor practice allegations,
I also conclude that objections based on such misconduct
are sufficient to warrant setting aside the August 21,
1987 election. It is therefore recommended that the
Board set aside the August 21, 1987 election and remand
Case 30-RC-4693 to the Regional Director for Region
30 for the purpose of conducting a new election at such
I I Respondent's contention that Wilber had developed a "pattern" of
illness on weekends, which was a factor in her discharge, is simply not
supported by the record. Timecards, which would have supported this
contention , were never offered by Respondent.
time as he deems the circumstances permit the free
choice of a bargaining representative.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I above, have a close and inti-
mate relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. I have found that Respondent discharged Karen
Ingvoldstad, Ann Wilber, and Marilyn Holland for rea-
sons which offended the provisions of Section 8(a)(3)
and (1) of the Act. I shall recommend that the Employer
make Ingvoldstad and Wilber whole for any loss of pay
they may have suffered as a result of the discrimination
practiced against them. However, with respect to Hol-
land, I conclude that reinstatement and backpay are not
appropriate. Unlike the General Counsel, I conclude that
her misconduct was sufficiently egregious to render her
unfit for future employment with Respondent. Roure
Bertrand Dupont, 271 NLRB 443 (1984). Respondent is
responsible for the care of the elderly and infirm. Hol-
land's hostile personality, as demonstrated by the miscon-
duct, is not compatible with that undertaking. All back-
pay and reimbursement provided herein, with interest,
shall be computed in the manner described in New Hori-
zons for the Retarded12 and F. W. Woolworth Co., 90
NLRB 289 (1950).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. By discharging Karen Ingvoldstad , Ann Wilber, and
Marilyn Holland, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
12 In accordance with the Board's decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987,
shall be computed at the "short-term Federal rate" for the underpayment
of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest
on amounts accrued prior to January 1, 1987 (the effective date of the
1986 amendment to 26 U.S C § 6621), shall be computed in accordance
with Florida Steel Corp., 231 NLRB 651 (1977).
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent , Family Nursing Home and Rehabili-
tation Center , Inc., Milwaukee , Wisconsin , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining or enforcing any rule,
regulation or other prohibition which forbids the wear-
ing of union insignia outside of immediate patient care
areas or outside other specifically identified areas where
the wearing of union insignia would adversely affect pa-
tient care.
(b) Granting wage and bonus incentives to its employ-
ees in order to discourage support for the Union.
(c) Interrogating employees about their union senti-
ments or activities.
(d) Threatening to delay wage increases to employees
if they select union representation.
(e) Threatening to eliminate paid holidays if the em-
ployees select union representation.
(f) Threatening to eliminate overtime work for part-
time employees if the employees select union representa-
tion.
(g) Threatening to eliminate meal privileges if the em-
ployees select union representation.
(h) Threatening to issue written warnings to employ-
ees for minor infractions if the employees select union
representation.
(i) Threatening employees with immediate discharge if
they engaged in a strike after selecting union representa-
tion.
(j) Threatening to seek out and discharge employees
for distributing union literature.
(k) Discharging employees , thereby discriminating in
regard to their hire and tenure of employment in order
to discourage membership in Local 150 , Service Em-
ployees International Union, AFL-CIO-CLC, or any
other labor organization.
(1) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Karen Ingvoldstad and Ann Wilber imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equivalent em-
ployment and make them whole for any loss of pay they
may have suffered as a result of the discrimination prac-
ticed against them in the manner set forth in the remedy
section of the decision.
(b) Expunge from its files any reference to the dis-
charges of Karen Ingvoldstad , Ann Wilber and Marilyn
Holland , and notify them in writing that this has been
done and that evidence of these unlawful discharges will
not be used as a basis for future personnel action against
them.
(c) Preserve and , upon request , make available to the
Board or its agents for examination and copying all pay-
roll records , social security records and reports , and all
other records necessary to analyze the amount of back-
pay due herein.
(d) Post at its Milwaukee , Wisconsin facility copies of
the attached notice marked "Appendix ." 14 Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being signed by Respondent 's authorized
representative , shall be posted by it immediately on re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including places where notices to employees
are customarily posted . Reasonable steps shall be taken
to ensure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election held
on August 21, 1987, in Case 30-RC-4693 is hereby set
aside and the case remanded to the Regional Director
for Region 30 to conduct a new election when he deems
that the circumstances permit the free choice of a bar-
gaining representative.
19 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
14 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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."