Garrard Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1972

199 N.L.R.B. 711 (N.L.R.B. 1972)

GARRARD CONVALESCENT HOME
Garrard Convalescent Home , Incorporated and Na-
tional Union of Hospital and Nursing Home Em-
ployees, Local 1199H , Retail, Wholesale and
Department Store Union, AFL-CIO. Case 9-
CA-6534
October 12, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On May 31, 1972, Administrative Law Judge'
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, both the General
Counsel and Respondent filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 2 and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge, and to adopt his recommended Order,4 except
as modified herein.
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(3) and
(1) of the Act by discriminatorily discharging employ-
ees Lula Hurry and Ethel Smith,' but that the dis-
charge of Juanita Smeal did not violate the Act .6 In
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
D The General Counsel has excepted to the Administrative Law Judge's
refusal to accept his brief because it was received I day after the due date
set by the AU The General Counsel ' asserts that he mailed the bnef on
Friday, May 5 , 1972, and that in due course of the mails it should have been
received in Washington on Monday , May 8 . However , the brief was not
received until the afternoon of May 9 and, therefore , was rejected and re-
turned by the ALJ In this case, it appears to us that it was reasonable for
the General Counsel to assume that in the normal operation of the mails,
even over a weekend, the 3 day mailing period would be sufficient for the
brief to be timely received As the delay in receiving the brief appears not
to be attributable to the General Counsel and no one would be prejudiced
by its acceptance , we have received the bnef and have given it full considera-
tion herein.
' The Respondent 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.
4 In view of the 8(a)(1) and (3) violations committed by Respondent, we
believe a broad order is appropriate. We shall accordingly amend the Order
recommended by the Administrative Law Judge.
'In adopting the ALJ's findings that these discharges violated the Act, we
also rely on the fact that Supervisor Lorene McClenney told employee Judy
Guy, 2 days after Hurry and Smith were discharged, that Respondent had
already "gotten rid" of the employees it knew had been causing all the
trouble
6 Inasmuch as we do not find that the record supports the General
711
addition, we agreee with the ALJ's findings that Re-
spondent engaged in certain conduct in violation of
Section 8(a)(1).
2. The ALJ also found that employee Judy Guy
was discharged for failing to report to another of
Respondent's nursing homes as ordered, and, there-
fore, that her discharge did not violate the Act. We
disagree. In our opinion, the reason given by Respon-
dent for her discharge was pretextual, and we find
that she was actually discharged for her union activi-
ties, in violation of Section 8(a)(3) of the Act.
Respondent, and the Daly Park and Avon
homes , incidentally involved herein , are nursing
homes in the Cincinnati metropolitan area owned by
Keller Nursing Homes. The facts show that Judy Guy
was employed by Respondent as a nurse's aid, and
had signed an authorization card on or about August
15, 1971.On August 18, 2 days after employees Hurry
and Smith were discharged, Guy was told by her su-
pervisor, Lorene McClenney, that Respondent knew
which employees had signed cards, that it knew that
Guy had signed a card, and that Guy would be fired
because she had signed the card. McClenney further
told Guy that she could protect her job by signing a
statement disavowing her support for the Union'
Early in September 1971, when the Daly Park
home had labor trouble, Respondent's administrator,
Clifford Montgomery, asked Guy to work at that
home for 1 day and she agreed. Montgomery drove
Guy and two other nurses aides to the home, but when
Guy saw that she had to cross a picket line, she, ac-
cording to the Administrative Law Judge, "protested
mildly." In any event, she and the other aides did
work behind the picket line for that day.
A labor dispute also developed in September at
the Avon home, located in Cincinnati.' On Monday,
September 13, Montgomery told Guy that she had
been selected for transfer to that home along with
nurses aide Frances Mann because of a shortage
caused by the dispute. The record shows that because
Guy informed Montgomery that she did not know
how to get to the home and had no means of transpor-
tation, it was arranged that she would ride with Mann.
However, when Guy did not receive a message as to
the time she would be picked up, she telephoned the
home to attempt to reach Mann and spoke with the
Counsel's contention that Smeal 's layoff on August 11, 1971, violated the
Act, we find that the Administrative Law Judge' s denial of the General
Counsel's motion to so amend the complaint was not prejudical.
7 McClenney told Administrator Montgomery about the cards upon his
return from vacation on August 17. Montgomery then told McClenney that
the employees could purge themselves if they came forward , admitted their
guilt, and tore up the cards they had signed; that if the Union got into the
nursing home, there was a possibility that it would be closed down; that
employees who wanted to stick with the Union would lose their jobs; and
that she should relay all this information to the employees, which she did.
The ALJ found such conduct to be violative of Section 8(a)(I) of the Act
8 Respondent is located outside of Cincinnati in Covington , Kentucky.
199 NLRB No. 94
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receptionist , Montgomery' s wife . Guy asked her
whether she should report to Respondent the next
morning, but Mrs. Montgomery replied that she was
no longer employed at Respondent, and that she was
to go to the Avon home or was fired. Guy then spoke
to Mr. Montgomery who confirmed these statements,
but would not give her a reason for her discharge,
saying that was up to the owner of Respondent. As a
result , Guy did not report to the Avon home that
evening.
Respondent asserts that Guy was discharged
solely for her failure to work at the Avon home as
directed and the Administrative Law Judge agreed. In
reaching this conclusion, he stated that Guy had
"willingly" worked behind a picket line before, and
that when McClenney told her she was to be fired for
signing a card, McClenney was not speaking for Re-
spondent.
In our opinion , neither reason relied on by the
ALJ is supported by the record. First of all, it is clear
that although Guy did cross the picket line at Daly
Park, she had no choice and did voice her opposition
to doing so. Secondly, the ALJ's finding that Mc-
Clenney was not speaking for Respondent is incon-
sistent with his finding that McClenney is a supervisor
and that Montgomery did in essence, tell McClenney
to relay such a statement to the employees. To us, it
is clear that Respondent, in requiring that Guy had to
work at Avon in order to retain her job, was imposing
an unreasonable burden on her which it knew she
could not fulfull, and was really carrying out its threat
to discharge those who had signed cards. While
Respondent's method of discharging Guy was more
subtle than that utilized in terminating Hurry and
Smith, we are convinced that the fact that she did not
report to the Avon home was a pretext for her dis-
charge, and that she was really discharged for being
a known union adherent in violation of Section 8(a)(3)
and (1) of the Act. Accordingly, we shall order that
Respondent offer Guy immediate and full rein-
statement to her former job, or if that job no longer
exists, to a substantially equivalent position, and
make her whole by payment of a sum equal to that
which she normally would have earned from the date
of the discrimination to the date of offer of rein-
statement, less her net earnings during that period.
The backpay provided herein shall be computed in
accordance with our formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, with interest theron at
the rate of 6 percent per annum in the manner pre-
scribed in Isis Plumbing & Heating Co., 138 NLRB
716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent , Garrard
Convalescent Home, Inc., Covington, Kentucky, its
officers, agents , successors , and assigns, shall take the
action set forth in the said recommended Order, as
modified herein.
1. Substitute "In any other" for "In any like or
related" in paragraph 1(f).
2. Substitute "Offer Lula Hurry, Ethel Smith, and
Judy Guy" for "Offer Lula Hurry and Ethel Smith"
in paragraph 2(a).
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by dis-
charging Lula Hurry, Ethel Smith, and Judy Guy in
order to discourage your union activities, we hereby
notify you that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge you in order to dis-
courage your union activities.
WE WILL NOT threaten to close the Garrard
Street home if you organize for purposes of col-
lective bargaining.
WE WILL NOT threaten you with loss of your
jobs for engaging in union activities.
WE WILL NOT instruct you to come forward,
admit your guilt in signing authorizations cards
for a union, and tear them up in order to protect
your jobs.
WE WILL NOT urge you to sign statements dis-
claiming your, union activities.
WE WILL NOT, in any other manner, interfere
with you or attempt to restrain or coerce you in
the exercise of the above rights.
WE WILL offer Lula Hurry, Ethel Smith and
Judy Guy immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
GARRARD CONVALESCENT HOME
to substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges , and make them whole for any earnings
they lost as a result of their discharges on August
16, 1971, plus 6 -percent interest.
All our employees are free to join National Un-
ion of Hospital and Nursing Home Employees, Local
1199H, Retail , Wholesale and Department Store Un-
ion, AFL-CIO, or any other labor organization.
GARRARD CONVALESCENT HOME,
INCORPORATED
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Federal Office Building , Room 2407,
550 Main Street, Cincinnati, Ohio 45202 , Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner : The charge
in this case was filed on October 18, 1971.1 The complaint
was issued on December 8. The hearing was held on Feb-
ruary 23 and March 21 , 1972, in Cincinnati, Ohio. The
complaint alleges violations of Section 8(a)(3) and ( 1) of the
National Labor Relations Act, as amended, in that Respon-
dent discriminatorily discharged four employees . It also al-
leges various independent violations of Section 8(a)(1). For
the reasons set forth below , I find for the General Counsel
with respect to the discharges of Lula Hurry and Ethel
Smith , for Respondent with respect to the discharges of
Judy Guy and Juanita Smeal . I also find some, but not all,
of the independent 8(a)(1) violations alleged in the com-
plaint.
Upon the entire record, including my observation of
the demeanor of the witnesses , and after due consideration
of Respondent's brief, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent, a Kentucky corporation , operates a pro-
prietary nursing and convalescent home on Garrard Street
1 Dates, except the date of the hearing, are all 1971.
713
in Covington , • Kentucky, just across the Ohio River from
Cincinnati , Ohio . During the year prior to the issuance of
the complaint herein , its gross revenue exceeded $ 100,000
and it purchased goods valued in excess of $5,000 which
were shipped directly to it from points outside Kentucky. It
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act . The Charging Party is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Facts
1. Events culminating in the discharges of Lula Hurry
and Ethel Smith
Respondent is one of a number of nursing homes in
the Cincinnati area owned by a man named Keller and
known jointly as Keller Nursing Homes . In August, appar-
ently in the latter part of the week which began on Monday,
August 2, a story appeared in a Cincinnati newspaper about
the Charging Party's campaign , then 3 months old, to or-
ganize nursing homes in the Cincinnati area . The story men-
tioned wages of $2.50 an hour as one of the goals of the
union organizers. Donald Reckner is operations manager of
Keller Nursing Homes. Clifford Montgomery is administra-
tor and Betty Smiley is director of nursing of Respondent;
i.e., they are the two top supervisors at the Keller nursing
home involved in this case . All were aware of the newspaper
story and thus of the fact that Keller nursing homes were
likely targets of a union organizing campaign when the
following events began . The Keller policy is to oppose or-
ganization of the employees in its nursing homes.
A week or so prior to Saturday , August 14, Mrs. Smiley
found an anonymous note clipped to her timecard when she
arrived at the home . It read:
This note is from all employees . We all wants $2.00
hr. If not we going to walk out.
She pinned it to the bulletin board over the timeclock.
On Wednesday , August 11, employees Lula Hurry,
Ethel Smith, Juanita Smeal , Frances Mann , and Linda Rob-
bins were gathered around a clipping of the newspaper story
at the nurses station on the second floor of the home when
Mrs. Smiley came up the stairs. Mrs. Smeal was a house-
keeper . The other four were nurses aides. Mrs. Smeal was
trying to look up, in a local telephone book, the Charging
Party's national executive vice president who was named in
the story. When Mrs. Smiley appeared , Mrs. Smeal dropped
the telephone book on the floor, and the five employees
scattered . Frances Mann took the clipping with her. Mrs.
Smiley went into a patient's room on the second floor. A few
minutes later, when she came out, she went to each of the
employees working on the second floor and asked them for
their telephone numbers . That evening Mrs. Smiley tele-
phoned Mrs. Smeal at home and suspended her for 7 work-
ing days for "sloppy appearance , dirty uniform, hair dirty
looking , unkept, long dirty fingernails."
Mrs. Smeal utilized the yellow pages of the telephone
book and eventually made contact with the Charging Party.
Arthur Bivins , an organizer for the Charging Party, invited
her to come to the office and bring a couple of other em-
ployees with her. She did so on Friday, August 13. Lula
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hurry and Linda Robbins went with her . Bivins explained
the Charging Party's campaign and the techniques of organ-
izing to them . Each signed an authorization card and gave
it to Bivins . Each took a supply of blank authorization cards
from Bivins to use in trying to sign up Respondent 's other
employees . Bivins said he would come to the home on Sun-
day, August 15, to pick up executed cards. They told him
to ask for a patient named Elizabeth Jones in order to get
in. Because she was on suspension and thus would not be
in the home the next 2 days , Mrs. Smeal gave her supply of
blank cards to Mrs. Hurry.
Lula Hurry and Linda Robbins signed up a number of
Respondent's employees on Saturday, August 14, and Sun-
day, August 15. The record does not indicate exactly how
many. Among those who signed an authorization card were
Ethel Smith and Judy Guy, another nurses aide. Bivins
came to the home on Sunday afternoon as planned, asked
at the reception desk for Elizabeth Jones as instructed, was
admitted without question , picked up executed cards from
Lula Hurry and Linda Robbins, and left without incident.
Meanwhile, on Saturday, August 14, Frances Mann
asked to speak to Betty Smiley in the latter 's office. She
brought with her a second anonymous note . She said that
another nurses aide had brought it to her home the day
before and asked her to clip it to Mrs. Smiley 's timecard.
She said she was upset . She said she felt Mrs . Smiley ought
to know about the note, although she would not name the
person who gave it to her. She gave the note to Mrs. Smiley.
It read:
If you don't see to it that we get our raise , we'll see to
it that you get the "HELL" beat out of you. "Your days
are numbered." "You haven't very long." So get on the
ball, before we get you.
Mrs. Smiley attempted to reach Donald Reckner by
telephone . However, before he received the message to re-
turn her call, he arrived at the home for a periodic, unsche-
duled inspection . Mrs. Smiley gave both of the anonymous
notes she had received to Reckner. Reckner took them to
the Covington police station . He discussed with the police
the possibility of swearing out warrants for the person or
persons who wrote the notes . He did not swear out warrants.
When Reckner returned to the home , he prepared a notice
which read:
To: All Employees
From: Administration
It has come to the attention of this office that a threat-
ening note has been given to the Director of the Gar-
rard Nursing Home. The Covington Police De-
partment has been advised of this situation.
If the personnel involved are identified or if any further
threats (in any way) are made to any employee, I can
assure you that a warrant will be issued for the arrest
of the personnel involved.
Reckner also inspected the home on Saturday , August
14. He filled in a checklist called a "Nursing Home Survey
Report." He wrote a note intended for Clifford Montgom-
ery, administrator of the home who was on vacation at the
time . It read:
Patient Care
The deficiencies listed below are to be corrected imme-
diately. You are to take whatever steps necessary to see
that these conditions are corrected and they are never
found in this facility again . I suggest you make some
personnel changes as soon as possible.
(1) Your nursing personnel are SLOPPY in ap-
pearance.
(2) Patients are not kept clean.
(3) Foot care is not given by your aides.
(4) Patient appearance is below standards.
(5) Aides are rude to patients.
(6) No mouth care given by your aides.
Your non-professional nursing staff is giving verypoor
nursing care.
Reckner conducted a meeting of employees on Mon-
day, August 16. He read to them the two anonymous notes
received by Mrs . Smiley . He told them Mrs. Smiley had
found the notes clipped to her timecard. He said he had
been to the police station and the police had advised him
to take out a warrant for the culprit if he found out who it
was. He said he was not going to do it but if it ever happened
again he would take out a warrant . He read the employees
the notice he had prepared on Saturday and, after the meet-
ing was over , posted it on the bulletin board. He did not
mention his Saturday inspection or his criticisms growing
out of it to the employees.
After the meeting , Reckner went to an office in the
home . A short time later he summoned Lula Hurry and
Ethel Smith and discharged them . He refused to give them
a reason for their discharges. When they asked him for the
reason , he replied, "I could tell you it is because I don't like
your uniforms or because you want $2 an hour. I said punch
your cards , you are through ." (I do not credit Reckner's
denial that he made this statement or his testimony that he
told Mrs . Hurry and Mrs . Smith he was terminating them
for improper and ineffective work habits.)
2. Events following August 16
and preceding the discharge of Judy Guy
Lorene McClenney is a licensed practical nurse. Dur-
ing the times relevant to this case she was employed by
Respondent as charge nurse on the second shift. Sometime
in July, Clifford Montgomery called her into his office and
told her about the campaign to organize nursing homes in
the Cincinnati area. He told her the Union might try to
contact the nursing homes across the river from Cincinnati
in Kentucky. He told her to keep the doors of the Garrard
home locked and, if anybody came, to make them identify
themselves before they came in. On August 15, apparently
after Arthur Bivins had left, several of the employees on
Miss McClenney 's shift told her that he had been in the
home to pick up authorization cards.
After the August 16 meeting, either that evening or the
following evening but, in any event , before she talked to
Montgomery on his return from his vacation , employees on
1
GARRARD CONVALESCENT HOME 715
her shift came to her and said they were concerned about
theirjobs because they had signed authorization cards. She
told them they probably could lose their jobs.
When Montgomery returned from vacation on Tues-
day, August 17, Miss McClenney told him about Bivins'
visit and what the employees had said to her about their
concerns . Montgomery told her that the employees could
purge themselves if they came forward, admitted their guilt,
and tore up the cards they had signed. He told her that there
would have to be an election anyhow and that, if the em-
ployees did not vote for the Union, that would be all there
would be to it. He told her that if the Union got.into the
nursing home, there was a possibility it would be closed
down. He told her the patients would be moved out to other
Keller nursing homes in the area, the employees who want-
ed to work would be transferred with them, but the employ-
ees who wanted to go with the Union would lose their jobs.
Montgomery told Miss McClenney to relay all this informa-
tion to the employees. She did so. (I do not credit
Montgomery's version of his conversation with Miss Mc-
Clenney when he returned from vacation.)
Frances Mann and Linda Robbins told Miss McClen-
ney that they had followed her instructions and gone to
Montgomery. The record does not reveal what was said
when they did so.
Later on August 17 Montgomery discussed the situ-
ation with a group of registered and licensed practical nurs-
es during a nursing conference. In the course of the
conversation, Montgomery said that, if the Union got in, the
home just could not operate, it would be closed down, and
the patients would be moved out.
On August 18 Judy Guy had a series of conversations
with Lorene McClenney. In the first one, Miss McClenney
asked Mrs. Guy whether she had signed an authorization
card. Mrs. Guy said she had not. Miss McClenney said Mrs.
Guy might as well admit it because Miss McClenney knew
that she had. Mrs. Guy repeated her denial. Miss McClen-
ney said, "I've seen the union card. I know you signed it.
Mrs. Smiley said to tell you girls that if you didn't sign a
union card all you have to do is sign a piece of paper stating
`I, Judy Guy, had nothing to do with the union or talk of
a walk-out.' " As she made this statement, Miss McClenney
demonstrated with a piece of paper what Mrs. Guy should
do. (I credit the denial of Mrs. Smiley, whom I found to be
a generally credible witness, that she gave any such instruc-
tions to Miss McClenney. In any event, there is no direct
evidence in the record that she did so. The hiatus in the
hearing in this case was caused by the illness of Mrs. Guy.
When Miss McClenney testified as a witness for the General
Counsel on February 23, 1972, she was not asked about
conversations with Mrs. Guy. After Mrs. Guy testified on
March 21, Miss McClenney was not recalled either to corro-
borate or refute her testimony. The significance of this part
of Mrs. Guy's testimony, and the reason I credit her testi-
mony that Miss McClenney spoke to her in this vein, is not
that Miss McClenney mentioned Mrs. Smiley but that she
demonstrated a technique by which employees could purge
themselves of the guilt of having engaged in union activities
that was consonant with Montgomery's instructions to Miss
McClenney on August 17.)
Miss McClenney said Mr. Keller said employees who
signed such a paper would be guaranteed a job if he had to
close the Garrard home and he would do it before he let the
Union in, adding, "You might as well sign this, Judy, be-
cause when you signed this union card you signed your life
away." Miss McClenney went on, "If you can find another
job you better look for it. I can name everyone of you that
signed a union card and every one of you that didn't." Mrs.
Guy insisted again that she had not signed an authorization
card. Miss McClenney said, "Judy, you know you did. It has
your name, your address, and your phone number on it."
Mrs. Guy exchanged a few whispered, laughing words
with another employee, Jewell Knight, about whether Miss
McClenney really knew that they had signed cards. Miss
McClenney said, "Well, Judy, I know you signed the union
card. You can tell by the look on your face that you're guilty
and that you signed it." Mrs. Guy asked how she had found
out. Miss McClenney said she had been told. Mrs. Guy
asked by whom. Miss McClenney said, "You know I won't
tell you. You know these girls trust me and that they will tell
me."
Mrs. Guy said, "I didn't sign one. I wouldn't be stupid
enough to sign one knowing I'd lose my job ." Miss Mc-
Clenney sent Mrs. Guy back to work.
Some 20 minutes later, Mrs. Guy encountered Miss
McClenney again . Miss McClenney asked Mrs. Guy if she
would like Miss McClenney to name the girls who had
signed cards. Mrs. Guy told her to go ahead. Miss Mc-
Clenney named the following card signers among others:
Judy Guy, Juanita Smeal, Ethel Smith, Frances Mann, Lin-
da Robbins, Lula Hurry, and Jewell Knight. As nonsigners
she named, among others, Christine Hayden, Zera Mahone,
Alberta Varner, Bernice Wilson, and Nancy Brewer. The
only one she got wrong was Nancy Brewer, who had signed
a card. Miss McClenney then said Respondent had already
gotten rid of the ones it knew had been causing all the
trouble, that is, Lula Hurry and Ethel Smith.
Still later that evening, Mrs. Guy asked Miss McClen-
ney if she really meant that Mrs. Guy was going to be fired.
Miss McClenney said, "Yes, Judy, Mr. Montgomery knows
every one of you that signed a union card. If you can find
another job, you had better find it because you're going to
be fired. You thought you all were pretty smart letting that
colored man come in here saying he was visiting Elizabeth
Jones. We knew he was a union man when he came in.
That's where you made your first mistake, was having a
union man come on the property."
On several occasions in the period of a day or two
following August 18 Miss McClenney asked Mrs. Guy how
many employees were supporting the Union. Mrs. Guy said
she did not know.
Early in September labor trouble erupted at a Keller
nursing home in Cincinnati known as Daly Park. Around
September 3, Montgomery asked Mrs. Guy if she would be
willing to go to Daly Park to help out. She agreed. Mont-
gomery drove Mrs. Guy and two other nurses aides to Daley
Park. Mrs. Guy protested mildly at crossing the picket line
which had been set up. However, she crossed it with Mont-
gomery and the other two women and"worked behind it all
day. The next working day she was back at Garrard.
3. The discharge of Judy Guy
Trouble also developed in September at a Keller nurs-
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing home in Cincinnati known as Avon. (The Charging
Party in this case filed a charge in Avon Convalescent Center,
Inc., Case 9-CA-6316, , on June 11. However, the only
unfair labor practice alleged was surveillance on or about
June 7. Complaint issued on August 27. On October 14,
Service, Hospital, Nursing Home & Public Employees Un-
ion Local 47, Service Employees International Union,
AFL-CIO, filed a charge against Avon in Case 9-CA-6529.
The complaint, which issued on December 2, alleged 14
discriminatory discharges, 1 on August 26 and 13 in Octo-
ber. The two Avon cases were consolidated, and a hearing
was held in Cincinnati before Trial Examiner William
Feldesman several weeks before the hearing in this case.)
On Monday, September 13, Montgomery told Mrs. Guy
that she had been selected for transfer to Avon along with
Frances Mann because of the shortage of help caused by the
labor dispute there. They were to report at Avon at 11:30
p.m. on Tuesday, September 14. Since Mrs. Guy had no
transportation to the Avon home, it was arranged that Mrs.
Mann would drive her. They were to meet at the Garrard
home at a mutually convenient time and go on from there.
Mrs. Guy was to call the Garrard home during the day on
Tuesday to find out what time she was to meet Mrs. Mann.
On Tuesday, September 14, Mrs. Guy failed to receive
a message that she was supposed to meet Mrs. Mann at
10:30 p.m. (Montgomery's wife testified that she relayed
Mrs. Mann's message to Mrs. Guy on the afternoon of
September 14. Mrs. Guy testified that she first learned of the
10:30 rendezvous time when Mrs. Mann called her around
midnight to find out why she had not shown up. I credit
Mrs. Guy over Mrs. Montgomery although, in my opinion,
it is unimportant whether Mrs. Guy failed to get to Avon
because of a mixup or because of a deliberate decision not
to go. My findings as to what happened on September 13
and 14 are based on the testimony of Mrs. Guy rather than
the testimony of Mr. and Mrs. Montgomery where the two
versions are in conflict.) Around 4:30 p.m. Mrs. Guy called
the home and talked to Marguerite Montgomery, the wife
of the administrator and herself a secretary-receptionist.
When Mrs. Montgomery told her that Mrs. Mann had not
called with word when they were to meet that night, Mrs.
Guy asked if she was to come to work at Garrard on Wed-
nesday morning. (Mrs. Guy had been assigned to the day
shift at Garrard for the week of September 12.) Mrs. Mont-
gomery told her no, adding, "You are no longer employed
at Garrard Street. You are to go to Avon or you're fired."
Mrs. Guy asked why she was fired. Mrs. Montgomery said
she did not have to give any reason, the decision came from
the main office, and if "they" wanted to fire you, "they"
fired you. Mrs. Montgomery put her husband on the line.
Mrs. Guy asked him how long she would have to work at
Avon. Montgomery told her for a couple of nights until the
trouble Avon was having with some of its girls was over.
Mrs. Guy asked if she would come back to Garrard at that
time . Montgomery said, "No, you'll go wherever they send
you." Mrs. Guy asked why she had been fired. Montgomery
said, "I have no reason. That is up to Mr. Keller."
me this afternoon ." She explained to Mrs. Mann that she
had not gotten a sitter to stay with her daughter because of
the mixup over how she was to get from her home in New-
port, Kentucky, to the Avon home in Cincinnati.
Mrs. Mann decided not to go to Avon by herself. The
next day Montgomery fired her also for not reporting to
Avon as ordered.
4. The discharge of Juanita Smeal
As already noted, Juanita Smeal was suspended for 7
days on August 11. She returned on August 23 and worked
without incident until September 6. At that time, by ar-
rangement with Mrs. Smiley, she took off for 2 weeks in
order to visit Hawaii. One week was her vacation and the
other a leave of absence. She returned home on Friday
evening, September 17.
When Mrs. Smiley prepared the schedule for the week
beginning Sunday, September 19, she listed Mrs. Smeal as
being off on Sunday and Monday, then as working from 8
a.m. to 4:30 p.m., Tuesday through Saturday. Mrs. Smeal
called the home on Sunday evening, September 19, and
spoke to Miss McClenney. Miss McClenney told Mrs.
Smeal that Mrs. Smiley had said Mrs. Smiley had put some-
body else in Mrs. Smeal's place and no longer needed her.
Apparently Miss McClenney did not look at the schedule
which was posted in the home. (Once again, I credit Mrs.
Smiley's denial that she said any such thing to Miss Mc-
Clenney. Miss McClenney testified after Mrs. Smeal on
February 23, 1972. However, she was not asked about a
telephone conversation with Mrs. Smeal on September 19,
either by the General Counsel or Respondent. Therefore,
there is neither corroboration nor refutation in the record
of Mrs. Smeal's account of her call. Since counsel for the
General Counsel elected not to ask Miss McClenney wheth-
er Mrs. Smiley had given her such a message for Mrs. Smeal,
I infer that her answer would not have supported the Gener-
al Counsel's" case.)
Mrs. Smeal did not report for work as scheduled on
Tuesday, September 21, and Wednesday, September 22.
Each day, Mrs. Smiley marked her absent on the schedule.
She made no effort to contact Mrs. Smeal. On the latter
date, Mrs. Smiley concluded that Mrs. Smeal was not com-
ing back and took her off the schedule for the remainder of
the week. Mrs. Smiley reported what had happened to
Montgomery. Montgomery submitted the following report
to Keller Nursing Homes:
EMPLOYEE NAME: Smeal. Juanita
(Please check correct one)
Leave of
Quit [ X] Fired [ ] Absence [
Mrs. Mann telephoned Mrs. Guy at home near mid- Reason for termination
night on September 14. Mrs. Mann said she was waiting for
Mrs. Guy at Garrard and asked Mrs. Guy if she was ready
didn 't return after 1. o. a.to go to work. Mrs. Guy said, "No, Mr. Montgomery fired
GARRARD CONVALESCENT HOME 717
As of this date 9-21 19 71 , the
above named employee' has left our
employ for reason stated . Please
remove employee from our Payroll
records.
GARRARD
Nursing Home
Is/ C.H. Montgomery 9/24/71
Administrator Date
B. Analysis and Conclusions
1. The supervisory status of Lorene McClenney
Respondent denies that Lorene McClenney, who is no
longer employed by Respondent, was a supervisor within
the meaning of the Act during the period relevant to this
case. The only evidence in the record bearing on this issue
is the testimony of Miss McClenney herself. She testified
credibly that she was in charge of the second shift; there
were no registered nurses assigned to that shift, although
one was on call if needed; five or six employees, presumably
nurses aides or other licensed practical nurses, worked un-
der her direction; she frequently arranged for employees to
fill in on the third shift if a problem arose with third-shift
staffing,during the second shift; she discharged a second-
shift employee on one occasion without first checking with
Mrs. Smiley, her immediate superior; and she hired em-
ployees for the second shift on one or two occasions under
similar circumstances. To the question "What did [Mrs.
Smiley] tell you your authority was?" her unrefuted reply
was, "She told me that I was to see that [the employees on
the second shift] did their work and if they didn't I could
send them home." I find, on the basis of Miss McClenney's
testimony, that she was a supervisor within the meaning of
the Act for whose conduct Respondent must , therefore,
bear responsibility.
2. The discharges of
Lula Hurry and Ethel Smith
Respondent contends that Lula Hurry and Ethel
Smith were discharged for cause in that they had recently
violated Respondent's standards of patient care. Donald
Reckner testified that when he went to the office in the
Garrard home after the employee meeting on August 16, he
was upset about the unsatisfactory inspection he had con-
ducted on August 14 as well as the anonymous notes about
which he had just warned the employees. He went through
the personnel records of approximately 12 out of the ap-
proximately 25 nurses aides employed at Garrard. He se-
lected Mrs. Hurry and Mrs. Smith for discharge because he
found notations in their files that they had recent infrac-
tions.
The notations he found in Mrs. Hurry's and Mrs.
Smith's files are informal jottings on the reverse sides of
forms used in the home which Mrs. Smiley had begun keep-
ing in the spring of 1971. (Mrs. Smiley was unable to give
any reason why she elected at that time to start this system
of recordkeeping. The paper from Mrs. Hurry's file is a
blank disciplinary report form apparently used in Keller
Nursing Homes to report disciplinary actions taken against
employees to the personnel department. I infer from the fact
that Respondent consulted its personnel files in preparation
for the hearing in this case yet offered into evidence no
disciplinary reports relating to either Mrs. Hurry -or Mrs.
Smith that neither was ever formally disciplined. This corro-
borates the testimony of Mrs. Hurry and Mrs. Smith that
their work was generally satisfactory. I so find. The notes
from Mrs. Smith's and Juanita Smeal's personnel files are
on the back of what appears to be a laboratory report form.
The quoted reason for Mrs. Smeal's suspension in sec. IIA1,
third paragraph, is taken from an entry dated August 11 on
the sheet pertaining to her.) The notation in Mrs. Hurry's
file reads-"Aug. 11, 1971-Work assignment not complet-
ed." The notation in Mrs. Smith's file reads "August 10,
1971-Work assignment not completed." (There is another
notation following it which reads "August 11, 1971-Loud
mouth in area of patients and visitors." Reckner testified
that he relied only on the August 10 entry in making his
selection of Mrs. Smith for discharge.)
Respondent also raises the defense of lack of company
knowledge. Insofar as proving by direct evidence that Reck-
ner knew when he discharged Mrs. Hurry and Mrs. Smith
that the former was one of the ringleaders in contacting the
Charging Party and signing up employees for the Union and
the latter had signed an authorization card or even that a
formal organizing campaign had started at Garrard, there
is no gainsaying the fact that there is a flaw in the General
Counsel's case. Counsel for the General Counsel established
that Miss McClenney was aware of Bivin's visit to the home
on August 15 yet he failed to ask whether she had reported
this fact to Mrs. Smiley or Reckner (or, for that matter, any
other official of Respondent or Keller Nursing Homes)
prior to the discharges of Mrs. Hurry and Mrs. Smith. In
view of the fact that counsel for the General Counsel called
Miss McClenney as his witness, I can only infer that the
answer to such a question would have been in the negative.
(Since I credit Mrs. Smiley's testimony that she was not
aware of the August 11 incident when the employees who
were trying to phone the union man named in the newspa-
per clipping scattered as she came up the stairs, it has no
significance with respect to the company knowledge issue.)
Insofar as indirect evidence is concerned, I concluded from
my observation of her at the hearing that Miss McClenney,
while a reliable witness, was inclined to exaggerate some-
what the importance of her own role at the home. Therefore,
with respect to Reckner's knowledge on August 16, I attach
no significance to her use of the word "we" when she said
to Judy Guy, on August 18, "We knew he [Arthur Bivins]
was a union man when he came in [to the home on August
15]." Finally, there is no need to fall back on a legal fiction
that Miss McClenney's knowledge is imputable to Respon-
dent because she was a supervisor within the meaning of the
Act at the time, for what Reckner admittedly did know is,
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I think , sufficient to sustain a finding that he violated the
Act when he discharged Mrs. Hurry and Mrs. Smith.
Reckner admittedly knew that an organizing campaign
was underway in the Cincinnati area directed at nursing
homes owned by Keller as well as others . He was aware,
from the anonymous notes about which he had just warned
the employees at Garrard , that the employees were restless
to the point of threatening a walkout and even violence to
the person of Mrs. Smiley if they did not get a raise. He
testified that the notes as well as his inspection were on his
mind when he decided to get rid of some employees and
selected Mrs. Hurry and Mrs. Smith. Therefore, it is clear
that his knowledge of union, or at the very least concerted,
activity among the employees played some part in what he
did on August 16, even if he did not, as he testified, learn
of the activities of employees to obtain authorization cards
for the Charging Party until Montgomery returned from
vacation on August 17. It follows that the question of
whether Respondent violated the Act when Reckner dis-
charged Mrs. Hurry and Mrs. Smith must turn on the ques-
tion of his motive and not his knowledge.
I find that Reckner discharged Mrs. Hurry and Mrs.
Smith in order to discourage the employees at Garrard from
engaging in union activities. He went through only half of
the personnel files of nurses aides employed at Garrard.
Thus, it follows, he stopped his search for employees whom
he could make an example of without a real effort to de-
termine whether Mrs. Hurry and Mrs. Smith were the only
alleged offenders on the staff in rendering inadequate care
Ito patients. He admittedly had no knowledge of why Mrs.
Hurry and Mrs. Smith had not completed their work assign-
ments on August 10 and made no effort to find out. Thus,
it follows, he made no effort to determine whether Mrs.
Hurry and Mrs. Smith could reasonably be held responsible
for recent infractions of Respondent' s rules . In his report on
the results of his inspection, he "suggested" Montgomery
"make some personnel changes as soon as possible ." Mont-
gomery, in his capacity as administrator of Garrard, nor-
mally discharges unsatisfactory employees, yet Reckner
could not wait 1 more day for Montgomery to return from
his vacation to carry out his "suggestion." Thus, it follows,
that Reckner acted with precipitate haste in discharging
Mrs. Hurry and Mrs. Smith on August 16. The reason for
his haste is clearly revealed by his statement to Mrs. Hurry
and Mrs. Smith that he could tell them he was discharging
them "because you want $2 an hour." Finally, while Miss
McClenney may not have been privy to the workings of
Reckner's mind, his purpose was so obvious even to her that
she made no attempt to disguise it when, 2 days later, she
told Mrs. Guy that Respondent had already gotten rid of
the employees it knew had been causing all the "trouble."
Since Miss McClenney was a supervisor within the meaning
of the Act, this remark has a special significance. It proves
that Reckner's motive was so obvious to everyone that even
those who legally spoke for Respondent were not trying to
maintain the fiction that Mrs. Hurry and Mrs. Smith had
been fired for cause but were reinforcing the antiunion mes-
sage which the discharges were intended to convey to the
other employees. For all these reasons, I conclude that the
reasons advanced by Respondent to justify the discharges
of Lula Hurry and Ethel Smith are a pretext and that
Reckner's real reason was to inhibit the campaign to organ-
ize Respondent's employees which the anonymous notes
had, given him good cause to suspect was imminent if not
already underway. When Reckner discharged them for that
reason, Respondent violated Section 8(a)(3) and (1) of the
Act.
3. The discharges of
Judy Guy and Juanita Smeal
Judy Guy worked for Respondent until September 14.
Juanita Smeal, although on leave after September 6, was in
an employee status until September 21. Therefore, in each
instance, company knowledge of their union activities pre-
sents no great problem . Miss McClenney correctly named
each as a card signer when she talked to Mrs. Guy on
August 18. More significantly, this conversation shows that
knowledge of who among Respondent 's employees was for
and who against the Charging Party was common gossip
around the home long before Mrs. Guy and Mrs. Smeal
were terminated. In each of their cases , the only real issue
is motive . In both , I think , the record will not sustain a
finding that Respondent 's reason for letting them go was
discriminatory within the meaning of the Act.
Mrs. Guy's is the stronger case. Its strength lies in the
statements made to her on August 18 by Miss McClenney
when Miss McClenney told her that Respondent had fired
Lula Hurry and Ethel Smith because they were union trou-
blemakers, that it knew that she was proumon, and that it
was going to fire her too because she had signed an authori-
zation card. There is no direct evidence in the record that
Miss McClenney was relaying a message from those above
her. In view of my appraisal of Miss McClenney, already
referred to above, I do not draw the inference that such
evidence might normally lead to. In Mrs. Guy's case, as in
Mrs. Hurry's and Mrs. Smith's above and Mrs. Smeal's
below, I think Miss McClenney was presuming more than
was justified by her actual position in Respondent's hier-
archy or her actual knowledge of what her superiors were
planning and doing.
The strong points of the General Counsel's case are
outweighed by the fact that Mrs. Guy willingly worked
behind a picket line at Daly Park more than a week before
the incident which caused her discharge. If it had been
proved that Respondent discharged Mrs. Guy because she
refused to cross a picket line at Avon on the night of Sep-
tember 13, her case would stand in a completely different
posture. However, her own account shows that it was a
mixup over getting to Avon and not a matter of principle
which caused her not to go to work that night. The fact that
she had already "helped out" Keller Nursing Homes by
working behind a picket line at another Keller home pre-
cludes a finding that Respondent assumed prounion senti-
ments were her real reason for not reporting to Avon.
Therefore, there is no basis for rejecting Respondent's de-
fense that Mrs. Guy was discharged for failing to report to
Avon as ordered and not because of her, or any other em-
ployees', union activities.
The only support for the General Counsel's position to
Mrs. Smeal's case lies in Miss McClenney's telling her, inac-
curately, that Mrs. Smiley had replaced her while she was
away. In view of my appraisal of Miss McClenney, it has no
GARRARD CONVALESCENT HOME
significance. The schedule for the week of September 19 is
in evidence . It clearly shows that Mrs. Smeal was scheduled
to work, that she was absent for 2 days, and that only then
was she removed from the schedule . Mrs. Smeal made no
effort, after talking to Miss McClenney, to contact Mrs.
Smiley to confirm that she had been replaced or to find out
why. Therefore, Respondent's assumption that she had quit
was a reasonable one.
For the reasons stated, I find that the General Counsel
has failed to establish by a preponderance of the evidence
that Respondent was discriminatorily motivated when it
discharged Judy Guy and Juanita Smeal.
4. The 8(a)(1) violations
There is no evidence in the record to support an allega-
tion of the complaint that Respondent violated Section
8(a)(1) of the Act when Betty Smiley interrogated employ-
ees in August.
The complaint also alleges as an independent 8(a)(1)
violation the statements which Donald Reckner made to
employees at the meeting held on August 16. It characteriz-
es them as "threatening employees with arrest because they
engaged in protected concerted activity." Even the General
Counsel's witnesses agree that Reckner said he was not
going to press the issue created by the notes Mrs. Smiley had
already received. Ethel Smith's version of what Reckner
said was:
... he knew who wrote it, he had been to the police
station, and they advised him to take out a warrant for
the person, but he was going to let it slide by this time
but if it happened again he was going to get a warrant
out for them.
Lula Hurry's version was:
... he was telling us about the notes that was
placed on Miss Smiley's time card and said he had been
down to the police station and the police had advised
him to take out a warrant for the person that had put
the time cards there. And he said he wouldn't do it but
if it would happen again he would go down and have
a warrant taken out for this person.
The "it" to which Reckner referred was obviously the plac-
ing of threatening notes on Mrs. Smiley's timecard. No case
has been called to my attention which protects the use of
anonymous threatening letters during concerted or union
activities. I would be surprised if it had, for there is no more
reprehensible conduct , in my opinion, in person -to-person
relationships of any description . I find , therefore , that Re-
spondent did not violate Section 8(a)(1) of the Act on Au-
gust 16 when Donald Reckner told employees he would
obtain arrest warrants for anyone who threatened bodily
harm to Mrs. Smiley in the future.
Other allegations of the complaint that Respondent
violated Section 8(a)(1) of the Act by the conduct of Clif-
ford Montgomery and Lorene McClenney have been sus-
tained . I find that Montgomery's statements on August 17
to a group of assembled nurses that Respondent would close
the home if the Union got in amounted to a threat. In view
of Respondent's position that Lorene McClenney, a li-
censed practical nurse in charge of an entire shift, was an
employee, I conclude that other licensed practical nurses
719
who were in the group and as to whom there are no individ-
ual data in the record were employees and not supervisors
within the meaning of the Act. Therefore, Montgomery re-
strained and coerced employees by threatening that the
home would be closed if employees organized for purposes
of collective bargaining.
I find that Miss McClenney restrained and coerced
employees when, following the August 16 meeting, she told
employees they probably could lose their jobs for signing
authorization cards; when, on August 17, she relayed to
employees Montgomery' s message that they should come
forward, admit their guilt in signing authorization cards for
a union, and tear them up in order to protect their jobs, that
it was possible the home would close if the union got in, and
that prounion employees would lose their jobs when the
home closed; and when , on August 18, she urged Judy Guy
to sign a statement disclaiming her union activities and
threatened her with discharge for engaging in them.
Upon the foregoing findings of fact, and upon the en-
tire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Garrard Convalescent Home, Incorporated, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. National Union of Hospital and Nursing Home Em-
ployees, Local 1199H, Retail, Wholesale and Department
Store Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Lula Hurry and Ethel Smith on Au-
gust 16, 1971, in order to discourage the union activities of
its employees, Respondent has violated Section 8(a)(3) and
(1) of the Act.
4. By threatening that its nursing home would be closed
if its employees organized for purposes of collective bar-
gaining; by threatening employees with loss of their jobs for
engaging in union activities ; by instructing employees to
come forward, admit their guilt in signing authorization
cards for a union, and tear them up in order to protect their
jobs; and by urging an employee to sign a statement dis-
claiming her union activities, Respondent has violated Sec-
tion 8(a)(1) 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.
6. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Judy Guy on or about August 30, 1971, and Juanita Smeal
on or about August 24, 1971, because of their union inter-
ests and activities and in order to discourage union activities
and the allegations of the complaint that Respondent viola-
ted Section 8(a)(1) of the Act by the conduct of Donald
Reckner on or about August 17, 1971, and the conduct of
Betty Smiley in August 1971 have not been sustained.
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and remedy them.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the discrimination practiced against Lula
Hurry and Ethel Smith, I will recommend the usual remedy
of reinstatement and backpay computed on a quarterly ba-
sis, plus interest at 6 percent per annum, as prescribed in F.
W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. I will also recommend that
Respondent be required to post appropriate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER2
Garrard Convalescent Home, Incorporated, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees in order to discourage
their activities in connection with National Union of Hospi-
tal and Nursing Home Employees, Local 1199H, Retail,
Wholesale and Department Store Union, AFL-CIO, or any
other labor organization.
(b) Threatening to close its nursing home if its employ-
ees organize for purposes of collective bargaining.
(c) Threatening employees with loss of their jobs for
engaging in union activities.
(d) Instructing employees to come forward, admit their
guilt in signing authorization cards for a union, and tear
them up in order to protect their jobs.
(e) Urging employees to sign statements disclaiming
their union activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
2 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
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
(a) Offer Lula Hurry and Ethel Smith immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any earnings they lost as a result
of their discharges on August 16, 1971, plus 6-percent inter-
est.
(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, person-
nel 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 nursing home in Covington, Kentucky,
copies of the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent's repre-
sentative, 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 no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith .4
IT IS ALSO ORDERED that the complaint be dis-
missed insofar as it alleges violations by Respondent of
Section 8(a)(3) and (1) of the Act by discharging Judy Guy
on or about August 30, 1971, and Juanita Smeal on or about
August 24, 1971, and insofar as it alleges violations by Re-
spondent of Section 8(a)(1) by acts and conduct not express-
ly found violative herein.
3 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
4 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 9, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."