Hickory Creek Nursing Home

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1144 (N.L.R.B. 1989)

1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Health Care Management Corporation d/b/a Hicko-
ry Creek Nursing Home and District 1199,
WV/KY/OH, National Union of Hospital &
Health Care Employees , AFL-CIO. Case 9-
CA-24705
July 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 16, 1988 , Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief, and has
decided to affirm the judge's rulings, findings,) and
conclusions2 as modified and to adopt the recom-
mended Order as modified.
In October 1987, Supervisor Linda Miller started
a conversation with two employees about the
Union. Miller told the employees that "we would
pay dues and, if they need the money for someone
else that went on strike, they could take our money
and never say anything to us ." The judge found
that Miller 's remarks unlawfully threatened the em-
ployees as to what would happen if the Union
became their collective-bargaining representative.
Although we adopt the judge's substantive find-
ings here in other respects , we do not find that this
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We correct two inadvertent errors the judge made that do not affect
the result in this case. ( 1) In the portion of the decision entitled "Desiree
Robinson, alleged coercive interrogation , paragraph 5(b)," the statement
that "the employer may exercise a full and free choice on whether to
select the union or not," should read "the employee [emphasis added] may
exercise a full and free choice on whether to select the union or not." (2)
In the portion of the decision entitled "Respondent 's Failure to Accord
Ash Due Process Allegedly Leads to No Inference of Unlawful Motiva-
tion," the statement that "if the accused employer gave any explanation
of his alleged sexual harassment" should read "if the accused employee
[emphasis added] gave any explanation of his alleged sexual harassment."
We adopt the judge 's finding that the Respondent , inter alia , unlawful-
ly suspended employee Sandra Ash because she engaged in union and
other protected concerted activities and not, as the Respondent asserted,
because of her alleged "willful neglect" of a patient which resulted in
injury . In so concluding , however , we do not rely on the judge's gratui-
tous comment that the Respondent 's failure to investigate previous inci-
dents of patient injury was "ascribable to Respondent 's reasonable desire
not to create a record on which its own liability for negligence could be
predicated "
2 Although the Respondent has excepted to the judge's finding that
Supervisor Desiree Robinson coercively interrogated Ash during August
1987, we find it unnecessary to reach this allegation because the violation
would be cumulative here
conduct constituted an 8(a)(1) violation. The
manner in which the Union spends the dues pay-
ments it receives clearly is not a matter within the
Respondent 's control . Cf. Rio de Oro Uranium
Mines, 120 NLRB 91, 94 (1958) (threats of job loss
not objectionable even if made by union agents
since such threats would not be "within the
Union's power to carry out"). Thus, Supervisor
Miller's remarks on this subject could not have im-
pacted coercively on the employee listeners' Sec-
tion 7 right to engage in union activity . We, there-
fore, shall dismiss this allegation of the complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 2 of the
judge's Conclusions of Law.
"2. By coercively interrogating employees con-
cerning their union activities and sentiments, prom-
ising them equipment and other benefits, threaten-
ing them with reductions in wages, threatening
them that it would do everything in its power to
keep the Union out, threatening that employee ben-
efits would be lost , and threatening employees that
their wages would be frozen , the Respondent vio-
lated Section 8(a)(1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Health Care Management Corporation,
d/b/a Hickory Creek Nursing Home, Athens,
Ohio, its officers , agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(b).
"(b) Promising benefits to employees and threat-
ening them with retaliation in order to discourage
their activities on behalf of the Union or any labor
organization."
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations not found
here.
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.
295 NLRB No. 139
HICKORY CREEK NURSING HOME 1145
WE WILL NOT discharge, suspend, or otherwise
discipline employees because of their membership
in, sympathy for or activities on behalf of District
1199, WV/KY/OH, National Union of Hospital &
Health Care Employees, AFL-CIO, or any other
labor organization , or because any employee en-
gages in concerted activities protected by Section 7
of the National Labor Relations Act.
WE WILL NOT promise benefits to employees and
threaten them with retaliation in order to discour-
age their activities on behalf of the Union, or any
other labor organization.
WE WILL NOT promulgate , maintain , or enforce
any rule, regulation, or prohibition that forbids the
wearing of union insignia on employee clothing,
not limited to immediate patient care areas or other
specifically identified areas where the wearing of
union insignia would adversely affect patient care.
WE WILL NOT enforce our no access rule in
order to interfere with our employees engaging in
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to Sandra Ash immediate and full
reinstatement to her former job or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights
and privileges, discharging if necessary any re-
placement in said job, and make her whole, with
interest , for any loss of earnings.
WE WILL remove from our personnel records of
Sandra Ash any and all references to her suspen-
sion of August 25, 1987, and her discharge of Sep-
tember 26, 1987, and notify her, in writing, that
this has been done, and that the evidence of her
unlawful suspension and her unlawful discharge
will not be used as a basis for any future discipli-
nary action against her.
HEALTH CARE MANAGEMENT COR-
PORATION D/B/A HICKORY CREEK
NURSING HOME
bus, Ohio , upon the General Counsel 's complaint ' alleg-
ing, in substance , that Respondent , Health Care Manage-
ment Corporation d/b/a Hickory Creek Nursing Home,
in violation of Section 8(a)(1) of the National Labor Re-
lations Act (the Act), coercively interrogated, threat-
ened , warned , and promised employees concerning their
activities on behalf of and sympathy for the above-cap-
tioned Charging Party, District 1199, National Union of
Hospital & Health Care Employees , AFL-CIO, unlaw-
fully ordered employees to remove union insignia and
changed its policy regarding visitation of employees on
Respondent 's premises ; and, in violation of Section
8(a)(3) of the Act, unlawfully suspended and thereafter
discharged its employee , Sandra Ash, because of her sup-
port of and assistance to the Union . Respondent 's timely
filed answer, served December 4, 1987, admits certain al-
legations of the complaint, denies others, and denies
commission of any unfair labor practices.
At the hearing, all parties were represented by coun-
sel, given full opportunity to call and examine witnesses,
submit oral and written evidence , and to argue on the
record . At the close of the hearing, counsel for the par-
ties waived final argument and reserved the right to
submit posthearing briefs.
On the entire record , including the briefs, and from
my observation of the demeanor of the witnesses as they
testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
Respondent,'an Ohio corporation engaged in the busi-
ness of providing health care services as a health care in-
stitution , operating a nursing home in Athens, Ohio, pro-
viding in-patient professional care services , during the
12-month period preceeding November 1987, a repre-
sentative period, in the course and conduct of his busi-
ness operations , derived gross revenues in excess of
$100,000 . In the same period, it purchased and received
at its Athens facility products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of Ohio. Respondent admits and I find that, at
all material times , it has been and is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and a health care institution
within the meaning of Section 2(14) of the Act.
Vyrone Alex Cravanas, Esq., for the General Counsel.
Brett L. Thurman, Esq. and Fred A. Ungerman, Jr., Esq.
(Coolidge, Wall, Womsley & Lombard), of Dayton,
Ohio, for the Respondent.
Robert Callahan , Union Representative , of Columbus,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
matter was heard on January 21 and 22, 1988, in Colum-
II. THE UNION AS A STATUTORY LABOR
ORGANIZATION
The complaint alleges, Respondent admits, and I find
that District 1199, WV/KY/OH, National Union of Hos-
pital and Health Care Employees, AFL-CIO (the Union)
is now, and has been at all material times herein , a labor
organization within the meaning of Section 2(5) of the
Act.
' The Union's unfair labor practice charge was filed on October 5,
1987, and served on Respondent on October 6, 1987 . The complaint, to-
gether with the notice of hearing, is dated November 23, 1987
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent operates nursing homes, inter alia, in Ohio
and Pennsylvania, including the nursing home in The
Plains, Ohio, the Hickory Creek Nursing Home. Re-
spondent has operated the Hickory Creek Nursing Home
since its opening in 1980. The employee unit at the Hick-
ory Creek Nursing Home is a service and maintenance
unit composed of nurses aides, housekeepers , diet depart-
ment employees , laundry department and maintenance
employees , comprising about 86 employees . In or about
May 1987, the Union commenced an organizational
effort among unit employees and filed a petition for cer-
tification with the NLRB on August 24, 1987 . In the sub-
sequent Board-conducted election of November 12, 1987,
the Union lost the election by a vote of 40 to 42.
In July and early August 1987, Sandra Ash and more
than a half dozen other unit employees had distributed
union membership application cards . Sandra Ash, alone,
distributed 10 to 15 cards and the signed cards were re-
turned to the union.
A. The Company Meeting of August 17, 1987
Before August 14, 1987, Respondent's administrator
(chief supervisor) at Hickory Hills, R . Brian Sturgeon,
became aware of union activity among the employees.
Sturgeon had been the Hickory Hills administrator since
June 1986 and with the parent corporation since March
1984.
Respondent called a meeting of all unit employees for
August 17, 1987 . Ash estimates that 80 to 100 employees,
including some employees of another nursing home
owned by Respondent , attended the meeting . Sturgeon
estimates that there were about 45 unit employees
present . There is no question that the meeting concerned
the union organizational effort and was addressed princi-
pally by Greg Nelson , president of Respondent . Nelson
did not testify in the instant Board hearing.
Sturgeon testified that the threefold purpose of the
meeting was to discover why the employees felt that
they needed a union to represent them , what the employ-
ees' problems were, and to give Respondent an opportu-
nity to present its views concerning what the Union
could and could not do for the employees . Sturgeon re-
calls that among employee concerns expressed at the
meeting was that Respondent 's work evaluation process
was unfair and that the employees felt they were being
improperly disciplined if they spoke up about work prob-
lems. Sturgeon told the employees that Respondent
would look into the problem and assured the employees
that none of them were disciplined for speaking up about
anything.
According to the uncontradicted and credited testimo-
ny of Sandra Ash, when Greg Nelson told them that he
was a former FBI agent and admonished the employees,
seated in the Hickory Hills dining room, that they were
obliged to listen to him, Ash stood up and asked Nelson
where was the employees ' freedom of speech . No Nelson
reply is recorded . Nelson introduced employees from the
Respondent 's affiliated nursing home (Scenic Hills) and
said that he had brought these employees to show the
Hickory Hills employees that having a union would not
be for their benefit. Nelson told the assembled employees
that he wanted to "educate" the Hickory Hills employ-
ees. He said that some Scenic Hills employees had tried
to get a union and that the Scenic Hills employees would
tell the Hi^kory Hills employees how the effort to gain
the Union "fell apart" (Tr. 16). When he then said that
the employees at Hickory Hills did not need a union,
Ash stood up and said : "yes, we do need a union" (Tr.
17). Other employees also spoke in favor of a union.
Nelson then asked the Scenic Hills employees to tell the
other employees how much the union dues were going
to cost and that when a union comes in, employees
"don't get along with each other." He said that unioniza-
tion creates "enemies" and that the employees have to
"take sides." Ash then told Nelson that he had the facts
"wrong" about union dues and that coemployee Renee
Matheny had the facts on union dues.
At this point, Nelson said to Ash: "you evidently . . .
have been elected the spokesmember" (Tr. 18). When
Nelson then said that he would like Ash to keep her
mouth shut, sit down, and let someone else talk (Tr.
149), Ash did not respond.
Nelson said that union dues were very expensive and
the employees did not need to pay the Union in order to
have their problems settled because the Employer and
the employees could take care of their own problems.
Ash asked Nelson why it was that when employees
spoke to the Hickory Creek administration , they were
always getting into trouble for it and being told that they
were troublemakers (Tr. 19). She did not remember Nel-
son's answer . Ash, without contradiction , described Greg
Nelson 's demeanor toward her as "angry" (Tr. 27).
August 19, 1987
Two days later, on August 19, Ash, together with 30
to 40 other unit employees , in the company of a union
agent (David Mott), walked into Administrator Stur-
geon 's office with 70 to 80 signed union cards . The union
agent told Sturgeon that he had the cards to show that
the employees wanted to be represented by the Union
but Sturgeon told him that the Union did not represent
the Company 's employees and that he would not recog-
nize the Union as the representative . He told Mott to get
off Respondent 's property . When the employees were
outside the building, the sheriff came and the employees
left.
The Allegations of Violation of Section 8(a)(1) of
the Act
The complaint alleges independent violations of Sec-
tion 8 (a)(1) by various threats, promises , and coercive in-
terrogation by supervisors Greg Nelson, Desiree Robin-
son, Linda Miller, Brian Sturgeon , Karen Brozak,
Tammy Webb, and by amendment at the hearing, Carol
McQuate.2
2 The complaint alleges and Respondent admits that Greg Nelson,
Brian Sturgeon , Tammy Webb, Karen Brozak, Linda Miller, Pam Jeffers,
Continued
HICKORY CREEK NURSING HOME
a. Greg Nelson
Paragraph 5(a) of the complaint
Paragraph 5(a) alleges that on or about August 17, Re-
spondent, through Greg Nelson, during a compulsory
employee, meeting, accused an employee of being the
spokesperson for the Union . The above evidence , uncon-
tradicted in the record , shows that Respondent called an
antiunion meeting on its premises obliging the presence
and attention of all unit employees . In addition, Re-
spondent brought employees from its nearby Scenic Hills
Nursing Home . Among the admitted purposes of the
meeting was to permit Respondent to demonstrate that
Hickory Hills employees did not need a union . Sandra
Ash stood up and asked about employee freedom of
speech . While other employees also spoke in favor of the
Union, when Nelson told the assembled employees that
he was there to educate them why they did not need a
union, Sandra Ash stood up and said that they did need a
union (Tr. 17). When Nelson told the Hickory Creek em-
ployees about the size and apparent misuse of union dues
and that employees did not get along with each other be-
cause unions "made enemies" among employees (Tr. 18),
Ash told Nelson that his facts were wrong about the
union dues . Nelson then said to Ash: "You evidently
have been elected the spokesmember for the Union" (Tr.
18). Ash did not answer him (Tr . 18). Ash , however,
characterized Nelson's demeanor as being angry when
they had this exchange of words (Tr. 27). It was in this
exchange , when Greg Nelson characterized Ash as the
union "spokesmember" that he also said he would like
her to keep her mouth shut and sit down to let some-
body else talk for a while (Tr. 149).
The complaint allegation appears to make the unlaw-
fulness turn on the word "accuse" wherein Nelson "ac-
cused" Ash of being the union spokesperson . Absent an
element of threat, promise of benefit, intimidation, or
even insult, there is insufficient evidence either to show
that a mere accusation , under the circumstances , was suf-
ficient to interfere with , restrain , or coerce Ash or the
other employees. Nor does the evidence independently
show, even in this antiunion meeting, where Nelson was
trying to convince unit employees not to support the
Union , that his telling the union "spokesmember" to sit
down , shut up, and give somebody else a chance to
speak , to be so coercive as to independently violate Sec-
tion 8(a)(1) of the Act. In the absence of Board prece-
dent to the contrary , I conclude that mere hostile identi-
fication of an employee as a prominent union advocate,
without more, does not violate Section 8(a)(1). I there-
fore recommend that paragraph 5(a) of the complaint be
dismissed upon the failure to show that the conduct en-
gaged in by Nelson was violative of the Act.
Desiree Robinson , and (through Sept . 21, 1987) Linda Loos, at all materi-
al times, were Respondent 's supervisors and agents within the meaning of
Sec 2( 11) and (13) of the Act McQuate, at the hearing , was also admit-
ted to be a supervisor.
1147
Desiree Robinson , Alleged Coercive Interrogation,
Paragraph 5(b)
The complaint alleges that during August 1987, Super-
visor Desiree Robinson coercively interrogated employ-
ees concerning the benefits they expected to obtain
through union representation . Sandra Ash testified (Tr.
55 et seq.) that between August 19 and 21, 1987, during
the organizational effort, while in a conversation with
Desiree Robinson concerning the rights of patients to be
free from unreported communicable diseases and from
rumors in the nursing home, Robinson suddenly asked
Ash: "How is the Union going to help you with this?"
Especially where, as here, the Respondent has manifest-
ed its hostility toward union organization among its em-
ployees, the rule is that an employee is entitled to keep
from her employer her views so that the employer may
exercise a full and free choice on whether to select the
Union or not, uninfluenced by the employer's knowledge
or suspicion about those views . Interrogation under such
circumstances is "coercive." NLRB v. Laredo Coca-Cola
Bottling Co., 613 F.2d 1338 (1980), 449 U . S. 889 (1980),
cert . denied 105 LRRM 2658 ( 1980). In the instant inter-
rogation , the Respondent 's supervisor 's question, not an
idle inquiry , was raised against a general background of
employer hostility to the Union . Ash was entitled to
keep her particularized view (of how the Union would
help her) from Robinson . The fact that Ash was already
identified by Nelson as the Union 's "spokesmember"
does not militate against a finding of unlawful coercion.
Robinson 's hostile inquiry of a known union supporter,
against a background of hostility , remains "coercive"
under the rule in Rossmore House, 269 NLRB 1176
(1984). See Springs Motel, 280 NLRB 284 (1986). Robin-
son's inquiry was not "harmless curiosity " (Chairman
Dotson , dissenting).
Nurses aide Judith McClain testified (Tr. 264-267)
that, in late August or early September 1987 (Tr. 259),
several supervisors, including Desiree Robinson, Karon
Brozak, and Pam Jeffers, stopped her in the hall on her
work time and directed her to listen to a 20-minute read-
ing of a "management bill of rights ," meanwhile telling
her to temporarily not answer patients ' calls. They then
asked her how she felt about "this" (Tr. 267), meaning
the Union. Whether Respondent was inquiring how
McClain reacted or felt concerning the management bill
of rights , in particular , or the Union in general , this in-
formation , as in the Robinson interrogation of Ash, is a
matter which McClain could rightfully keep to herself in
view of the explicit hostility with which this group inter-
rogation was taking place-forcing an employee to omit
caring for patients and directing the employee to listen
to an antiunion harangue. I conclude , on the basis of the
above-cited authority , particularly Springs Motel, supra,
that the interrogation was coercive and unlawful within
the meaning of Section 8(a)(1) of the Act.
Linda Miller : Various Threats and Promises,
Paragraph 5(c) of the Complaint
Nurses aide Barbara Holdcroft testified that in August
1987, director of nursing, Linda Loos, and Supervisor
Linda Miller approached her in the presence of coem-
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees Donna Stover and Lillian Clark. The supervi-
sors, having first asked the employees if they needed any
further and other equipment on the floor (wheelchairs,
towels, washcloths), then said : "See we don't need a
third party to settle our problems; whatever we need, we
can get it without the union" (Tr. 151). In the same con-
versation the supervisors told Holdcroft (and the other
employees) that if they continued trying to get the Union
in, they might lose everything that they had (Tr. 153). In
particular , they would lose the right to switch scheduled
days off (Tr. 154). I regard the supervisors ' conversation
regarding the offer of other equipment to be, as alleged,
a promise of unlawful benefit if the employees forsook
the Union; and I regard their statement that the employ-
ees could lose the right to switch scheduled days off if
the Union came in as an unlawful threat of retaliatory
loss of benefits , both the promise and the threat consti-
tuting separate violations of Section 8(a)(1) of the Act as
alleged in paragraphs 5(c)(i) and 5(c)(ii).
Further, supporting paragraph 5(c)(ii ), as alleged retal-
iatory loss of benefits , nurses aide Wanda Matheny testi-
fied (Tr. 210 et seq.) that on September 22, 1987, while
she was reading a company leaflet concerning job securi-
ty, Supervisor Karen Bozak asked her if she had a
"problem" with the leaflet (Tr. 212). Matheny told
Brozak that, contrary to the leaflet (which said that the
employees had job security), if Respondent could replace
Linda Loos Director of Nursing and Jane Meyers Assist-
ant Director of Nursing then the nurses aides were
merely worth "a dime a dozen" (Tr. 212). About 15 or
20 minutes after that conversation , Supervisors Brozak
and Miller approached Matheny . Brozak asked Matheny
to explain to Supervisor Linda Miller why she had a
problem about the job security leaflet (Tr. 213). Matheny
told Linda Miller that the nurses aide jobs could not be
secure when Supervisors Loos and Meyers had been re-
placed and their jobs had not been secure (Tr. 213). Su-
pervisor Miller then asked Matheny if Matheny realized
that if the Union got in , the employees would lose all of
their benefits and that their pay would be frozen (Tr.
215). Matheny told her that she did not think that they
would lose their benefits; that at the negotiation table,
the employees would maintain their present benefits and
work their way "for the better" (Tr. 215). Supervisor
Miller contradicted her: "Do you realize that once the
benefits and our wages and everything are put on the
table, that we could lose everything?" (Tr. 215); that
Greg Nelson was "a very smart and tough business
man"; and that he would do "anything within his power
to stop the union from getting in there" (Tr. 215).
Complaint paragraphs 5(c)(iii ) and 5(c)(iv) allege, on
the above-credited testimony, that Supervisor Linda
Miller threatened employees with loss of wages and ben-
efits if they selected the Union and threatened that Re-
spondent would do everything in his power to keep the
Union out. On the basis of the above-credited Matheny
testimony , I conclude that Respondent violated Section
8(a)(1) of the Act by stating that, if the Union got in, the
employees would lose benefits; that, in negotiations, the
employees could lose "everything"; and that Nelson
would "stop the Union" from getting in. To the extent
that Supervisor Linda Miller denied making such state-
ments to employees Holdcroft and Matheny , I do not
credit her denials which were tentative at first and then
made with great assurance when pressed . The straight-
forward specificity of the Matheny testimony overcomes
equivocal Miller denials made unequivocal thereafter.
I further conclude that Supervisor Miller unlawfully
threatened nurses aide Michelle Stauffer in October 1987.
Supervisor Miller called Stauffer and another employee
off the floor and started a conversation about the Union
(Tr. 297). Miller was recounting what the Union could
not do for the employees , and, among other things, said
that while the employees would pay union dues, if the
Union needed the money for other employees who were
on strike, the Union could take the money and never tell
the employees (Tr. 297-298). I find , as alleged in para-
graph 5(c)(v), that in or about October 15, 1987, Miller,
by informing Stauffer that the Union could use their dues
money without their permission , unlawfully threatened
Stauffer as to what would occur if the Union became the
collective-bargaining representative , in violation of Sec-
tion 8(a)(1) of the Act. Miller did not deny the conversa-
tions in which these threats occurred (Tr. 340-342) or
offer to prove the basis therefor.
Brian Sturgeon : Alleged Unlawful Acts in Violation
of Section 8(a)(1)
By paragraph 5(d)(i), the complaint alleges that on or
about September 9, 1987, Sturgeon ordered the employ-
ees to remove union buttons because the wearing of such
insignia violated Respondent 's solicitation policy.
The evidence shows (Tr. 290) that unit employees, in
or around September 1987, wore union buttons to work.
The buttons contained the words: "We care Union."
Sturgeon came individually to the employees and told
them to remove the buttons (Tr. 175). When the employ-
ees refused , he asked them if they knew that it was
"against company policy to solicit." When the employees
asked him what he meant by "soliciting ," he told them:
"Anything with 1199, or Union written on it." (Tr. 175).
Sturgeon admits (Tr. 455-458) that he told the em-
ployees that they were violating Respondent's rule
against solicitation ; and that he went to each individual
employee (eight nurses aides and two LPNs) on the third
shift and asked them to remove the buttons stating that
the wearing of the buttons was a violation of company
policy against solicitation. When the employees refused
to remove the buttons, Sturgeon told them that their re-
fusal could result in discipline against them . At no time
did Sturgeon tell any of the employees when or where
they could wear the buttons though it appeared that they
were wearing the buttons not during their breaktime but
on worktime (Tr. 45).
Respondent's Exhibit 3, which is page 127 of Respond-
ent's Training Manual, relates to a prohibition of solicita-
tion on Respondent 's premises . The policy against solici-
tation is posted and relates to solicitation of any kind
(Tr. 463). Respondent's Exhibit 5, section VI (o), pro-
vides that it is a violation of Respondent's work rules if
there is a violation of the policy against solicitation and
distribution.
HICKORY CREEK NURSING HOME
The complaint does not allege that Respondent 's writ-
ten prohibition against solicitation is invalid . 3 As noted,
Sturgeon did not tell the employees whom he forbade to
wear the buttons, where and when they could wear the
buttons . He testified that he merely told them that they
could not wear the buttons "in the facility" (Tr. 458).
Thus Sturgeon 's verbal admonition and warning appears
to be broader than the posted rule itself especially if any
attention is given to the limiting words "participating
employees." Sturgeon 's verbal prohibition was, as he ad-
mitted , that the employees could not wear the union in-
signia in the facility , i.e., with no reference to working
time or working place . This appears to be a prohibition,
regardless of time, in any place.
In health care facilities , a rule that restricts nonwork-
ing time solicitation outside immediate patient care areas
is presumptively invalid . The presumptive invalidity is
also applicable to rules restricting the wearing of insignia
outside immediate patient care areas . NLRB v. Baptist
Hospital, 442 U.S. 773 (1979). Accord: Asociacion Hospital
Del Maestro v. NLRB, 342 F.2d 575 (1st Cir. 1988).
Since the employees , on Sturgeon 's verbal declaration,
are forbidden to wear the union button anywhere in the
nursing home, even on nonworktime in nonpatient care
areas, the restriction is presumptively invalid as "over-
broad ." The burden, of course , is on the Respondent to
prove , with respect to areas in which such a restriction
applies, that such union identification may adversely
affect patients . See Mesa Vista Hospital, 280 NLRB 298
(1986); Asociacion Hospital Del Maestro, Inc., 283 NLRB
419 (1987), enfd. 842 F.2d 575 (1st Cir. 1988). There is
no testimony , much less proof, and Respondent has
therefore failed to support its burden of proof. As al-
leged , Sturgeon 's order for employees to remove union
buttons upon entering Respondent 's facility , because
wearing them in the facility violated Respondent 's policy
against solicitation , violates Section 8(a)(1) of the Act.
His added threat of discipline merely compounds the vio-
lation . Saint Vincent's Hospital , 265 NLRB 38, 42 (1982),
enfd . 729 F.2d 730 (11th Cir. 1984).
While Respondent 's enforcement of its no-solicitation
rule would constitute a violation even if it were not
aimed solely at union solicitation , on the present credited
evidence , Sturgeon himself defined prohibited solicitation
as "anything with 1199 or Union, written on it." This
makes both Sturgeon 's verbal admonition and the written
rule (as construed and enforced) not merely unlawfully
"overbroad ," but patently discriminatory and thus fur-
ther unlawful.
Respondent 's No Access Rule
Paragraph 5(d)(ii) alleges that in October 1987, Re-
spondent announced changes in its policy regarding per-
mitting employees to arrive early or leave late after the
end of their shifts . The complaint alleges that , contrary
to past practice , with the advent of the Union , Respond-
ent prohibited employees from being on the premises
8 R. Exh . 5, sec . VI, p. 25 provides : "No employee shall engage in- (a)
violation of the policy prohibiting solicitation of residents, visitors, or in-
vitees of the nursing home at any time or other employees when any par-
ticipating employeees are on working time."
1149
before they commenced work or after they ended their
shift. This new policy allegedly unlawfully discouraged
employees ' union activity.
Respondent 's employee handbook (R. Exh . 6 at 15), at
all material times , has contained a provision prohibiting
employees from being in the nursing home facility more
than 5 minutes before or 5 minutes after the work shift.
Sturgeon testified that the problem of early and late
arriving employees never arose until the union campaign
started (Tr. 472). Employees (Holdcroft , 156; Finnearty,
181-182; McClain, 256 et seq.) testified that Respondent
only commenced enforcing the work rule prohibiting
employees from being on the premises more than 5 min-
utes before or after the start of their assigned shifts (Tr.
470; R. Exh. 7 at 15) only because of union activity. Em-
ployee McCLain testified that prior to the union organi-
zational campaign , she was regularly on the premises
one-half hour before starting time (Tr. 256).
Sturgeon testified that the rule had never been en-
forced because Respondent never had any "problems"
with employees arriving early or late or arriving early or
staying late (Tr. 472). When, in September 1987, employ-
ees began arriving early by as much as 45 minutes, Stur-
geon posted a notice (R. Exh . 8) reminding the employ-
ees of the existing "5-minute" rule . (R. Br. at 20).
The employees appeared to believe that the rule ap-
plied , however , to Respondent 's parking lot (Tr. 185).
The record evidence shows that prior to this time, em-
ployees would regularly arrive early by one-half hour or
stay late (Tr. 156; 181-182; 256 et seq .) and even visited
the nursing home when the employees weren 't scheduled
to work at all (Tr. 303). No employee had even been dis-
ciplined for violation of the rule notwithstanding its vio-
lation was widespread (Tr. 256). Respondent did not spe-
cifically deny knowledge of the practice supporting the
testimony of the above employees. After the union cam-
paign began , Respondent 's supervisors enforced the rule
(Tr. 304). The inference I draw, and General Counsel al-
leges, is that it was brought to the attention of employees
as being enforced because of the union campaign. As
such , this selective enforcement violates Section 8(a)(1)
of the Act as alleged.
Coercive Interrogation by Supervisor
Tammy Webb
In paragraph 5(f), General Counsel alleges that Re-
spondent , through its supervisor , Tammy Webb, coer-
cively interrogated an employee regarding the employ-
ee's expectations concerning union representation and
also told the employee that the Union refused to help a
fellow employee who had been discharged. The evi-
dence shows that Supervisor Webb, in discussing a con-
tract between the Union and another nursing hospital
(Pomeroy Health Center) told nurses ' aide Judith McClain
that she did not think the contract was such a good con-
tract and that the employees would be better off without
a union (Tr. 261). She also told McClain and another
nurses' aide that Sandra Ash had sought the Union's help
concerning her suspension and the Union told her that it
did not have time "to fool with it" (Tr. 262). When
Webb then asked McClain how she felt about the Union,
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McClain told her that she was 100 percent in favor of
the Union and nothing that Webb could say would ever
change her mind (Tr. 262). I find nothing in Webb's con-
versation with McClain and another employee to consti-
tute unlawful interrogation nor do I find her conversa-
tion with regard to the Union 's refusal to help Sandra
Ash (after Sandra Ash went to it for help concerning her
suspension) to be unlawful . Nor is there coercion in
asking how McClain felt about the Union . That question,
in context, relates to how she felt about the Union 's inac-
tion in the face of Ash 's request for aid-actually a rhe-
torical question . McClain's answer belies coercion in the
question in any event ., Webb 's interrogation did not
"tend to interfere" with McClain 's rights . Cf. Richmond
Recording Corp., 280 NLRB 615 ( 1986). I therefore rec-
ommend to the Board that the allegations concerning
Webb 's conversation with McClain be dismissed as not
violative of Section 8(a)(1) of the Act.
Supervisor Karen Brozak ; Coercive Interrogation
The complaint alleges, paragraph 5(e)(i) and (ii) that
Supervisor Brozak in October 1987 engaged in coercive
interrogation and, in requiring an employee to listen to
her antiunion sentiments, informed employees that if the
Union prevailed in the election November 12, 1987, Re-
spondent would continue to operate its facility as it had
in the past , implying that it would be futile to select a
union as their bargaining representative.
Judith McClain testified (Tr. 287-288 ) that in late
August or early September (Tr. 259), about 2 hours after
she spoke with Supervisor Tammy Webb (Tr. 264),
supra, she had a conversation with Supervisors Robin-
son, Brozak, and Pam Jeffers . It was in this conversation
that these supervisors were reading to McClain and an-
other employee from the management bill of rights.
Those supervisors told her that Respondent would still
have the right to run the facility, whether the Union
came in or not. Respondent would run the facility the
way they wanted to (Tr. 287-288).
Robinson confirmed (Tr. 329) McClain's testimony
that a conversation occurred ; that she and Supervisors
Brozak and Jeffers approached McClain to discuss a cir-
cular handed out by Respondent regarding management
rights . Her version of the conversation, however, was
that they told McClain that the Respondent would main-
tain the right to manage the facility with or without a
union "to the best of their knowledge " i.e., to the best of
their ability (Tr. 329). I do not find that there was any
implication of the futility suggested by the allegations of
the complaint . I conclude that the supervisors were
merely telling McClain and other employees that with or
without the Union , Respondent would still have the
right to manage the facility . I recommend to the Board
that in the absence of other evidence , General Counsel
has failed to prove that, by the conduct of these supervi-
sors, the employees would regard it as futile to select the
Union as their bargaining representative . The complaint
allegation should be dismissed as unproven.
I need not rule on the question of whether Brozak en-
gaged in unlawful interrogation since a finding on that
point would be cumulative.
The suspension of Sandra Ash
The complaint (par. 6(a)) alleges that Respondent un-
lawfully suspended Sandra Ash for 3 days without pay
on August 26, 1987 . Respondent admits the suspension
but denies the alleged unlawfulness.
In establishing the facts under which Respondent sus-
pended Sandra Ash, I observe, as a preliminary matter,
that although the testimony of Sandra Ash and her
coemployee, Barbara Holdcroft , tended to minimize any
activity showing Ash's lack of negligence , Respondent's
witnesses (Linda Miller and Brian Sturgeon) demonstrat-
ed a lack of credibility based either on animus (Linda
Miller's testimony , from time-to-time , bordered on the
hostile) or Sturgeon 's self-contradiction . Most of the
facts underlying the 3-day suspension , however, are not
in dispute.
A. Background
Sandra Ash was hired as a nurses aide in May 1983.
She thereafter received periodic merit pay increases and
evaluations of her performance . The documents compris-
ing her merit pay increases and the annual performance
evaluations show that Respondent 's supervisors consid-
ered Ash to be an employee of the highest rank: "out-
standing ." "Outstanding" is the highest positive rating on
Respondent 's evaluation forms, running from "low satis-
factory" through "satisfactory" and "very good" to
"outstanding ." Thus in November 1984, Director of
Nursing Linda Loos, characterized Ash as being "hard
working" "caring" and being an "honest person" who
took "very good care of the residents and can be counted
on to fulfill her responsibilities ." For the same period,
another supervisor concluded not only that Sandra Ash
was a "joy to work with" but was a "great inspiration"
in terms of her ability to work harmoniously with cowork-
ers, supervisors, and the public . This evaluation contains
the supervisor 's gratuitous exclamation points apparently
-underlining her estimation how great an inspiration
Sandra Ash was as an employee (emphasis supplied).
In the 1985 evaluation , in which Ash was awarded a
further merit increase, the supervisor characterized her
as: a "dependable steady worker who gets along well with
residents and staff alike . . . can be counted on when
things need to be done. Knowledgeable of job tasks.
Very interested and enthusiastic . A caring person that I
enjoy working with." (Emphasis added .) The supervisor
did have one suggestion : That Sandra Ash invest in a
new alarm clock . In Linda Loos' evaluation in 1985,
however, it was noted that Ash had various occurrences
of lateness and had "worked off" two of these "occur-
rences." While she was no longer rated outstanding by
Loos, Loos rated her "very good" and noted that she
was "a good worker" who gives "good care" to resi-
dents.
In the 1986 evaluation, however, Loos again rated
Sandra Ash outstanding and noted that she was a "kind
and caring employee" who gives "excellent care to the
residents and is good to them . She treats them with re-
spect and is always willing to help them."
To round out and give a fuller picture of Sandra Ash,
rightfully diminishing Respondent 's consistent declara-
HICKORY CREEK NURSING HOME 1151
tions of her apparent paragon status, Respondent notes
that on May 29 , 1987, Sandra Ash was "counseled" for
exchanging her assigned lunchtime with another employ-
ee without consulting the charge nurse . The document
notes that Ash was being "counseled and reminded that
she is expected to follow the rules and assignments her
supervisors give her" (R . Exh. 4). The document does
not suggest , nor does Respondent argue , that it consti-
tutes an oral or written reprimand.
Of a different nature is a written warning of the same
date , May 29 , 1987 . This warning, issued by Director of
Nursing Linda Loos, who also issued the counseling
notice relating to Sandra Ash's unauthorized change of
lunchtime , supra, relates to reports that Ash, during the
week, had spread false rumors and gossip regarding an
employee who had quit . The false rumors were that Ad-
ministrator Brian Sturgeon laughed in an employee's face
when she tried to talk to him; that Supervisor Linda
Miller had told an ex-employee that it was the fault of
the ex-employee that caused her to work alone ; and that
Supervisor Miller and Linda Loos "jumped all over" an-
other employee blaming that other employee for what
happened to the employee who quit. The reprimand
notes that the underlying incident was none of Ash's
business and that the false rumors caused unrest among
employees . Loos determined that the spreading of
rumors violated a Class 1 work rule which prohibits em-
ployees from engaging in obscene or abusive language,
malicious gossip , or spreading rumors . The supervisor
recommended , and Brian Sturgeon affirmed , that the
punishment would be a written warning but that further
conduct of that nature would result in termination (R.
Exh. 4). There is no suggestion or allegation, much less
proof, that these admonitions , bearing the same date,
stem from any activity protected by the Act.
B. The Bathroom Incident Involving Resident-Patient
Ellen Bradberry
On Friday, August 21 , 1987, nurses aides Sandra Ash
and Barbara Holdcroft took two elderly residents, Berle
O'Mara and Ellen Bradberry , to the bathroom . O'Mara
was to use the toilet; Bradberry was to be showered. Re-
jecting Ash 's and Holdcroft's assertion of their mutual
responsibility for both residents , I find that Ash was in
charge of Bradberry and Holdcroft was in charge of
O'Mara . Ash placed her patient , Bradberry, on the seat
in the shower . At the same time , Holdcroft, 10 to 12 feet
away , needed Ash's assistance to lift O'Mara to the toilet
seat . Thus, she asked Ash to help her raise O'Mara to the
toilet seat . Ash closed the shower curtain , leaving Brad-
berry sitting on the shower seat, and helped Holdcroft.
Ash thereafter was returning to the shower stall when
Supervisor Linda Miller walked in. The testimony is in
dispute at this point . Ash and Holdcroft would assert
that Ash was walking directly back to attend to Brad-
berry; but Miller testified that when she entered the
bathroom, she saw Holdcroft and Ash standing in the
middle of the room talking to each other (Tr. 352). Ash
denies this . At this moment, in any event, Bradberry fell
from the shower chair, her head emerging from under
the shower curtain . While the evidence is not entirely
clear as to Bradberry 's mental condition while in Ash's
custody , I conclude that , at least from time-to-time, she
was known to have been emotionally agitated , fully ca-
pable of fighting the nurses aides, and not being coopera-
tive when they attempted to care for her (Tr. 353).
There is no evidence that , at this time, however, Brad-
berry was emotionally or physically unstable. In any
event , Bradberry fell, striking her forehead and knee on
the floor. This ultimately resulted in a large black and
blue mark (hematoma) on the forehead and lacerations
on the forearm.
As part of her investigation of the occurrence , Super-
visor Miller asked Holdcroft and Ash to submit written
incident reports, which they did . Miller herself submitted
a written statement as a witness to the incident (R. Exh.
4). In this August 21 , 1987 report (same day as the inci-
dent), Supervisor Miller stated that when she entered the
shower room , the shower curtain was pulled closed, and
she saw Holdcroft and Ash "standing outside of the
shower area." The report does not state that Ash and
Holdcroft were standing in the middle of the floor, talk-
ing.' At or about the same time , Miller reported that
after she spoke to Ash and Holdcroft about the incident,
they both acknowledged , after the safety guidelines were
noted to them , that they should never have left Brad-
berry alone.
In an August 25, 1987 report , Director of Nursing
Linda Loos stated (R. Exh . 4) that "in accordance with
safety procedures and common practice , Sandra Ash was
neglectful in leaving Ellen Bradberry unattended for any
period of time ." (Emphasis added.)
In her testimony , Supervisor Miller distinguished Ash's
failure to attend Bradberry in the shower room, with a
closed shower curtain, as out of the ordinary and differ-
ent from other incidents in which residents were injured,
because the other incidents did not concern neglect of a
resident (Tr. 362). But Miller also testified that Ash ad-
mitted that Bradberry had been placed in the shower in
an unsafe manner . Although this also appears in supervi-
sor Linda Miller 's August 21 , 1987 report (R. Exh. 4),
Ash denied making any such admission to Miller. I find
only that Ash admitted - leaving Bradberry alone in the
shower. While I do not find that she actually admitted to
Miller engaging thereby in an unsafe practice, I do find
that , as above noted , both Holdcroft and Ash admitted
that they should not have left Bradberry alone.
It is undisputed , for instance, that Respondent's em-
ployee Orientation Handbook (R. Exh . 3) directs em-
ployees, in the case of bathing a resident : "take all safety
precautions to prevent slips and falls . Never leave a resi-
dent unattended in the bathtub or shower!" There is con-
flicting testimony as to whether Ash, and other nurses
aides, were ever instructed by Miller personally, or only
by nurses aides, how to properly bathe a patient. As
above noted, the evidence shows that at least from time-
to-time , Bradberry was a disoriented and uncooperative
* Supervisor Miller testified that her incident report of August 21 was
written immediately because she wanted to get "all the details down
about the accident itself" (Tr. 355). Among the missing details is any sug-
gestion that Holdcroft and Ash were talking to each other while Brad-
berry fell to the floor . Miller testified that Holdcroft and Ash were only
3 to 5 feet from Bradberry when she fell (Tr. 365).
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
patient who needed personal supervision , particularly in
places like the shower room . I find, in any event, that
regardless of the handbook, Ash knew that shower
rooms are places of danger for elderly (and sometimes
emotionally unstable) residents; that she was negligent in
caring for Bradberry; and that Respondent could reason-
ably so find.
The Ash and Holdcroft incident reports were re-
viewed by Linda Miller who submitted her report to Di-
rector of Nursing Loos. Loos reviewed the statements of
Miller and the two aides and prepared a report for Ad-
ministrator Brian Sturgeon (R. Exh. 4): As above noted,
Loos' August 25, 1987 report to Sturgeon concluded that
Ash was neglectful in leaving Bradberry unattended for
any period of time . As a result of the reports and after
conversations and conferences with Director of Nursing
Loos and Supervisor Miller (Tr. 500), Sturgeon decided
not to impose the ultimate discipline of termination, but a
lesser penalty of a 3-day suspension without pay. He tes-
tified that his supervisors told him that Ash was a "rea-
sonably good employee, a good nursing assistant and
performed her job" (Tr. 505).
Although Sturgeon's own memorandum of August 25,
1987, states that the 3-day suspension without pay was
due specifically to Ash's willfully neglecting Bradberry
(R. Exh. 4), and although Sturgeon testified that this
"willful neglect of the resident" (Tr. 501) constituted a
Class 1 violation under Respondent 's rules, Sturgeon ad-
mitted that "willful patient neglect" is not listed among
the Class 1 violations (Tr. 502). Rather Sturgeon further
admitted that "willful neglect of a resident ," as a pro-
scribed act , is only suggested or implied in the broad
headnote preamble to the work rules (Tr. 503).5
There is no indication on the record that management
ever notified any employee that "willful neglect" of a
resident was to be added to Class 1 rules.
Supervisor Linda Miller, however, testified at some
length, with considerable force, that Sandra Ash's con-
duct in leaving a sometimes emotionably unstable patient
like Bradberry alone in the shower, with the shower cur-
tain pulled , was tantamount to a willful act. It was will-
ful, she said , in the sense that Ash knowingly closed the
curtain on a potentially difficult and unruly patient. She
also testified that the shower room area was dangerous
because the floor was wet and slippery. (Tr. 351-352.)
As General Counsel points out, however, the testimony
is uncontradicted (Tr. 598) that the showering procedure
had not started at the time that Ash left Bradberry in the
shower chair, and therefore the floor was not shown to
have been either slippery or wet. The testimony is also
uncontradicted and credited that, at that particular time,
Bradberry was not disoriented (Tr. 598-599).
S Respondent 's employee handbook (R. Exh . 6), p. 24, sec. VI, pro-
vides : Work rules : the Nursing Center's Work Rules are divided into
Class I and Class 2, with violations of Class 1 rules being considered
more severe offenses . It is impossible for printed work rules to cover
every potential circumstance which might necessitate invocation of disci-
pline, but this listing will serve as a guide to management in applying
comparable discipline for offenses of comparable severity . Any rule may
be revised , rescinded, revoked , or modified and new or additional rules
may be adopted , provided that management will endeavor to notify all
employees of any such new or changed rule.
On the other hand, although Ash testified that she was
not standing in the middle of the floor talking to Hold-
croft, but was on her way back to attend to Ellen Brad-
berry when Supervisor Miller walked into the room (Tr.
599), she admitted that it took her 1-1/2 minutes to leave
Bradberry in the shower chair, proceed over to help
Holdcroft with O'Mara, and return to attend to Brad-
berry (Tr. 601). Nurses aides, whether showering pa-
tients or placing them on commodes , often turn their
back for at least a few seconds in order to get towels or
receive other help in aiding the patient in the bathroom
area.
The evidence shows, and Respondent concedes, that
during Sturgeon 's administration in the period January
1986 to September 1987 (when Ash was terminated)
there were 190 incidents involving patient falls (Tr. 527)
with or without patient injury . Respondent apparently
concedes that in 12 incidents mentioned in the hearing, 7
of the 12 involved situations where the resident was
under the care of a nurses aide (Br. at 6).
Sturgeon admitted that in the period of his June 1986
(Tr. 545) administration, until the August 1987 suspen-
sion of Sandra Ash, no nurses aide had ever been dis-
charged or even suspended for neglect of duty or bad
patient care (Tr. 508). He then testified (Tr. 510-511),
however, that he had heard from Director of Nursing
Loos and Supervisor Miller that nurses aides had been
suspended or discharged for neglect of duty, but he did
not remember the particular incidents (Tr. 510). Linda
Loos had been director of nursing for 4- 1/2 years and
Supervisor Miller had been at Hickory Creek (since its
opening) for 7 years (Tr. 510). Neither Loos nor Miller
were called to testify to support Sturgeon 's testimony
that they had told him of incidents of discipline of any
kind (much less suspension or discharge) accorded to
nurses assistants for neglect of duty or bad patient care.
With regard to various incidents both where patients
were injured and Respondent thought it prudent to con-
tact a physician (G.C. Exh. 2(f)) and with regard to re-
ported injuries where physicians were not called, Re-
spondent distinguishes the fact that no discipline was
meted out to any person for any such injuries to its resi-
dents on three grounds : in none of the 12 incidents was a
supervisor present as a witness to investigate or prove
the negligence of any party; many of the incidents did
not occur in the shower room; and lastly, there was no
proof in some of the injuries that the resident was under
the care of a nurses aide (R. Br. at 5-7).
Discussion and Conclusions
1. The prima facie case of unlawful suspension
Although the evidence , on Sandra Ash's own testimo-
ny, shows that other employees present at Respondent's
August 17 meeting identified themselves as union sup-
porters, the evidence fails to disclose that any other em-
ployee was angrily identified by Respondent's chief offi-
cer, Greg Nelson , as the union "spokesmember" and told
to sit down, shut up, and give other employees a chance
to speak. In order to prove a violation of Section 8(a)(3)
of the Act, as alleged , both in this suspension, and the
HICKORY CREEK NURSING HOME 1153
subsequent termination , of Sandra Ash, it is necessary for
General Counsel to prove Respondent's knowledge or
belief that Sandra Ash was engaged in union activities,
and further prove that Respondent discriminated against
her in order to discourage her (or other employees) from
engaging in union activities. (a) The requirement of Re-
spondent knowledge is demonstrated not by inference in
the instant case; rather , the uncontradicted evidence
shows that it was Respondent's chief officer who, after
Ash repeatedly confronted him as a union supporter,
identified Sandra Ash as the union "spokesmember"
among the other employees . He told her to sit down and
shut up. I find that Nelson , and Sturgeon who was
present, in the absence of other evidence , thereby distin-
guished Ash from among any other union supporters. (b)
Insofar as the element of union animus is concerned, that
appears to be granted since (1) Ash's credited , uncontra-
dicted testimony was that Nelson's tone was angry in
identifying her as the union "spokesmember"; and (2) the
purpose of the meeting, according to Respondent, was to
discourage employees from support of the Union. Re-
spondent's officer , Greg Nelson , took a prominent part
in suggesting to the employees that they did not need a
union to represent them . Indeed, he brought to the meet-
ing employees from Respondent 's nearby Scenic Hills es-
tablishment , where Respondent had successfully thwart-
ed a union organizing campaign . And as Nelson assured
the Hickory Hills employees , the union makes enemies
among employees . Thus, General Counsel proved, I con-
clude, that Respondent was possessed of union animus;
had knowledge that Sandra Ash was prominently en-
gaged in union activities (indeed , was apparently the
most prominent union supporter identified by Respond-
ent); was angry at Ash because of her outspoken support
of the Union ; and suspended her 8 days after acquiring
this knowledge , as counsel for Respondent acknowledges
(R. Br. fn . 4 at 10) for "willful neglect" of a patient in
violation of an undelineated work rule prohibiting such
conduct . Yet no employee had even been disciplined for
such conduct and no nurses aide had ever been disci-
plined , on this record , for any reason involving mishan-
dling of, or injury to, a patient , or for any other reason.
Respondent attacks the prima facie case by showing
that Brian Sturgeon, who was present at the August 17
antiunion meeting , had no recollection of Nelson desig-
nating Ash as the "spokesmember" (Tr. 481). Counsel
also suggests that what Nelson might have meant by
"spokesperson" is a matter of "interpretation" (R. Br. at
10) and that it was merely an "off-hand remark." Since
Nelson never was called to testify, either to deny having
made the statement , to interpret it benignly for the
record , or even to deny his anger , it cannot be dismissed
as an "off hand remark ." The angry identification of Ash
as the union "spokesmember," supported , as counsel for
Respondent acknowledges , by the testimony of other
General Counsel witnesses, is a serious matter . The fact
that Nelson did not label Ash as a union "ring leader" or
"troublemaker" does not distinguish the case . In an an-
tiunion meeting, convened by Respondent, addressed by
the top corporate supervisor , Nelson (who himself said
he was against the union) angrily identifying Ash, among
other employees, as the union "spokesperson" cannot
reasonably carry a benign inference . The fact that Ad-
ministrator Brian Sturgeon suspended Ash, and Greg
Nelson did not, does not make a difference . Brian Stur-
geon was present at the antiunion meeting in which his
superior , Greg Nelson , angrily designated Ash as the
union "spokesperson ." That is sufficient for Sturgeon's
understanding and knowledge.
Respondent also argues that it gives him "pause" (Br.
at 10) that several General Counsel witnesses happened
to remember the use of "spokesperson " being used by
Nelson in the meeting 5 months prior to their testimony.
He suggests that the witnesses were coached in testifying
concerning Greg Nelson 's use of the word "spokesper-
son" because they recalled this word 5 months after the
word was used . But Nelson was not called to deny it;
and nowhere in counsel 's cross-examination of General
Counsel 's witnesses was there an attempt to have Gener-
al Counsel produce the witnesses ' prior statements, if
any, to inquire whether they had recorded testimony
concerning use of the word "spokesperson" or "spokes-
member" at a time substantially earlier than their testi-
mony . My observation of the witnesses did not otherwise
suggest that they were coached or that their testimony
was other than spontaneous.
I conclude that General Counsel , having proved Re-
spondent's knowledge of, and animus regarding Ash's en-
gaging in union activities , and the timing of the discrimi-
natory conduct (the suspension) only 8 days after this
demonstration of knowledge and animus , proved a prima
facie case . Tama Meat Packing Corp., 230 NLRB 116
(1977), enfd. 575 F.2d 661 (8th Cir. 1978), cert. denied
439 U.S. 1069 (1979). In further support, as above noted,
Respondent had never disciplined any employee for will-
ful neglect of a patient and, in fact , had never suspended
or discharged a nurses aide for any reason . Independent
Stations Co., 284 NLRB 394 (1987).
Quite apart from the observed favorable demeanor of
General Counsel 's witnesses on this point, and their
mutual corroboration of each other with regard to Nel-
son's identification of Ash as the "spokesperson," there is
the more significant failure of Respondent to call (or ex-
plain the failure to call) Greg Nelson as a witness to
deny or explain the use of the word. The failure to
produce Respondent 's chief supervisor as a witness to
deny or explain the testimony of General Counsel's wit-
nesses cannot but lead to an inference that , had Nelson
been called , his truthful testimony would have been ad-
verse to Respondent 's position . I need not draw such ad-
verse inference , however, to credit General Counsel's
witnesses and to give little or no weight to Sturgeon's
lack of recollection of the use of the word "spokesper-
son" ("spokesmember"). See NLRB v. Laredo Coca-Cola
Bottling Co., 613 F.2d 1338 ( 1980), cert . denied 449 U.S.
889 (1980).
Lastly, in support of the prima facie case (more fully
explored in dealing with the Respondent 's defenses), on
the present record, it was only Sturgeon who character-
ized Sandra Ash's conduct as "willful neglect" of Brad-
berry in his August 25 Employee Warning memorandum.
Supervisor Miller 's supporting August 21, 1987 memo-
randum and addendum merely states that Ash and Hold-
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
croft acknowledged to her that Bradberry should not
have been left alone . Miller might reasonably conclude
that Ash was negligent; but there is no suggestion of
willfulness in her memorandum . Similarly, in a memoran-
dum by Nursing Director Linda Loos , dated the same
day as Sturgeon 's August 25 , 1987 memorandum (sus-
pending Ash for 3 days), there is Loos' statement only
that Sandra Ash "was neglectful in leaving Ellen Brad-
berry unattended for any period of time ." There is no
suggestion here , again , of any willfulness on Sandra
Ash's part. I mention this merely to indicate that , on this
record , it was Sturgeon 's creation , alone, to characterize
Ash's conduct as "willful." Neither "willful" nor any
suggestion of willful misconduct appears in the support-
ing statements of the supervisors who evaluated her con-
duct , or indeed , in the statement of the supervisor who
witnessed it (Miller). Without any further or other
record explanation , it was Sturgeon alone who, believing
it desirable to dramatize and transform an otherwise neg-
ligent act into a matter of intentional misconduct , created
and invented "willful" in order to make Ash's conduct
more heinous . The reason for this characterization is
clear. Ash's misconduct could then become a subject for
another Sturgeon creation : the invention of "willful neg-
ligence" as his new-minted Class I rule violation. These
two Sturgeon creations can lead , in my judgment, to no
inference other than a further demonstration of animus:
Sturgeon 's desire to find a basis for punishing Ash.
I conclude that General Counsel has proved a prima
facie case of unlawful discrimination in the suspension of
Sandra Ash on August 25, 1987, for a period of 3 days,
in violation of Section 8(a)(3) of the Act.
2. Respondent's defenses
As above noted, Respondent , advanced four elements
as a defense, supporting the lawfulness of the August 25,
1987 3 -day suspension of Sandra Ash. In sum, Respond-
ent argues that the Sandra Ash 's conduct with regard to
Bradberry was unique in the four following respects: (a)
none of the other 12 incidents involving patient injury or
mishandling were indeed witnessed by supervisory per-
sonnel ; (b) the patient was not shown to be under the
care of a nurses aide; (c) there were no serious injuries to
the patients . In addition , (d) the Bradberry incident was
unique because it occurred in the shower room . Nurses
aides conduct in the shower room is subject to a specific
Respondent admonition of extreme care , which admoni-
tion Ash disregarded.
Respondent argues (as Supervisor Miller testified but
had failed to include in her August 21 statement as a wit-
ness) that the very uniqueness of the accident manifested
"willful" misconduct . As such, it was a violation of Re-
spondent 's "Class I" work rules and mandated , under the
circumstances of the injury to Bradberry, a suspension.
Respondent also argues that , since it failed to punish
Holdcroft, a known union supporter , its suspension of
Ash was not due to her union support.
This last argument is without merit. Respondent knew
from a list (R. Exh . 2) signed by dozens of its employees,
that many employees supported the union. None of
them , however , was publicly and angrily identified as the
union "spokesperson" by the chief supervisor. Ash was.
The "Class I" Violation in Respondent's
Employee Handbook
Sturgeon testified at length concerning Ash's 3-day
suspension as being bottomed on a Class I violation of
Respondent 's work rules as they appear in the employee
handbook . In particular , he testified that Ash's Class I
violation appeared in section 6 (work rules ) at page 24 of
the handbook . The Class I violation which could lead to
suspension or dischage , according to Sturgeon , was that
Ash "willfully neglected the resident," a Class I violation
(Tr. 501 ). The separate further Class II violation , he said,
was that she did not follow proper safety procedures
(Tr. 501).6
Respondent's assertion that Sandra Ash 's conduct was
a violation of a Class I work rule is without foundation.
As Sturgeon admitted, "willful patient neglect" nowhere
appears in the Class I work rules . "Willful patient ne-
glect" as an item does not appear in the work rules at all.
As Sturgeon admitted (Tr. 501-504), "willful neglect," as
a work rule violation , was a matter essentially of Stur-
geon 's ipse dixit . He created a Class I violation because
he felt that Ash had engaged in serious misconduct and
relied on the language in the section 6 "headnote" which
states that not all Class I work rules and violations there-
of appear in the listed work rules . In any event , "willful
neglect" of patients simply does not exist as prohibited
Class I misconduct . In addition , however, since none of
the evidence at the hearing, or the supervisors' memo-
randa supporting Sturgeon 's conclusion , mention "will-
fulness," even if "willful neglect" were a Class I rule
violation, the evidence does not support the conclusion.
As above noted , neither Supervisor Miller (the witness
to the event) nor Director Loos (the reviewer) suggested
that Ash's conduct was "willful ." That was Sturgeon's
creation.
Sandra Ash 's Conduct as a Violation of a
Class II Work Rule
Sturgeon also testified (Tr. 501) that Ash' s failure to
follow "proper safety procedures" (Tr. 501 ) constituted a
violation of a Class II work rule. As noted in the margin,
however, there is no violation of Class II work rule for
failing to follow "proper safety procedures"; rather, as
appears in (N) at page 26 therein, it is the "willful " viola-
tion of a safety procedure or a work rule that brings it
within the Class II prohibition. As I have otherwise
noted , there is nothing in the record to support a conclu-
sion of "willfulness" on Ash's part except Sturgeon's
conclusion of August 25 in his memorandum . Again, as
previously noted, the supporting memoranda of Stur-
geon's supervisors, upon which he allegedly concluded
that Ash's misconduct was a violation of both Class I
and Class II work rules based upon "willful" miscon-
duct, nowhere suggest, describe or conclude Ash's mis-
° The Class II violation , however, as it appears in the work rules (sec.
6 at 26, R. Exh . 6) is not , as Sturgeon testified (Tr. 501 ), that she failed to
follow "proper safety procedures"; rather, the work rule appears in (N),
at page 26, which prohibits only "willful violation of safety rules or
safety procedures." Thus, as appears in the above text , the necessity for
Sturgeon to invent and allege Ash's "willful" misconduct in order to
cause a violation of either the Class I or Class II work rules.
HICKORY CREEK NURSING HOME 1155
conduct as "willful." To the contrary, I have inferred
that Sturgeon 's baseless construct of "willful" was evi-
dence of animus.
I therefore conclude that on the basis of Respondent's
work rules, (a) there is no work rule which forbids as a
Class I violation , willful neglect of the patient ; (b) with
regard to the Class II work rule , I conclude that Stur-
geon created the "willfulness" of the violation in order
to come within the Class II violation where there were
no supporting documents from his own supervisors (or
evidence adduced at the instant hearing) to suggest
"willful" misconduct . I therefore further conclude (c)
that even if "willful neglect " of a patient was a Class I
work rule violation , there is no preexisting evidence to
support proof of, or Sturgeon 's conclusion of, Ash's will-
ful misconduct and no evidence thereof adduced at the
hearing . That she might well have been negligent in han-
dling Bradberry is a totally different matter.
In this regard , I do not substitute my judgment for
Sturgeon's, Miller's or Loos' judgment that there was
misconduct-perhaps serious misconduct ; rather, I con-
clude only that Sturgeon manufactured "willfulness" of
Ash's conduct in order (a) to create a Class I violation
and (b) to bring it within the Class II work rule. That
Ash may have engaged in misconduct is clearly a matter
of Sturgeon 's judgment; to characterize it, without evi-
dence , however, as a willful act in order merely to meet
Respondent's work rule prohibitions is quite a different
matter and does not support a reasonable defense.
Sandra Ash's Negligent Misconduct as a
Punishable Matter
As counsel for Respondent concedes , in citing the 12
incidents of patient "incident" or injury, there has never
been an instance where a nurses aide was discharged or
suspended for misconduct . The defense that the dozen
instances of possible misconduct were never witnessed
by supervisors , thus supporting a "lack of proof" de-
fense , is unconvincing . The failure of Respondent to in-
vestigate instances of patient injury , some of which re-
quired the attention of physicians , necessarily avoided in-
quiry into the responsibility of Respondent 's nurses aides.
Why this was not done does not depend on the fact that
no supervisor ever witnessed it. The existence of eyewit-
nesses may be one element in the failure to investigate
but it does not suggest that there never was negligence.
Indeed , one might reasonably conclude that Respondent
never investigated any of the 12 or more instances of pa-
tient "incidents" (falling off commodes, falling in the
shower, falling out of walkers), whether or not there
were eyewitnesses or the patients were in the custody of
the nurses aides, because Respondent may have sought to
avoid the appearance of its own negligence . Thus the
failure to discipline nurses aides or other personnel for
misconduct in handling patients cannot necessarily be as-
cribed to the fact that the nurses aides were never negli-
gent; rather it is ascribable to Respondent 's reasonable
desire not to create a record on which its own liability
for negligence could be predicated.
Moreover, as Sturgeon admitted , aside from this histo-
ry of nonpunishment of any of its nurses aides for any
willful neglect or any other type of neglect of the resi-
dents, it appears that no nurses aide has ever been fired
or suspended for neglect of duty of any kind, whether
bad patient care or otherwise . Therefore , Sandra Ash's
punishment , even for negligent handling of a patient, ap-
pears to have been something extraordinary.
With regard to Sturgeon 's credibility , concerning the
gravity of Ash's negligence , he testified that he did not
know if Respondent had ever fired or suspended a nurses
aide for neglect of duty (Tr. 508). He clearly testified,
however, that he had heard from his supervisors, Loos
and Miller (Tr. 511), that nurses aides had been suspend-
ed or discharged for neglect of duty (Tr. 510), but he
could not remember the particular incidents . It was es-
tablished that Supervisor Miller had been employed in
the establishment for 7 years and Director of Nursing
Loos for 4-1/2 years (Tr. 510). They were never called
to support Sturgeon and to establish that any nurses aide,
at any time (in the 7 years of Miller's experience or the
4-1/2 years of Loos' experience ) had been disciplined for
patient neglect or for any other reason . I necessarily, and
reasonably , infer from Respondent 's failure to call its
own supervisor, Miller, a witness in this matter, to sup-
port Sturgeon , on his specific testimony involving them,
that her truthful testimony would show that no nurses
aide had ever been suspended or discharged for neglect,
"willful neglect ," gross negligence, intentional misbehav-
ior, or any other patient-handling misconduct . Miller had
been there since the opening (Tr. 511).
When, moreover , Sturgeon was presented with the
question whether Respondent had fired any nurses assist-
ant, or any other employee , for any reason whatsoever, he
asserted that there had been such discharges (Tr. 508);
that Paul Smith , a cook, was fired for serving uncooked
food (Tr. 513), and a nurses aide, Patty Flickenger, was
fired for misconduct : she smashed the glass face on the
timeclock in a fit of anger (Tr. 514). This Flickenger epi-
sode, however , was after the discharge of Sandra Ash
(Tr. 514). It therefore appears that , in the history of the
nursing home , in the 7 years prior to Sandra Ash's dis-
charge , no nurses aide was suspended or discharged for
misconduct involving the handling of patients ; no such
action , contrary to Sturgeon 's testimony, had ever been
reported to him ; and the only nurses aide who had ever
been discharged for any reason since the opening of the
establishment in 1980 occurred after the discharge of
Sandra Ash and that was for punching out the glass face
of the timeclock.
I therefore conclude on the basis of Sturgeon 's testi-
mony, and the evidence as a whole , that the history of
nonpunishment for incidents involving nurses aides with
patients demonstrates that the punishment of Sandra Ash
was indeed unique; but that the uniqueness was not based
upon her "willful" misconduct (there was none), or be-
cause of a Class I rule violation . There is no such rule.
Moreover, I conclude that Sturgeon 's creation of
"willfulness" in Ash's misconduct , where there is no sup-
port for "willfulness" in his supervisors ' memoranda, and
his invention of a Class I rule violation adds to the infer-
ence , which I draw , that the punishment meted out to
Ash was based upon Sturgeon 's animus; and, under the
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
facts here, absent some other explanation concerning this
union "spokesperson ," it was union animus.
In so concluding , I nevertheless do not suggest that
Sandra Ash was not negligent . Her own testimony shows
that it took her 1-1/2 minutes assisting Holdcroft, to help
O'Mara off the toilet. In that period of time, Ash left the
unstable (but not then belligerent) Bradberry on the
shower chair with the curtain closed. This might well be
negligent conduct. Moreover, this would constitute neg-
ligent conduct for which Ash reasonably could have
been punished . But to indulge in the legal mumbo jumbo
of Sturgeon 's ipse dixit spawning of a Class I work rule
against "willful negligence" and then finding Ash to be
in violation of this new-minted standard when no subor-
dinate supervisor avers "willful" misconduct, is unac-
ceptable as a defense . Further, to punish her for "willful"
misconduct and to bring her within the Class II prohibi-
tion against willful failure to follow work rules would
normally be a basis on which to punish her. However,
instead of punishing her for a Class II violation by an
oral warning (first infraction) or a written reprimand
(second infraction) or suspension without pay (for third
infraction).7 Respondent suspended her without pay. As
previously noted , even a Class II violation would depend
on whether her conduct was "willful." And I have found
that it was neither willful in itself (merely a matter of
negligence) nor even suggested to be willful by the eye-
witness (Miller) or by the reviewing supervisor (Loos).
That Miller testified at the hearing that the misconduct
was willful cannot be given much weight.
Taken as a whole, therefore, and mindful of my obser-
vation of Sturgeon as a witness of suspicious credibility,
I simply may not credit Respondent 's defenses with
regard to ( 1) the existence of or prohibition in any Class
I rule; (2) the willfulness of the violation, whether of a
Class I or II rule ; (3) the uniqueness of the offense;8 or
(4) the disparate treatment accorded to Ash in the pun-
ishment.
In the instant case, the General Counsel carries the
burden of proving the elements of a prima facie Section
8 unfair labor practice to establish that Respondent's
conduct was based on union animus . The employer, to
avoid liability , then must shoulder the burden to prove
that its actions would have been the same regardless of
any forbidden motive . Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir . 1981), cert . denied
455 U.S. 989 (1982); see NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 401-403 (1983). This burden
Respondent failed to support.
4 Sturgeon never suggested that the punishment of suspension was due
to a third infraction of a Class II work rule. No other infractions appear
in the record.
8 Sturgeon conceded that in the 18 months of his tenure as administra-
tor (Jan . 1986-Sept . 1987) prior to Ash's termination there was a total of
190 reported incidents of residents falling (Tr. 527), 5 of which were resi-
dents falling from commodes , some resulting in pain and injury sufficient
to call a physician (Tr. 529-530) One incident involved a patient tripping
over a shower chair , falling backwards in the shower room (Tr. 531).
That patient , like Bradberry , was left unattended though combative (Tr.
532-535). None of these occurrences resulted in any discipline.
The Termination of Sandra Ash on September
26, 1987
Respondent concedes that it discharged Sandra Ash on
September 26, 1987, but denies an unlawful motive.
As Respondent observes (Br. at 11 ), Sandra Ash re-
turned to work following her 3-day suspension , and re-
sumed her duties in late August through September 10,
1987. She then went on a 2-week vacation and returned
to work on September 26, 1987. At the end of the work-
day, she was discharged for physically and verbally
abusing two employees , Shirley Smith and Gladys
Brown . These alleged incidents occurred in August 1987,
at the workplace, before Sandra Ash went on vacation.
The Discharge
On Saturday, September 26 at 3 p.m., Supervisor
Miller instructed Ash to go to Sturgeon 's office. In the
office, Sturgeon told her that employees had complained
to him of her having used abusive language toward
them; that this was not tolerable and he would have to
terminate her (Tr. 52). When Ash asked him who had
complained against her, he told her that he could not tell
her (Tr. 53). Ash then asked him when these occurrences
occurred (Tr. 53) and Sturgeon told her that he could
not divulge that information either . When Ash then
asked him whether these were new employees , Sturgeon
told her that he could not tell her that either but he told
her that there was more than one employee (Tr. 53).
Sturgeon did not give her any explanation as to why she
was being discharged other than what appears above.
As in the case of the Ash 's unlawful suspension, I con-
clude that General Counsel has proved a prima facie
case with regard to the discharge , as well . Thus the same
animus, and knowledge would relate to the discharge as
well . as the suspension . Moreover, Respondent, at the
time of the discharge , refused to give the names or the
incidents on which it based the discharge or, except for
"abusive language ," why it was discharging the employ-
ee. In the presence of an otherwise prima facie case, this
series of refusals to name names and specify reasons for
the discharge adds to the inference of unlawful motive.
Independent Stations Ca, 284 NLRB 394 (1987); Tama
Meat Packing Corp., 230 NLRB 116, 121, 128 (1977)
("we have not been authorized to give you a reason at
this time"), enfd. 575 F.2d 661 (8th Cir. 1978), cert.
denied 439 U.S. 1069 (1979). Not only did Respondent
refuse to give Ash the names of the complainants (so that
they might be confronted) or any of the details of the
reasons for the discharge (so that they might be refuted)
but necessarily failed to ask Ash for her version of the
incidents . This tactic, of course, effectively insured that
any explanation , defense, or mitigation would be un-
heard. The anonymous employee accusations would be
conclusive.
The Defense
Sturgeon testified that he discharged Ash based on
two written statements from her fellow employees (Tr.
516-517) (R. Exhs . 4M, 4K). After receiving the state-
ments, he spoke with the two employees , and the respec-
HICKORY CREEK NURSING HOME
tive supervisors of the two employees . Based upon the
written statements and his conversations with the em-
ployees, he decided to discharge her (Tr. 518). Neither
of the two complaining employees testified at the hearing
nor were their absences explained.
These statements were from employees Gladys Brown
and Shirley Smith , Brown being a nurses aide and Shir-
ley Smith , a cook (Tr. 517).9
Brown 's statement , dated September 24, 1987 (thus 2
days before Ash was terminated) alleges that around the
afternoon of August 25, she was standing behind the
door near the timeclock in the breakroom , and Ash
pushed open the door. Ash's opening the door almost hit
Brown . Brown told Ash that she had almost hit her. Ash
allegedly responded that "someone should push [you]
through the wall." The statement adds that Ash had a
"mad look on her face" and that Brown knew she was
"mad at me because I would not come to any of their
meetings and told them I was not interested in a union."
Shirley Smith 's statement , dated September 23, 1987,
asserts that on or about September 10, 1987, at the 9 a.m.
break in the breakroom , while she was sitting at a table
near the entry door to the room, Ash came in and
"walked into my feet ." Smith said : "Sandy!" but Ash ig-
nored her and never apologized for stepping on her foot.
Ash proceeded to go get her coffee. After getting the
coffee , Ash allegedly turned around , walked towards
Smith, and, as she got to Smith 's table, allegedly kicked
Smith in the foot and then laughed as she walked out of
the door.
Sturgeon testified that he did not discover the occur-
rences with regard to Smith until about 2 weeks after the
incident (i.e., about the date of the signed statement in
evidence); and with regard to Brown , about a month
thereafter (i.e., about the time of the signed statement,
September 24, 1987). Sturgeon testified that both em-
ployees told him that they felt so fearful and intimidated
that they feared to speak to any supervisor regarding the
incidents (Tr. 519).
As to why these employees reported these incidents at
the particular time in late September , Sturgeon suggested
that Ash was on vacation (Tr. 520) and "they felt that
they wanted to come forward . They felt that they'd
thought it over for that period of time and felt that they
had to tell someone about it ." Any other circumstances
concerning Smith 's and Brown 's conduct do not appear.
When Sturgeon discovered that Brown and Smith had
complained to the supervisors , he asked the supervisors
to bring the employees into his office to give written
statements . Sturgeon added that when Smith gave her
statement to him , she was crying (Tr. 522).
Sturgeon testified , contradicting Ash, that he did not
tell her that she was discharged for abusive language;
rather , that he had received complaints of physical and
verbal abuse from fellow employees (Tr. 524) and told
her she was discharged for violation of the Class I work
rule. He admits that she asked for the names of the ac-
9 Sturgeon testified that the substance of the two complaints from the
employees brought Ash's conduct within the violation of a Class I work
rule (G), threatening, intimidating, or coercing fellow employees on the
Nursing Home's property at any time for any purpose . This mandated
Ash being discharged.
1157
cusers; that he refused to divulge them because he told
her that the employees did not want their names re-
vealed (Tr. 524) and acknowledged nothing other than
that it was more than one individual involved (Tr. 524).
Sturgeon admits that he had never discharged any em-
ployee under a violation of that work rule before (Tr.
525) but asserts that he had never had a case of threats
or intimidation of a fellow employee before (Tr. 525). He
denied that Ash being a union supporter had anything to
do with her termination (Tr. 525).
Sturgeon admitted that when he made the decision to
terminate Ash he did not speak to her about that deci-
sion other than to inform her that she had been terminat-
ed (Tr. 539); that if he gave her specifics of the incidents,
it would probably identify the individuals and those indi-
viduals had asked for anonymity (Tr. 540). Although he
admitted giving "consideration" to the complaining em-
ployees' request for anonymity , he said he gave no "con-
sideration" to Ash and her ability to defend herself by
identifying the incidents on which her discharge was
based (Tr. 540-541). Sturgeon testified that he gave
Smith and Brown a promise of anonymity (Tr. 541) be-
cause the two employees were extremely upset and fear-
ful of "some retaliation" (Tr. 541 ). He told them he
would not mention their names.
He further admitted , however, that he did not know
whether employees Brown and Smith were telling the
truth with regard to their allegations of Ash's miscon-
duct (Tr. 541 ), and that when he asked Smith and Brown
to identify any witnesses to Ash's alleged misconduct,
neither of them could identify any witnesses (Tr. 542).
Sturgeon further admitted that, in his refusing to obtain
Ash's version of the incidents, he was not following.Re-
spondent's normal procedure which was to ask all parties
to give a statement (Tr. 550); and that if Smith and
Brown were not truthful , Ash would have been unjustly
terminated (Tr. 551-552).
Similarly , cross-examination disclosed that at the time
that these employees were so fearful that they requested,
and Sturgeon granted, anonymity, he told them that their
names might have to be divulged later at an unemployment
hearing (Tr. 552). He told them this before they gave
their written statements (Tr. 552-553) because he did not
want to mislead them (Tr. 553). When Sturgeon spoke
with Smith and Brown, they told him that Ash did these
things to them because they were against the Union and
she was for the Union (Tr. 555-556). Sturgeon testified
that he told them he was not interested in any reasons
why Ash had engaged in the alleged conduct; merely
what she did interested him (Tr. 558).
Lastly, Sturgeon testified that the above May 29 "per-
sonal conference" report and the May 29 "written warn-
ing" played no part in the discharge of Ash (Tr. 560).
When Respondent's counsel stated , in front of Sturgeon
on the witness stand, that he was seeking to show that
Ash was not "the best damn employee the place ever
had," Sturgeon nevertheless repeated that he discharged
Ash only because of the Brown and Smith incidents (Tr.
561). Thereafter, Sturgeon "took back" (Tr. 562) and
changed his testimony , testifying (Tr. 564) that if Ash did
not have the May 29 reprimand and oral conference re-
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ports in the record , he might have taken it into consider-
ation and not discharged her. He finally appeared to
settle on testimony that , with the Brown and Smith com-
plaints, he would have discharged her with or without the
May 29 memoranda in her file (Tr. 565). Thereafter,
however , in response to further questions from Respond-
ent's counsel , Sturgeon again changed his testimony and
testified that the May 29 records in her file played a part
in his decision to terminate her (Tr . 567). They were part
of the "total picture."
Sandra Ash denied ever having kicked Shirley Smith
or had any physical contact with her except hugging her
after Ash's cousin was killed in a motorcycle accident
(Tr. 591 ). Similarly, Ash denied ever telling Gladys
Brown that somebody ought to push her through the
wall or any statement like that (Tr. 594).
As a matter of alibi , Ash testified that on August 25,
she left the nursing home premises at 3:30 in a car with
coemployee Betty Kisor thus apparently not placing her
near Gladys Brown at 3:30 p .m. on August 25 (Tr. 596).
Ash testified that she knew of no reason why Smith
would manufacture the things which appear in the Smith
statement (Tr. 602) and asserted that she was a friend of
Shirley Smith (Tr. 602). Ash also stated (Tr. 604) that
she did not know why Gladys Brown would make up a
story about her which appears in her statement (R. Exh.
4(k)). Ash denied ever having spoken to Smith or Brown
about supporting the Union during the union campaign
(Tr. 605), or even discussing the Union with them (Tr.
606).
Betty Kisor testified, in rebuttal , confirming Ash's
alibi, that when they clocked out at 3 :30 p.m . on August
25, 1987 , she saw no one near the door as they neared
the timeclock . In particular , she denied ever having seen
Gladys Brown or Shirley Smith on August 25 (Tr. 610-
611). In particular, she did not see Gladys Brown near
the timeclock nor did she hear Sandra Ash threaten
Gladys Brown in any way at any time (Tr. 611).
Discussion and Conclusions
I have already found that General Counsel proved a
prima facie case in the suspension of Ash on August 25:
Identification by Respondent of Sandra Ash as the union
"spokesmember" among Respondent 's employees; union
animus; independent demonstrations of animus through '
independent 8(a)(1) unfair labor practices; and the timing
of the suspension (August 25) coming 8 days after her
being identified as the union "spokesmember ." I have
also taken into account , as above noted , that Respondent
suspended Ash for "willful patient neglect"; but Re-
spondent , on this record , has never suspended or dis-
charged a nurses aide for patient neglect in the 8 years of
Respondent 's operation of the facility, and, indeed, the
only record of a discharge of a nurses aide was of a ter-
mination (after Sandra Ash) for punching out the glass
cover of the timeclock in a fit of anger . I further find,
contrary to argument by Respondent, that Respondent's
own evaluations in evidence , demonstrate that Sandra
Ash came as close to being a paragon among the nurses
aides as apparently is possible , the counseling and warn-
ing of May 29 notwithstanding . Moreover , I am con-
strained to disregard Sturgeon 's shifting and self-im-
peaching testimony regarding whether or not he even
took into account (in terminating her) the May 29 mat-
ters which appear in her file : the oral counseling and the
written reprimand . Sturgeon had four shifts of testimony
with regard to whether he took these matters into ac-
count in deciding to discharge Ash and I am not per-
suaded that any of them accurately reflected his motiva-
tion in his discharge of Sandra Ash. Sturgeon 's testimo-
ny, indeed his credibility , when observed and when re-
viewed , hardly inspire confidence . Furthermore, though
190 instances of residents ' falling occurred at the nursing
home, and though in 7 of 12 examined cases, the resi-
dents were under the charge of nurses aides, and al-
though some were shower-room mishaps , no nurses aide
was ever disciplined.
Respondent 's Defenses ; Credibility
In the face of General Counsel 's prima facie case, we
reach the question of Respondent 's defenses . The prob-
lem of Respondent 's defenses is that Brian Sturgeon, the
nursing home administrator , was the person who alleged-
ly made the decision to terminate Sandra Ash . He gave
the reasons therefor . The fact is that I do not believe
Sturgeon 's testimony concerning his motivation in sus-
pending and terminating Ash. I observed him facilely
recant his testimony concerning the weight he accorded
Ash's May 29 counseling and warnings in his September
26 discharge . Apart from observation of his unflinchng
switch, perhaps based on the tone of questions put to
him, I was also not impressed with his shifting and con-
tradictory answers regarding whether he was interested
in why Sandra Ash engaged in the conduct for which he
discharged her. He testified he was not interested in why
she allegedly acted against Brown and Smith; only that
she actually engaged in the acts . He thereafter testified
that he was interested in why she did these things (Tr.
573). When then asked why he did not ask Ash for an
explanation for these acts, his response was only that he
did not think of it at the time (Tr. 573). In light of this
almost unintelligible testimony , I was necessarily dissatis-
fied with Sturgeon 's explanations of why, in discharging
Ash, he departed from his normal investigatory proce-
dure of obtaining statements from the parties to a dispute
and his grant of anonymity to Smith and Brown because
of their alleged fear of retaliation . But he told them,
before they gave their written statements , that he might
have to reveal their names if there were a legal proceed-
ing. Neither Smith nor Brown testified.
A. Respondent 's Failure to Accord Ash Due Process
Allegedly Leads to No Inference of Unlawful
Motivation
Nevertheless, Respondent interposed as its first defense
(R. Br. at 14) that : "The National Labor Relations Board
has never found due process to be required by Section
8(a)(3)." In advancing this proposition , Respondent re-
freshingly and candidly observes:
Probably the strongest objection to Ash's termina-
tion was the alleged denial of "due process." She
was not given the specifics of the charges against
HICKORY CREEK NURSING HOME
her, nor was she asked for her side of the story. In
an ideal employment setting , this is obviously not a
preferred method for employee relations . It does
not, however , establish that improper discrimination
has occurred here. l o
If Respondent, in arguing that Section 8(aX3) of the Act
does not require "due process," is referring to its failure
to conduct a reasonably full and fair investigation of
Ash's alleged misconduct , admittedly departing thereby
from its normal practice , certainly in the face of both its
own union animus and its identification of the object
(Ash) of Respondent's discipline as the union "spokes-
member," then Respondent's statement of the law is
simply incorrect . For, as the Board stated in Firestone
Textile Co., 203 NLRB 89, 95 (1973):
The Board has consistently held that an employer's
failure to 'conduct a full and fair investigation of an
employee 's alleged misconduct is evidence of dis-
criminatory intent, especially when viewed in light
of the employee's union hostility . [Citations omit-
ted.]
Similarly , where the employer has manifested union
animus and discharges an employee with an excellent
work record who was not given the reasons for the
action, and where the employee 's version was not asked
for prior to the discharge , the courts look with disfavor
on these failures in assessing an inference of unlawful
motivation . NLRB v. Shattuck Denn Mining Co., 362
F.2d 466 (9th Cir. 1966); Tama Meatpacking Corp. v.
NLRB, 575 F.2d 661 (8th Cir. 1978), cert. denied 439
U.S. 1069 ( 1979). Similarly , where an employer, in the
presence of a prima facie case, decides to discharge an
employee without hearing her side of the story, an infer-
ence of unlawful motive may be drawn . This is so even
where , unlike here , the employee is actually given the
specifics underlying the discharge but the employer re-
fuses to give the employee an opportunity to give her
side of the story. See: This is the very model of an em-
ployer fabricating a pretext to support a discriminatory
discharge. Clinton Food 4 Less, 288 NLRB 597 (1988).
Independent Stations Co., 284 NLRB 394 (1987).
In the instant case , however, Respondent urges that
this rule does not apply where "special circumstances"
require that due process not be offered and that no infer-
ence of discrimination can be drawn in the presence of
such special circumstances . It alleges that such "special
circumstances" exist in this case because Sturgeon gave a
promise of anonymity to Smith and Brown because of
their alleged fear of intimidation and retaliation by Ash.
In support of this assertion, it cites Westinghouse Electric
Corp., 277 NLRB 136 (1985). Counsel alleges that that
case stands for the proposition that the Board reversed a
fording of an 8(a)(3) violation in the discharge of an em-
ployee , charged with harassing fellow employees , despite
the fact that the accusers were not identified to the ter-
minated employee due to confidentiality concerns of the
10 As Sturgeon conceded , the failure to give Ash the specifics of the
charges against her and to ask for her side of the story was inconsistent
with Respondent 's normal procedure.
1159
accusers. However, Westinghouse Electric Corp., has little
bearing on the instant case. In Westinghouse Electric
Corp., the Board did not disturb the judge's finding that
the employer directed its interrogating supervisor to
afford the discharged employee "due process ." Indeed,
the findings were undisturbed that the alleged discrimina-
tee was not only shown the company handbook section
dealing with misconduct involving sexual offenses, but
the allegations against him were reviewed . In other
words, the employer specified, without naming the
names of the accusers , the specific acts of misconduct for
which the discipline was going to be meted out. That is
unlike the instant case where Respondent refused , specif-
ically, to delineate the acts of alleged misconduct. More-
over, in Westinghouse , the employee admitted to the em-
ployer having engaged in sexual harassment of at least
one employee ( Westinghouse at 155). Furthermore, as the
Board itself found (277 NLRB 136), the interrogating su-
pervisor was to give the accused employee an opportuni-
ty to respond. Here, the exact opposite was true: Here,
as in Independent Stations Co., supra, Sturgeon was not
interested in nor did he request , Ash's explanation for the
alleged misconduct . Ash was given no opportunity to re-
spond . Lastly, the interrogating supervisor in Westing-
house Electric Corp. was directed to take no action if the
accused employer gave any explanation of his alleged
sexual harassment . The opposite is true in the instant
case . The September 23 and 24 written accusations were
received by Sturgeon; he says that the accusations were
affirmed orally by the employees, and on the very next
working day that Ash appeared, Sturgeon discharged her
without giving her the specifics of the charges , without
giving her the names of her accusers , without giving her
an opportunity for any explanation whatsoever.
B. Respondent 's Grant of Anonymity Protects its
Failure to Disclose the Acts of Alleged Wrongdoing
and to Produce Smith and Brown as Witnesses
We are not here met with the legal effect of an em-
ployer's grant of anonymity to an employee in order to
protect the facts of the employee's personal life, capabili-
ties, and aptitudes . NLRB v. Detroit Edison Co., 440 U.S.
301 (1979). Here, there is an employer seeking to inter-
pose the "informer privilege" against an employee on
whose account the General Counsel has proved a prima
facie case of unlawful discharge . We need not, however,
even analyze that proposition (whether the employer's
grant of anonymity to an informer is a defense to a prima
facie case) here , because, Respondent's promise of ano-
nymity was conditional. See Postal Service, 280 NLRB
685 (1986), enfd . 841 F.2d 141 (6th Cir. 1988).
In any event , however, while it is true that the Brown
and Smith written accusations against Ash are hearsay,
and while it is true that General Counsel did not object
to their admission in evidence (Tr. 486-488), I cannot
give such statements much weight. Respondent 's refusal
to disclose the names and allegations to Ash prevented
Ash from confronting them prior to the discharge; there
is no element of corroboration for either of them; they
told Sturgeon that there were no witnesses to the events;
neither Brown nor Ash was produced to support the de-
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fense; thereafter, after Ash denied the occurrence of the
subject matter of the accusations in rebuttal , neither
Brown nor Smith were produced to confront Ash and
impeach her denials; nor did either Brown or Smith testi-
fy at the state unemployment compensation hearings; nor
did Respondent suggest a reason for the failure to
produce either Smith or Brown . In short, in the presence
of Respondent 's admitted union animus , its various inde-
pendent violations of Section 8(a)(1) of the Act, Ash's
denials of culpability, Respondent's failure at the time of
the discharge to advise Ash of the identity of her accus-
ers or the nature of the rule violations, Ash's apparent
credibility and the failure of Brown and Smith to ever
testify (to either directly support Respondent 's defense or
to impeach Ash's denials) in any forum , I am constrained
to credit Ash and to find that Respondent failed to sup-
port its burden to prove that it discharged Ash substan-
tially for the reasons contained in the accusations. Some-
time , someplace, following proof of Respondent's union
animus and a prima facie case of unlawful motivation in
the discharge , Ash should be able to confront her accus-
ers (especially where, as here, Respondent had the
burden to prove its own defense). In such circumstances,
the alleged Brown -Smith fear of retaliation-which fear
nowhere appears in their written accusations (Resp.
Exhs. 4(k), 4(m)) and is supported only in Sturgeon's
hearsay testimony-is insufficiently proved to support the
absences . I conclude, therefore, that there is a failure of
proof of "special circumstances" to make credible the
otherwise suspicious circumstances surrounding Stur-
geon 's behavior and to make inapplicable an inference of
unlawful motivation . In sum , in the face of Ash's denials,
Respondent 's failure to divulge specifics to Ash, failure
to conduct a reasonably fair investigation (admittedly de-
parting thereby from Respondent 's normal practice) and
its failure to produce Smith and Brown , do not support
Respondent 's defense that she was discharged substantial-
ly because of the Brown and Smith statements or inci-
dents.
As a third defense, Respondent urges that the Smith
and Brown statements , having been given independently,
there is more reason to accept the truthfulness of the al-
legations therein . This defense fails for the above rea-
sons . Neither Smith nor Brown appeared to substantiate
the allegations on which Sturgeon relied . t t I give no
weight to the fact, if true, that the statements were given
"independently." Indeed , the very failure of the employ-
ees to advise any supervisor or any other person at or
near the time of the occurrences of the event, and their
admitted mutual failure to identify any witnesses to the
alleged events, lead me to draw an inference that the
events, as Ash avers, never happened ; or if they did,
they were of such minor consequence as to have caused
hardly a ruffle to agitate Smith or Brown . That the
events went unreported for weeks supports this infer-
ence . The fact that they occurred independently, as Re-
spondent suggest , in any case, is derived from the testi-
mony of Sturgeon whom I would not credit in any
event . The failure of Smith and Brown to appear to testi-
I Sturgeon admitted that if Smith and Brown were untruthful , the dis-
charge of Ash would be unlawful.
fy that they gave their statements independently is more
important . Smith 's and Brown's absences from the wit-
ness stand foreclose inquiry into the circumstances under
which they revealed to supervisors Ash's alleged miscon-
duct.
As a fourth defense, Respondent suggests that Stur-
geon did not rely upon the written accusing statements
but had personal conferences with both Smith and
Brown . Those conferences, as General Counsel urges,
are of course hearsay as to what happened between the
accusers and Ash. The failure of General Counsel to
object to this Sturgeon testimony makes it admissible.
The weight that I give to such testimony, coming solely
from Sturgeon, is another matter. Again, neither Smith
nor Brown appeared to testify. Although their state-
ments, along with Sturgeon 's hearsay testimony , are law-
fully in evidence, I give them little weight . The long si-
lences of both Smith and Brown , Sturegon 's admittedly
singular failure to investigate both sides, the marvelous
speed of the Ash discharge following Sturgeon 's receipt
of the accusations, Ash's denials, and Smith's and
Brown 's absences, in my judgment , overwhelm Stur-
geon 's testimony.
Respondent concedes that Ash had had superior work
evaluations for the first 4 years of her employment, the
most recent of which was only 6 months before she re-
ceived the discipline (R. Br. at 16). Respondent 's asser-
tion that her "decline" in job performance was docu-
mented (the May 29 counseling and written warning)
and that this predated her union support may well be
true . However, I have not credited Sturgeon 's vacillating
and unsure testimony as to whether the May 29 demon-
strations of a "decline" in her performance played any
part in the Ash discharge. I do not accept Respondent-
counsel 's hyperbole that Ash "repeatedly demonstrated
she was a poor employee overall regardless of how well
she performed her duties" (Br. at 17). Neither of the
May 29 matters , of course, had the remotest relation to
the quality of her nursing duties . The prior evaluations
emphasize her ability to work harmoniously with co-em-
ployees.
Similarly, the fact that Sturgeon may have discharged
employees whom he knew to be antiunion and failed to
discharge employees (Holdcroft) whom he knew to be
prounion is little help to Respondent . As above noted,
only Ash was identified as the union "spokesmember."
The only other discharges of record: of a cook for failing
to properly prepare food and of a nurses aide for punch-
ing out the glass face on the timeclock, may have been
fully merited.
I therefore conclude that in the presence of General
Counsel's prima facie case, Respondent has failed to sup-
port its burden of proof to show that it would have law-
fully discharged Ash, regardless of her engaging in union
activities, under the doctrine of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393, 401-403 ( 1983).
HICKORY CREEK NURSING HOME 1161
CONCLUSIONS OF LAW
1. By suspending employee Sandra Ash on August 26,
1987, and by discharging her on September 26, 1987,
thereby discriminating against her because of her activi-
ties on behalf of District 1199, WV/KY/OH, National
Union of Hospital and Health Care Employees, AFL-
CIO, a labor organization , Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
2. By coercively interrogating employees , concerning
their union activities and sentiments , promising them
equipment and other benefits, threatening them with re-
ductions in wages, threatening them that it would do ev-
erything in its power to keep the Union out, threatening
that employee benefits would be lost, threatening em-
ployees that their wages would be frozen, informing em-
ployees that if the Union won the election the Union
would take money from the employees' union dues with-
out their permission, Respondent independently violated
Section 8(a)(1) of the Act.
3. By promulgating, maintaining , and enforcing a rule
prohibiting its employees' wearing union insignia on em-
ployee clothing, not limited to immediate patient care
areas or other specifically identified areas where the
wearing of union insignia would adversely affect patient
care, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By enforcing its no access rule in order to interfere
with its employees engaging in union activities , Respond-
ent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act and have a close, intimate , and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
THE REMEDY
Having found that Respondent has committed various
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and take affirmative
action designed to effectuate the policy of the Act, in the
manner customary in such cases.
Having found that Respondent unlawfully suspended
and discharged Sandra Ash, I shall recommend that she
be offered reinstatement to her old job or, if that job no
longer exists, to a substantially equivalent employment,
discharging , if necessary, any replacement , together with
backpay computed on a quarterly basis as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On the basis of the above findings of fact and conclu-
sions of law and the entire record , and pursuant to Sec-
tion 10(c) of the National Labor Relations Act, as
amended, I issue the following recommended t 2
12 If no exceptions are filed as provided by Sec. 102 .46 of the Rules
and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order shall , as provided in Sec . 102.48 of
the Rules and Regulations , be adopted by the Board and become its find-
ORDER
The Respondent, Health Care Management Corp.
d/b/a Hickory Creek Nursing Home, Athens, Ohio, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging , suspending , or otherwise disciplining,
any employee because of said employees ' sympathy for,
membership in, or activities on behalf of District 1199,
WV/KY/OH, National Union of Hospital & Health
Care Employees AFL-CIO, or any other labor organiza-
tion , or because any such employee engages in concerted
activities protected by Section 7 of the Act.
(b) Promising employees benefits, threatening employ-
ees with retaliation , or informing employees that the
Union would misapply any of their union dues in order
to discourage their activities on behalf of the Union or
any other labor organization.
(c) Coercively interrogating employees because of
their union activities or any other activities protected by
Section 7 of the Act.
(d) Promulgating, maintaining , or enforcing any rule,
regulation , or other prohibition which forbids the wear-
ing of union insignia on employee clothing outside imme-
diate patient care areas , or outside other specifically
identified areas where the wearing of union insignia
would adversely affect patient care.
(e) Enforcing its no access rule in order to interfere
with its employees engaging in union activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Sandra Ash immediate and full reinstate-
ment to her former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges , discharging,
if necessary , any replacement in said job, and make her
whole for any loss of earnings in the manner set forth in
the remedy section of this Decision entitled "The
Remedy."
(b) Expunge from Respondent's personnel records of
Sandra Ash any and all references to her suspension of
August 25, 1987, and her discharge of September 26,
1987, and notify her, in writing , that this has been done,
and that the evidence of her unlawful suspension and her
unlawful discharge will not be used as a basis for any
future disciplinary action against her.
(c) Preserve and, on request , make available to the
Board through its agents and for examination and copy-
ing, all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Athens, Ohio , place of business copies of
the attached notice marked "Appendix."ta Copies of the
rags, conclusions , and Order, and all objections shall be deemed waived
for all purposes
rs 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-
Continued
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice on forms provided by the Regional Director for
Region 9, after being signed by Respondent 's authorized
representatives, shall be posted by Respondent immedi-
ately upon receipt and maintained for 60 consecutive
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."
days in conspicuous places including all places where no-
tices to employees are customarily posted . Reasonable
steps shall be taken by Respondent to ensure that the no-
tices 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 Respondent
has taken to comply.