Highland Avenue Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 998 (N.L.R.B. 1975)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Highland Avenue Convalescent Home, Inc. and Local
526, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 1-CA-10226
September 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS AND PENELLO
On June 20, 1975, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT warn our employees that they
risk discharge if they engage in union discus-
sions on the premises at any time and WE WILL
NOT threaten employees with discharge for sup-
porting the Union.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in
the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
We hereby notify our employees that they are free
to engage in union discussions during nonworking
time in designated areas in the nursing home.
HIGHLAND AVENUE CONVALESCENT HOME,
INC.
DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Highland Avenue Con-
valescent Home, Inc., Fall River , Massachusetts, its
officer , agents , successors , and assigns , shall take the
action set forth in said recommended Order, as mod-
ified herein:
1. Substitute the following for praragraph 1(a):
"(a) Warning employees that they risk discharge if
they engage in union discussions on the premises at
any time, and threatening employees with discharge
for supporting the union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
'However, we find an additional violation of Sec. 8(a)(1) in the threat
implicit in the statement to employees by the nursing home administrator,
Dzialo , that at another home under the same ownership , after a year of
hiring , firing, and rehiring, the employees "got the message" and decided to
have nothing more to do with the Union
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all parties represented, was heard on March 31
and April 1, 1975, in Boston, Massachusetts, on the com-
plaint of the General Counsel issued on January 30, 1975,'
and the answer of Highland Avenue Convalescent Home,
Inc., herein called the Respondent . In issue are the ques-
tions whether the Respondent (a) discharged employees Ei-
leen Sullivan, Janice Newola, and Leona Moseley and con-
structively discharged Shirley Miranda because of their
union membership and activities; (b) discriminatorily with-
held a Christmas bonus from Moseley; (c) unilaterally
changed employees ' hours, terms , and conditions of em-
ployment without consulting Local 526, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, as their
certified collective -bargaining representative ; and (d)
otherwise engaged in acts of interference , restraint, and
coercion, all in violation of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended 2 At the
i The complaint is based on original and amended charges filed by the
Union on November 8 and December 18, 1974, and January 30, 1975, re-
spectively, copies of which were duly served on the Respondent by regis-
tered mail on their respective filing dates.
2 Sec. 8(a)(I) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that "[e-
]mployees shall have the right to self-organization, to form , join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection ...."
Sec. 8(a)(3) of the Act, with certain qualifications not material herein,
prohibits an employer "by discrimination in regard to hire or tenure of
220 NLRB No. 157
HIGHLAND AVENUE CONVALESCENT HOME
close of the hearing , the parties waived oral argument. Al-
though afforded the opportunity , no parties filed briefs.
The Respondent's motion to dismiss the complaint, upon
which ruling was reserved at the hearing , is now granted to
the extent indicated by my findings and conclusions set
forth below.
Upon the entire record , and from my observation of the
demeanor of the witnesses , and with due consideration
being given to the arguments advanced by the parties at
the hearing, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Massachusetts corporation with its
principal office and place of business in Fall River, Massa-
chusetts , is engaged in the operation of a proprietary nurs-
ing home . Its gross volume of business exceeds $100,000
per year. In the regular course and conduct of its facility,
the Respondent during the past year purchased and re-
ceived medicines , medical supplies , and related products
valued in excess of $1,000 from sources located outside the
State . It is admitted and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded , and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The advent of the Union; its certification
Shortly before Claire M. Fay became the owner of the
Highland Avenue nursing home , here involved , through
the corporate entity of the Respondent , the Union in Au-
gust 19743 initiated an organizational campaign at the
Home on the invitation of employees who were concerned
over their continued employment if the Home were sold by
its then owner, Nicholas Thisse . On September 12, after
Fay took possession, the Union filed with the Board's Re-
gional Office a petition for certification in Case
1-RC-13491. On October 4, the Respondent and the
Union executed a Stipulation for Certification Upon Con-
sent Election pursuant to which an election was held on
October 30. Having won the election by a vote of 11 to 2,
employment or any term or condition of employment to encourage or dis-
courage membership in any labor organization ......
Sec. 8(a)(5) makes it an unfair labor practice for an employer "to refuse to
bargain collectively with the representatives of his employees, subject to the
provisions of section 9(a)." The latter section provides that the respresenta-
tives selected by a majority of the employees in such unit "shall be the
exclusive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment."
3 All dates refer to 1974 unless otherwise indicated.
999
the Union was certified on November 7 as the exclusive
collective-bargaining representative of the Respondent's
employees in an appropriate unit .4
Following certification, the Union and the Respondent
held three or four bargaining sessions in November and
December without reaching agreement on a contract. At
the time of the hearing, negotiations were in a state of
suspension. No charge is made that the Respondent en-
gaged in bad-faith bargaining at these meetings.
2. The Respondent's acquisition of the Highland Avenue
Home; operational changes
During the Union's organizational campaign, Claire M.
Fay purchased the Highland Avenue Home on August 27
and took possession on September 1. Fay was then un-
aware of the Union's presence until about the middle of
September when she received from the former owner a
copy of the Union's letter which had been sent to him. She
thereupon discussed the Union with Lorraine Kerrigan,
whom she had previously appointed Administrator of the
Home ,5 informing her that she had no objection to the
Union as such but that she had misgivings because she
could not spare the time in the anticipated negotiations
with that organization. Fay also indicated that she was a
fair employer and would do as much for the employees as
the Union could do and referred to the fact that at one
time there was a union in 1 of her other 10 nursing homes
which the employees had repudiated a year and a half after
she had purchased that facility. In addition, Fay noted
that, although the Union could cause unrest among the
employees, she was primarily concerned with the welfare of
the patients. At or about the same time period, Theresa
Dzialo, Fay's sister who was then acting in an advisory
capacity and subsequently replaced Kerrigan on October
27 as administrator,6 telephoned Pauline Perry, a licensed
practical nurse at the Highland Avenue Home ,7 and told
her that she had just learned of the Union's organizational
interest; that Fay was not opposed to employees having a
union ; but that the Union' s presence would upset Fay be-
cause it would take too much of her time. Apparently, in
another conversation with Perry in the presence of employ-
ee Sullivan, Dzialo asked Perry whether the rumor she had
heard was true that the employees were joining the Union,
adding that Fay would be disappointed since she was a fair
person and therefore saw no need for a union.
Upon acquiring the Highland Avenue Home, Fay as-
sured the employees that she was not then contemplating
4 The unit , as described in the complaint and conceded to be appropriate,
consists of
All licensed practical nurses, maintenance employees , dietary aides,
housekeeping employees, laundry workers, nurses aides , orderlies and
cooks employed by the Respondent at its 761 Highland Avenue, Fall
River, Massachusetts, location , but excluding guards , professional em-
ployees, technical employees, office clerical employees and supervisors
as defined in Section 2(11) of the Act.
S Under the former management, Kerrigan served as director of nursing
service.
6 Dzialo was at that time, and still is, the administrator of Fay's Green
Oak Nursing Home in Brockton , Massachusetts.
r At this time Perry was a rank-and-file union supporter . She was promot-
ed to a supervisory position in November after Dzialo became the adminis-
trator of the Highland Avenue Home.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making substantial changes in the operation. However, in
the ensuing weeks , she soon realized that the Home was
not being run in a proper and efficient manner to suit her
purposes. Among other things, with 25 employees for 26
patients, Fay concluded that the Home was overstaffed;
that the nursing personnel exceeded minimum state re-
quirements for a Level 3 home;8 and that the cost of such
excessive nursing services was not reimbursable by the
State . Accordingly, Fay decided to reduce the staff; to lim-
it the type of patient to be accommodated to Level 3 per-
sons who did not require much nursing care; to transfer to
appropriate nursing homes patients requiring more nursing
care ; and to introduce practices and procedures pursued in
Fay's other 10 Homes. To implement her ideas, Fay in-
structed Kerrigan promptly to proceed with the reduction
in force and the transfer of patients.
About the middle of September, Fay held a staff meeting
at which she apprised the employees of her contemplated
reduction in force and other plans. The proposed cut in
staff evoked opposition from the nurses for the asserted
reason that the patients would be deprived of adequate
care . In response, Fay stated that the patients requiring
more than Level 3 care would be transferred to other nurs-
ing homes . Additional proposed changes were also dis-
cussed, including the type of meals for the patients, the
cook's hours, and the elimination of meals served to em-
ployees.
For some reason unnecessary to consider, Kerrigan was
slow in reducing the staff. On September 25, Dzialo, on
behalf of Fay, telephoned Kerrigan and discussed
Kerrigan's failure to cut the staff, as she had been instruct-
ed to do by Fay. In a letter dated September 27 to Kerri-
gan, Dzialo confirmed this conversation, stating that she
had previously called Kerrigan
... to tell you once again that this [reduction in force]
must be done before the next payroll ending 09-29-74
because there were too many employees on the payroll
for such a small facility (. . . 25 employees, . . . 26
residents). You, in turn, informed me that the former
owner Mr. Nick Thisse, wanted it that way. Also, stat-
ing that you attended a union meeting recently and
brought up this matter, a Union representative told
you that no one was to be fired. I then stated that no
one was giong (sic) to be fired. You are to call a meet-
ing of all employees and lay off according to seniority,
giving preference to those employees who are able to
work a full forty (40) hour week. I also went on to say
that Mrs. Claire M. Fay, Owner, was extremely ada-
ment (sic) on the staffing on Nursing Homes as per
Federal and State Rules and Regulations.
By October 6, the reduction in force was completed.
Because of employee unrest and complaints to manage-
ment over working conditions and unfair treatment assert-
edly accorded several employees, Fay called a staff meet-
ing which was held on October 16. Dzialo and Kerrigan
also attended it. Fay was the principal speaker but Dzialo
8 The State classifies nursing homes according to the type of care fur-
nished patients . A Level 3 home furnishes "intermediate care" to patients
who need only supportive care.
contributed her views, too. Essentially, management dis-
cussed the reduction in force and other operational
changes that had been, and would further be, made in the
Highland Avenue Home as a Level 3 facility. Janice Newo-
la, a licensed practical nurse, complained that she could
not handle the floor with curtailed help. Other employees
also expressed similar views. This led to a discussion of
nursing coverage on Newola's and other shifts with the
result that Dzialo agreed to give Newola a nurses aide. Fay
then noted that there was no need for a full-time laundress
in a nursing home as small as Highland was. It is not too
clear whether she suggested employing a part-time laun-
dress or utilizing an outside laundry service. Also reviewed
at this meeting were the Respondent' s personnel policies
embodied in a document which had been distributed
among the employees probably a month or so earlier.
When an employee brought up the subject of a wage raise,
Fay replied that she was advised by her lawyer that it could
not be given because it could be interpreted as a bribe to
reject the Union. Other personnel matters, such as vaca-
tions and sick leave, were also explained by management.9
On October 27, Dzialo was appointed by Fay as the ad-
ministrator and RN consultant of the Highland Avenue
Home, replacing Kerrigan who had been terminated a few
days earlier . Thereafter, on November 1, following the
Union's victory in the Board-conducted representation
election , Dzialo held another staff meeting. After congratu-
lating the employees on their selection of the Union and
noting the freedom of choice that employees are assured in
this country, Dzialo announced that she expected them to
observe the Respondent's rules or risk dismissal . Specifical-
ly, she warned the employees that they were to refrain from
cussing or using obscene language in the Home or from
smoking in other than designated areas, and cautioned
them and, in particular, employee Sullivan, to be in uni-
form while at work. Dzialo also pointed out that she could
be a bastard if the employees failed to observe the rules
and mistreated patients.
In addition to the foregoing, Dzialo made certain re-
marks at this meeting concerning union activity in the
Home. According to Dzialo, she told the employees that no
union meetings were to be held on the premises but that a
bulletin board was available to the Union for posting no-
tices of its meetings or activities. She further testified that
she warned the employees that they were not to engage in
arguments or make threats about the Union on the prem-
ises, as had happened at the other facility she administered,
and that they were subject to discharge if they were in-
volved in such conduct. 10
Employees Sullivan and Miranda testified that Dzialo
stated that she did not want to hear the word "union"
mentioned in the building; that there was to be no union
talk on the premises; but that notices of union meetings
may be posted on the bulletin board. They further testified
that Dzialo also remarked that, while working for another
employer, she voted against the union, preferring to keep
her money for her own use rather than to pay it to the
g The foregoing findings are based on a composite of the testimony of
various witnesses which, in my opinion , reflects what probably occurred
on this occasion.
10 Supervisor Perry substantially corroborated Dzialo's testimony.
HIGHLAND AVENUE CONVALESCENT HOME 1001
union . Moreover, they quoted Dzialo as stating that em-
ployees did not need a union in order to hold on to a job if
they did their work properly.I I In addition to the foregoing,
Sullivan testified that at this meeting Dzialo referred to one
of Fay's other nursing homes where a union had once rep-
resented the employees but after a year and a half of hir-
ing, firing, and rehiring the employees "finally got the mes-
sage, evidently, that they didn't want anything to do with
the Union in their business."
According to employee Moseley's version, Dzialo stated
that "Now that the Union's in ... I don't want to hear
anything said about Union." Under cross-examination,
Moseley testified that Dzialo "said she did not want to
hear the Union discussed on working hours," adding that
"[w]hat you do after working hours is" your own business.
From my appraisal of the entire testimony on the sub-
ject, I find that Dzialo intended to and did convey to the
assembled employees the idea that they were not to engage
in union discussions at any time on the premises, whether
or not they were on duty or on their own free nonworking
time and that they risked discharge if they ignored her ad-
monition . Against the above background, we turn to the
facts and circumstances surrounding the discharge of em-
ployees Sullivan, Newola, and Moseley, the alleged con-
structive discharge of Miranda, the withholding of a
Christmas bonus or present from Moseley, and the unila-
teral change in terms and conditions of employment.
3. Sullivan's discharge
Eileen Sullivan was hired by the Respondent's predeces-
sor on July 5, 1973, and continued in the Respondent's
employ after Fay's acquisition of the Home until her termi-
nation on November 3, 1974. During this period of em-
ployment, Sullivan performed laundry work several days a
week on the 7 a.m. to 3 p.m. shift and relief nurses aide
duties approximately 2 days a week on the 11 p.m. to 7
a.m. shift. Apparently, her performance in both capacities
was satisfactory to management-at least , no complaints
were made to her about her work. However, as noted
above, at the October 16 staff meeting, Fay indicated that
she had no need for a full-time laundress, which evidently
she considered Sullivan 's job to be, and that some change
was contemplated.
On Sunday evening, November 3, Sullivan called the
Home to ascertain her assignment for the forthcoming
week and was informed by Janice Newola, the licensed
practical nurse on duty, that her name was not on the
weekly employment schedule but that Administrator
Dzialo left a note for her. Sullivan promptly went to the
Home where she obtained the note signed by Dzialo, stat-
ing that her services were no longer needed for the reason
that other arrangements had been made. Although Newola
simultaneously conveyed Dzialo's message to Sullivan that
the Respondent planned on sending the laundry out to be
washed, it appears that.the Respondent had permanently
11 Dzialo testified that it was at the October 16 meeting where she stated
that the employees would be mistaken if they believed that they could use
the Union as a crutch to protect them from discharge for misconduct since
they are subject to discharge for cause.
assigned Laura Ferreira, an employee with greater senior-
ity than Sullivan's, to do the laundry work on a part-time
basis and as a nurses aide the remainder of her shift. It also
appears that the Respondent, in reorganizing its operation,
eliminated a nurses aide from the 11 p.m. to 7 a.m. shift on
which Sullivan had served as a relief nurses aide and, since
only one person would thus be assigned on that shift, it
decided to utilize only a licensed practical nurse who
would be better qualified than a nurses aide to handle
emergency problems patients might develop.
Sullivan's involvement in the Union consisted of signing
a union authorization card on August 23 and attending
about three union meetings. Both Fay and Dzialo deny
knowledge of Sullivan's union activities or that they in any-
wise entered into their decision. Moreover, explaining why
the Respondent had not recalled Sullivan in accordance
with its written personnel policies which provide for priori-
ty in rehiring employees laid off for lack of work, Dzialo
testified that no laundress job was open and that she did
not consider Sullivan qualified for a nurses aide position.
Sullivan never discussed her discharge or the Respondent's
failure to recall her with Dzialo or anybody else in manage-
ment.
4. Miranda's alleged constructive discharge
Shirley Miranda was employed at the Home as a nurses
aide for 3-1/2 years. Because her two children had medical
problems and her handicapped daughter required assis-
tance to board a school bus, Miranda arranged with the
former owner to work from 8 a.m. to 3 p.m. However, for
a number of weeks prior to September 15, she was able to
work the regular shift from 7 a.m. to 3 p.m. as her husband
was then unemployed and took care of the children. How-
ever, about September 15, when her husband secured an-
other job, Miranda returned to her former hours of 8 a.m.
to 3 p.m. About that date, Lorraine Kerrigan, who was
then the administrator of the Home, advised Fay of
Miranda's inability to report for work before 8 a.m. and
Fay stated that she had no objection so long as the floors
were covered. In the latter part of October, after Kerrigan's
termination , Miranda told Fay that, since the bus which
picked up her daughter was sometimes late, she (Miranda)
would therefore have to come in on those occasions a few
minutes after her regular reporting time of 8 o'clock. Fay
replied that it would be all right as Miranda was a satisfac-
tory employee.
On Sunday, November 3, Dzialo, who had replaced Ker-
rigan as administrator, telephoned Miranda at her home
and informed her that it was necessary to change her hours
to start at 7 a.m. There is no question that Miranda's serv-
ices were needed an hour earlier to help wash and dress the
patients so that they could be ready for breakfast between
7 and 8 in the morning, as required by state rules. It is also
clear that, as a result of the reduction in force and the
rearrangement of work schedules, there was only one li-
censed practical nurse on duty at this time to perform the
indicated chores and that actually two employees were
needed. Although Miranda was admittedly aware of this
situation, she explained to Dzialo that it was impossible for
her to report earlier than 8 o'clock because of her
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
children's demands. Dzialo, nevertheless, replied that she
had her responsibilities, too, and while she like Miranda,
she had to insist that Miranda be at work at 7 a.m. When
Miranda inquired whether this meant that she was laid off
or fired, Dzialo answered in the negative and that the job
was hers if she agreed to begin work at 7.12 Miranda de-
clined the offer and she never thereafter returned to her job
at the Home.
Like Sullivan's, Miranda's union activities consisted of
signing a union card and attending two meetings. Dzialo
testified that she was unaware of Miranda's union mem-
bership and interest but simply "took it for granted."
5. Newola's discharge
Janice Newola was employed for 3-1/2 to 4 years at the
Highland Avenue Home as a licensed practical nurse until
her termination on December 10 following the events recit-
ed below. At the time of her discharge she was in charge of
the 3 to 11 p.m. shift. She signed a union card in August
and attended three union meetings. Along with a union
representative and employees Moseley and Torngren she
participated in a preelection conference at the Board's Re-
gional Office on or about October 4 in connection with the
Union's representation petition. The Respondent's owner,
Fay, and her attorney were present on behalf of the Re-
spondent. The next week, Administrator Dzialo told Ne-
wola that Fay was "miffed" at Newola because she did not
think that it was proper for a licensed practical nurse to
participate in the preelection conference. After the Union's
certification, Newola served on its contract negotiation
committee , attending three bargaining sessions.
In the afternoon of December 9, a social worker for the
city of Fall River by the name of Mrs. Israel visited the
Highland Avenue Home to see a patient and engaged Pau-
line Perry, the supervisory licensed practical nurse," in a
conversation. Israel inquired how things were going at the
Home. When Perry answered that the Home was doing
well and was "shaping up," Israel stated that she had writ-
ten an article unfavorable to the Home which was sched-
uled to appear in the local newspaper the next day. Perry
asked for the reason for the critical article and Israel re-
plied that she had received many complaints, one of which
came from a nurse employed at the Home. Perry voiced
her disagreement with Israel concerning conditions at the
Home, insisting that they had improved since Fay's as-
sumption of ownership and requested that publication be
stopped, which Israel declined to do. In the course of this
conversation, Israel also asserted that Perry lacked the
qualifications to be a supervisory licensed practical nurse.
As Israel was leaving, she met Mr. Silva, a social worker
for the Department of Public Welfare, a state agency, as he
entered the Home and had a brief conversation with him.
In the meantime, Newola reported for work and ap-
12 There is conflicting testimony , which is unimportant to resolve, whether
on this occasion Dzialo offered Miranda another nurses aide job at one of
Fax's other nursing home.
As indicated above, prior to her appointment to the supervisory posi-
tion about the second week in November, Perry was one of the employees
supporting the Union.
proached Perry who informed her that Israel had given her
a hard time. In the course of this conversation, Silva joined
Perry and Newola. Perry then related what Israel had told
her about the newspaper article to be published the next
day and declared that Israel had better be able to prove her
charges which included abusive treatment of patients.
When Newola remarked that Israel was all for the patients,
Perry answered that she had not indicated otherwise, add-
ing that she also was for the patients. Silva interjected that
he was, too, and noted that he had not observed anything
radically wrong at the Highland Avenue Home.14 Newola
thereupon volunteered that she thought that Israel proba-
bly meant by abusive treatment of patients mental, rather
than physical, abuse and alluded to Perry's moving the pa-
tients all over the facility which made the patients unhap-
py. A discussion of this situation then ensued. When Perry
then asked Newola whether there was anything else she
had to say, Newola hesitated, as she testified, because Silva
was present but, nevertheless, proceeded to raise the ques-
tion of Marcus Levinson, a patient, not receiving spending
money. Perry replied that Levinson was receiving $5 every
week and he never had it so good. In response , Newola
stated that she was not talking about the present situation
but the one in the past and declared that she had heard
that when Cindy Rocha, Fay's niece, was asked one day in
the facility about the patients' spending money, she replied
that Fay was overdrawn in her bank account and that she
had to use the money to pay the taxes on the Home. Perry
commented that she shouldn't listen to rumors. However,
Newola answered that it was a fact which somebody, not
otherwise identified, had told her.
At some point in the Perry-Silva-Newola conversation,
Perry also mentioned that a licensed practical nurse had
made a complaint to Israel that she (Perry) lacked the qual-
ifications to be a supervisory licensed practical nurse. l Ev-
idently agreeing that Perry was not qualified, Newola
thereupon procured a copy of the State Rules and Regula-
tions to prove it.16 Perry thereupon retorted that, if she
were not qualified, Fay, who owned 11 nursing homes,
would not have appointed her.17
Following the above episode and after the end of her
shift, Perry went home where she promptly called Adminis-
trator Dzialo and reported the scheduled publication of the
Israel article and the Perry-Newola-Silva conversation. In
particular, Perry informed Dzialo about Israel's and
14 It appears that Silva , in his official capacity, customarily visited the
Home at least once a week to check on the patients.
is Newola testified that Perry had previously asked her to check with the
Union whether she was qualified and whether she could retain her union
membership . She further testified that, since she did not believe that the
Union knew the answer , she made the inquiry of Israel. Apparently, Israel
indicated to Newola that Perry lacked the qualifications to be a supervisory
licensed practical nurse . When Newola conveyed this information to Perry,
according to Newola , Perry told her that she would, nevertheless , accept the
su?servisory position.
Perry testified that Newola turned to a page in the State's rules and
regulations which provided that a registered nurse was required to be at a
nursing home 40 hours a week. However , according to Perry, she later
learned that that provision was applicable only to larger nursing homes than
the Highland Avenue facility.
17 The foregoing findings are based on portions of the testimony of Perry
and Newola which I believe reflect what probably occurred in that conver-
sation . Actually, either version would not affect my concluding findings,
infra.
HIGHLAND AVENUE CONVALESCENT HOME 1003
Newola's questioning Perry's qualification to be a supervi-
sor and Newola's remarks to Silva concerning Fay's al-
leged use of patients ' money to pay her taxes. Dzialo was
shocked by Perry's revelation and stated that she would
promptly call Newola to straighten her out.
Around 5 p.m. of the same day (December 9), Dzialo
telephoned Newola who was then on duty at the Home
and related Perry's report of Newola's remarks which
Dzialo said greatly disturbed her. Dzialo expressed her re-
sentment that Newola told Silva that the Respondent used
the patients' spending money to pay taxes. Newola tried to
explain that she did not mention this "directly" to Silva but
Dzialo did not give her a chance to speak. Continuing,
Dzialo also rebuked Newola for making unfounded com-
plaints regarding inadequate supplies and staffing, assert-
ing that there was no need to order more supplies for her to
steal . Dzialo then added that the former owner had given
the Respondent a list of employees to watch out for in
regard to missing items and that the present ownership will
not permit the condition to persist. When Newola inquired
whether Dzialo was accusing her of such misconduct, she
received no response . As for understaffing, Dzialo said that
the Home operated with adequate help. This led to
Dzialo's charge that Newola was abusing patients, which
Newola challenged, noting that Dzialo better be able to
prove it. Dzialo then stated that she was referring not to
physical but mental abuse by Newola's yelling and swear-
ing at the patients . Newola denied swearing but admitted
that she scolded patients, as she would do to her own chil-
dren, when the patients did things harmful to themselves
and other patients . "' In response, Dzialo ordered Newola
never to yell at patients but to talk to them. In concluding,
Dzialo stated that she was going to discuss this matter with
her sister, Fay, who would be "miffed" over it; advised
Newola that, if she were unhappy with her job, she should
look for another job; warned her that she would be under
observation and, if she did anything wrong, she would be
fired; and affirmed the wisdom of their choice of Perry as
a supervisor.
Dzialo's above-recited remarks to Newola concerning
the latter's unfounded complaints about inadequate sup-
plies were based on information Dzialo received from Do-
lores Nutbrown, a nurses aide . Nutbrown credibly testi-
fied, without contradiction, that when she came to work
one afternoon in November, she saw Newola and Moseley,
a cook and one of the alleged discriminatees, engaged in a
conversation with a lady, who she since learned was Israel.
She further testified that she heard Newola, who did most
of the talking, state that there were insufficient supplies,
soap, and food in the Home and that the Respondent was
using the patients' spending money to pay taxes. 0
With respect to Dzialo's reprimand of Newola for mis-
treating patients and for yelling and swearing, this infor-
mation concerning Newola's conduct also came from Nut-
brown. Nutbrown testified that she heard Newola use
swear and obscene words while performing her duties,
which upset patients:21 that a patient, Mrs. Davis, com-
plained to her about Newola' s swearing ; and that Newola
showed no patience with another resident of the Home,
Mrs. Silvia, at whom she yelled and for whom she ex-
pressed a dislike. Nutbrown further testified that she re-
ported Newola's foregoing conduct to Dzialo and Perry
and even told Newola herself that swearing was unbecom-
ing a nurse and criticized her for her treatment of Silvia.
Dzialo testified that on the basis of Perry's report, as well
as the information she received from Nutbrown, she decid-
ed to terminate Newola for "insubordination and miscon-
duct." Specifically, Dzialo testified that she viewed
Newola's false statements to Silva on December 9 and to
Israel during an earlier interview as evidence of insubordi-
nation and a breach of the Respondent' s rules,22 and that
Newola's misconduct consisted of "verbally abusing pa-
tients," using swear words and obscene language, and yell-
ing at them.
Later in the evening of December 9, Dzialo discussed
with Fay the above reports she had received from Perry
and Nutbrown and her (Dzialo' s) intention to discharge
Newola. Fay concurred in Dzialo's decision and declared
that she herself would fire Newola. Accordingly, the next
morning, December 10, Fay telephoned Newola and in-
formed her that she was discharged "effective immedi-
ately." In answer to Newola's inquiry as to the reasons,
Fay stated "Insubordination, general attitude and abusive
treatment of the patients." Newola replied that Fay "better
be able to prove it," which Fay said she could do.
In order to maintain good relations with the Union, with
which the Respondent was in the midst of contract negoti-
ations , Dzialo unsuccessfully tried to reach Anthony J.
Materia, the Union's secretary-treasurer, by telephone to
advise him of Newola's discharge. This information was
subsequently communicated to Materia by letter dated De-
cember 12.
At the hearing, both Dzialo and Fay denied that
Newola's discharge was prompted by her union activities.
Newola, on the other hand, testified that she had never
been reprimanded or criticized by management concerning
the way she performed her duties. On the contrary, she
testified, she had been complimented by Dzialo. Lorraine
Kerrigan, the former administrator of the Home, also at-
tested to Newola's competence and to the fact that Newola
had a good rapport with the patients.
19 Dzialo credibly testified, without contradiction , that this accusation
was false.
19 Newola testified that one patient , a Mrs. Silvia , who tried to choke
other patients , was a particular problem to her and that she (Newola) dis-
cussed the case with the former administrator, Kerrigan , and Perry She also
testified that it was common practice in the Home to scold patients on
occasion and that , to her knowledge , no employee was ever fired for doing
so.
w Newola testified that Israel visited the Home one day and questioned
"us" and mentioned that the State had received a number of complaints
which had not been remedied.
21 Nutbrown conceded that other employees also used "cuss words"
which were not as bad as those used by Newola and did not upset the
patients
22 The particular rule referred to appears in the Respondent 's document
entitled "Personnel Policies" and provides that "All Employees Must Re-
member Not To Discuss Nursing Home Policies Or Problems Which Might
Arise To Their Patients "
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The withdrawal of Moseley's living-in privileges; the
denial of a Christmas bonus or present; her subsequent
discharge
Leona Moseley was employed as a cook at the Highland
Avenue Home for some 5 years until her discharge on Jan-
uary 9, 1975, under circumstances related below. During
the Union's organizational campaign she signed a union
authorization card and attended two meetings. She also
attended the preelection conference previously mentioned
with employees Newola and Torngren and a union repre-
sentative and at the October 30 election served as the
Union's observer.
One morning in December, Supervisor Perry, who was a
union supporter prior to her supervisory promotion, ap-
proached Moseley in the kitchen and told Moseley that she
had learned from Cindy Rocha, Fay's niece, that Cindy
had heard that the employees had dropped the Union.
Moseley stated she knew nothing about it. At lunchtime,
Perry remarked to Moseley that Union Secretary-Treasurer
Materia was a crook; that all the Union wanted was the
employees' money; and that the Union could do nothing
for them.
a. Withdrawal of living-in privileges
Under the prior management, Moseley was the only em-
ployee who had living quarters in the Home, occupying
two or three rooms on the third floor.23 Fay learned of this
arrangement as soon as she assumed ownership of the
Home but did nothing about it for 2 months. However,
during this period, as part of her reorganization plans, Fay
decided to expand the Home's activities program for the
patients which included converting Moseley's apartment
into an activities room.24 In the meantime, Moseley com-
plained a number of times to Fay and Dzialo that her liv-
ing quarters lacked bathing facilities, requiring her to use
the patients' bathroom.
In the last few days of October or on November 1, Fay
informed Moseley that she needed the rooms she occupied
to convert into an activities room and wanted her to look
for another apartment and move out in a few weeks. Mose-
ley agreed to move as soon as she located another place.
Being unable to find an apartment which she could afford,
Moseley continued living at the Home. This prompted Fay
repeatedly to remind Moseley of the need for her rooms for
the activities program and to request her to secure other
living quarters and move. Moseley, on the other hand, as-
sured Fay of her efforts but that she was experiencing diffi-
culties in finding an apartment to suit her means. At one
time, Moseley told her that a friend was fixing up an apart-
ment for her and that she would move January 1, 1975.
However, she later informed Fay that this prospect did not
materialize because her friend never finished the job and
23 It appears that Moseley also had food privileges, as did other employ-
ees who were served meals during their shifts. However, after Fay assumed
ownership the meal privileges of employees other than Moseley were dis-
continued.
24 Fay testified that, in view of these plans, she told her niece, Cindy
Rocha, to notify Moseley to find outside living quarters and vacate the
premises but her niece failed to do so.
left the State. Finally, on January 10, following Moseley's
discharge on January 9, Moseley moved out of the Home.
Thereupon, the rooms were painted and a piano and game
tables were brought in. However, these rooms were not
subsequently utilized nor were the planned alterations
made as state officials have prohibited any changes to be
made in the facility, which is considered a wooden struc-
ture, pending the completion of a survey.
There is uncontradicted testimony given by Fay that, at
a meeting during the November-December contract nego-
tiations, she explained to the Union that Moseley was
asked to vacate the premises because her rooms were need-
ed in connection with her contemplated activities program.
Apparently, the Union did not raise any objection-at
least no contrary evidence was presented.
b. Denial of a Christmas bonus or present to Moseley
It appears that the former management granted Christ-
mas bonuses or presents to employees every year. Accord-
ing to Moseley, all employees received one but in varying
amounts. In the week before Christmas the Respondent, as
the new owner, also gave each of the employees, except
Moseley, a bonus or present of from $5 to $25. The amount
and the recipients were determined by Administrator
Dzialo who assertedly based her decision on service senior-
ity at the Home, the employees' job performance, and their
general conduct. Dzialo testified that she decided not to
give Moseley anything because of her many gripes; the fact
that she was the only employee with living-in privileges,
which were more than she was entitled to; and her failure
to move, as she was repeatedly requested to do. Although
contract negotiations had previously been instituted, there
is no evidence that the Union protested Moseley's denial of
a bonus or gift.
c. Moseley 's termination
As indicated above, Moseley was discharged on January
9. Although the Respondent presented testimony concern-
ing her unsatisfactory performance of duties and other
shortcomings, it is clear that the precipitating cause of her
discharge was the following occurrence on January 9:
About 11 a.m. employee Betty Torngren, who was sched-
uled to report for work later in the day for the 5 to 1 I p.m.
shift, called Supervisor Perry and informed her that she
was too sick to come to work that evening. Shortly thereaf-
ter, Moseley asked Perry whether she could leave at 1 p.m.
for about 2 hours in order to attend a union meeting. Perry
granted her permission with the understanding that she
would be docked for the hours she would be absent. Be-
tween 11 :30 a.m. and 12:30 p.m., while Perry, Moseley,
and employee Ferreira were sitting in the dining room,
Ferreira asked Moseley who was taking her to the union
meeting. When Moseley answered that it was Torngren,25
Perry expressed surprise since Torngren had called in
sick-a fact Moseley was not aware of and so stated. Perry
then declared that if Torngren wasn 't sick enough to go to
15 Moseley testified that she had made such arrangements before Torn-
gren became sick.
HIGHLAND AVENUE CONVALESCENT HOME
a union meeting then she was well enough to come to work.
Remarking that she would see that Torngren would be
fired if Torngren had lied to her, she went to the nurses'
desk and called up Dzialo who was in Brockton. While
Perry was making this call to Dzialo , Moseley went up in
the elevator to her living quarters where she telephoned
Torngren who verified that she was sick . Moseley then
asked Torngren to communicate with Janice Newola and
arrange for Newola to pick her up.
In the meantime, Perry reached Dzialo on the telephone
and proceeded to relate the Torngren episode. In the
course of this conversation , the nearby pay phone rang and
Ferreira answered it. The call was from Newola who gave
Ferreira a message for Moseley that , since Torngren was
sick, she would pick up Moseley and drive her to the union
meeting . Upon learning this, Perry, who still was on the
wire with Dzialo , conveyed the Newola call and message to
Dzialo . In answer to Dzialo's inquiry , Perry informed her
that Moseley had a phone in her living quarters . At this
point, Moseley came down in the elevator and Dzialo
asked Perry to put her on the wire, which she did. Obvious-
ly suspicious whether Torngren was really ill, Dzialo ques-
tioned Moseley whether she had just made a phone call
from her rooms . Moseley answered in the negative , stating
that she did not have a phone. When Dzialo then again
ascertained from Perry that Moseley did have a phone and
Moseley was confronted with this information, Moseley
explained to Dzialo that the phone did not work . 26 Dzialo,
who was still on the wire, instructed Perry to go upstairs to
Moseley's living quarters with Moseley and Ferreira and to
try to reach Dzialo on Moseley's telephone.
In accordance with Dzialo 's instructions, Perry, Mose-
ley, and Ferreira went up to Moseley's apartment. When
Moseley, in the meantime , repeated that her phone did not
work, Perry assured her that if that were so, she had noth-
ing to worry about. In Moseley's apartment, Perry dialed
Dzialo's number and reached her. At Dzialo's direction,
Moseley was handed the telephone. Dzialo told Moseley
that she had lied to her; that she was fired; and that she
was to leave the facility promptly and never return. When
Moseley got off the phone, she stated to Perry and Ferreira
that she was fired.
Later in the evening , Moseley called Dzialo and asked
whether she could remain in the Home overnight and was
given permission to do so. In this conversation , according
to Moseley , she admitted that she had lied in order to save
Torngren from getting into trouble. However, she testified
that, as things turned out, Torngren really was sick. It ap-
pears that at the time of the hearing Torngren was still in
the Respondent's employ.
Because the Respondent did not know Moseley's for-
warding address, a letter dated January 9 signed by Dzialo
was sent to the Union. The letter advised Moseley that she
was discharged "for misconduct and dishonesty" and al-
luded to the fact that she "deliberately lied" to Dzialo in
the presence of Supervisor Perry and Ferreira , a nurses
aide . In addition, the letter stated that the " [m ]isconduct
involve[d] leaving . . . [her] duties and the floor without
u Moseley admitted at the hearing that she did not tell Dzialo the truth
that her phone was not working.
1005
telling the supervisor or anyone else before the time .. .
[she] was to be excused." It is apparent that the letter relat-
ed to the episode described above. However, at the hear-
ing, Dzialo mentioned Moseley's many other alleged short-
comings which contributed to her discharge. In view of my
concluding finding, I find it unnecessary to burden this
Decision with a discussion of such asserted contributing
reasons whether they be regarded as makeweights or sub-
stantial factors in the discharge decision or as relevant
background.
Both Dzialo and Fay denied that Moseley was terminat-
ed for antiunion reasons. Indeed , Dzialo , who made the
discharge decision, categorically denied knowledge of
Moseley's union activities or sympathies. She testified that
she was unaware that Moseley was a union observer at the
October 30 election and, in fact, was not even on the prem-
ises when the election was held.
B. Concluding Findings
1. With respect to Sullivan's discharge
The complaint alleges that Sullivan was discharged in
violation of Section 8(a)(3) and (1) of the Act because of
her union membership and activities. I find that the evi-
dence does not sustain this allegation. As indicated above,
Sullivan's union involvement consisted of no more than
signing a union authorization card 2 months before her
discharge and attending about three union meetings. I find
nothing in the record to suggest why Sullivan should be
singled out for dismissal from among the many employee-
union supporters who were either more active than she was
or whose sympathies were no different from hers. Indeed,
there is no evidence that the Respondent was even aware
of Sullivan's activities, whatever they might have been. On
the other hand, it appears that Sullivan's separation was
simply the result of the Respondent's rearrangement of its
operations which included changes in shifts and a reduc-
tion in personnel. Significantly, the individual who was as-
signed to assume the laundry duties previously performed
by Sullivan was Laura Ferreira, an employee with greater
service seniority than Sullivan. Ferreira thereupon did the
laundry work on a daily part-time basis and served as a
nurses aide the remainder of her shift. As for the nurses
aide relief work which Sullivan had formerly performed on
another shift (11 p.m. to 7 a.m.), the nurses aide job on that
shift was eliminated by the Respondent and a licensed
practical nurse was substituted because it believed that a
licensed practical nurse would be better qualified to cope
with emergency problems which might arise among the pa-
tients. While the Respondent's failure to recall Sullivan as
a nurses aide when such a job subsequently arose and Ad-
ministrator Dzialo's explanation for such omission that she
did not consider Sullivan a qualified individual might be
suspect, it is clear that suspicion is no valid substitute for
evidence of improper motivation.
In sum , I find that the General Counsel failed to sustain
his burden of proving by a preponderance of the evidence
that Sullivan was unlawfully terminated on account of her
union membership and activities. Accordingly, dismissal of
the relevant allegations of the complaint is recommended.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. With respect to Miranda 's constructive discharge
In Miranda's case , too, I am unable to find any evidence
in the record that the Respondent unlawfully rescheduled
her working hours to force her to quit, in retaliation for her
union activities , as the General Counsel argues . As shown
above, Miranda's union involvement simply amounted to
signing a union card 2 months before her separation and
attending two union meetings . This union interest was as-
sertedly unknown to the Respondent, although Adminis-
trator Dzialo testified that she "took it for granted." It also
appears that Miranda, too, was caught up in the
Respondent's rearrangement of shifts . There is no question
that the Respondent needed Miranda's services at 7 o'clock
in the morning, an hour earlier than she customarily re-
ported for work, so that she could help dress and wash
patients in preparation for breakfast which had to be
served between 7 and 8 a.m. under the State's rules and
regulations . Admittedly, only one employee was on duty
during the indicated time and two were needed to perform
that chore. While the Respondent was aware that Miran-
da-undeniably a capable nurses aid-had problems with
her children , one of whom required Miranda's personal as-
sistance to board a bus about 8 a.m., the Respondent's
insistence that Miranda report for work at 7 a.m. cannot,
under the circumstances , conceivably be interpreted as a
reprisal measure for her union activity.
Accordingly, I find that the General Counsel did not
establish that Miranda was constructively discharged in vi-
olation of Section 8(a)(3) and (1) of the Act. Rather, I find
that Miranda voluntarily quit because of her inability to
work the hours which the Respondent legitimately im-
posed.
3. With respect to Newola's discharge
Manifestly, Newola was more actively involved in the
Union than Sullivan or Miranda. Not only did she sign a
union card and attend three union meetings, but she also
participated in the preelection conference and, after the
Union's certification, served on its negotiating committee.
According to Newola, she was told by Administrator
Dzialo that her participation in the preelection conference
did not meet with the approval of the Respondent's owner,
Fay, who thought it inappropriate for a licensed practical
nurse to engage in union activity. However, despite this, I
am not convinced that the General Counsel proved that
Newola's discharge was due to her union involvement.
Without repeating the details, it is clear that Dzialo de-
cided to terminate Newola shortly after Supervisor Perry
reported to her the newspaper article written by Israel, a
social worker, severely critical of conditions in the
Respondent's nursing home , and Newola 's remarks made
to Perry and Silva, another social worker. Specifically,
Newola accused Fay with improperly using patients'
spending money to pay her taxes ; suggested that Israel's
assertion regarding abusive treatment of patients probably
referred to mental, rather than physical, abuse, such as
Perry's moving patients around in the Home which upset
the patients; and challenged Perry's qualifications to be a
supervisor. In addition, Dzialo had previously been in-
formed by employee Nutbrown that Newola had made ad-
verse comments and complaints to Israel about conditions
in the facility. Undoubtedly, Newola's statements to Silva
and Israel-claimed by the Respondent to be unfounded-
were both embarrassing to the Respondent and, indeed,
detrimental to its interests . Viewing Newola 's discharge in
light of her foregoing remarks, whether true or imprudent,
which the Respondent insists were the grounds for its deci-
sion to terminate her, it can scarcely be inferred that the
Respondent was, nevertheless, motivated by her union ac-
tivities . Certainly, Newola's union involvement did not im-
munize her from termination for legitimate or other non-
discriminatory reasons as those advanced by the
Respondent 27
In short, I find that the General Counsel has not con-
vincingly demonstrated that Newola's union activity was a
causative factor in her discharge or that the reasons relied
upon by the Respondent were mere pretexts to conceal the
Respondent's unlawful motivation. Accordingly, it is rec-
ommended that the relevant allegations of the complaint
be dismissed.
4. With respect to Moseley' s discharge
The General Counsel contends that Moseley was sum-
marily terminated on January 9, 1975, because of her
union activities which consisted of signing a union card,
attending two meetings, participating in the preelection
conference and acting as a union observer at the October
30 election. The Respondent, on the other hand, urges that
Moseley was discharged for legitimate cause, among other
things, for deliberately lying to Administrator Dzialo.
Here, too, I find that the General Counsel did not sustain
his burden of proving discrimination by a preponderance
of the evidence.
There is no question that the precipitating cause of
Moseley's termination was the January 9 episode, recited
above, in which Moseley admittedly lied to Dzialo in an
effort to cover up for an employee who had called in sick
and was excused from coming to work later in the day and
with whom Moseley had made prior arrangements to be
taken to a union meeting. Clearly, the events that tran-
spired on this occasion created a suspicious setting which
prompted Dzialo summarily to discharge Moseley for de-
liberately lying. Moreover, when the discharge is viewed
against the background of the Respondent's annoyance
that Moseley had not yet complied with its repeated re-
quests to vacate her living quarters so that they could be
converted into an activities room for patients, Dzialo's ac-
tion becomes even more understandable. In these circum-
stances, I am hardpressed to find anything in the record
from which an inference could reasonably and conscien-
tiously be drawn that Moseley's discharge was, neverthe-
less, a punitive measure for her union acitivity.
Accordingly, I recommend dismissal of the allegation of
the complaint pertaining to Moseley's termination.
27 In view of my determination, it is unnecessary to discuss the other
reasons urged by the Respondent as contributing to Newola 's discharge,
namely, her alleged mistreatment of patients and the poor choice of lan-
guage she used in their presence.
HIGHLAND AVENUE CONVALESCENT HOME
5. With respect to the alleged discriminatory denial of a
Christmas bonus
As discussed above , almost 4 months after the Respon-
dent acquired the Highland Avenue Home, it granted
Christmas bonuses or presents to all employees, union and
nonunion alike , except Moseley, ranging in amount from
$5 to $25. The complaint alleges that the Respondent with-
held this bonus from Moseley on account of her union
activities . The Respondent, however, contends that it did
not give her any money because she continuously griped;
she was the only employee with living-in privileges; and
she failed to comply with the Respondent's repeated re-
quests that she vacate her living quarters.
My review of the record fails to disclose sufficient evi-
dence that the denial of a Christmas bonus or present to
Moseley was discriminatorily motivated . Accordingly, the
relevant allegations of the complaint will also be dismissed.
6. With respect to unilateral changes in working
conditions
The complaint broadly alleges that on or about Novem-
ber 1, 1974, the Respondent unilaterally changed terms
and conditions of employment without consulting the duly
designated bargaining representative and thereby violated
Section 8(a)(5) and (1) of the Act. At the hearing, the Gen-
eral Counsel clarified these allegations to refer to the denial
of a Christmas bonus to Moseley ; the change in Miranda's
hours; and the withdrawal of Moseley's living-in privileges.
With respect to the question of the Christmas bonus, it is
the General Counsel's position that a Christmas bonus had
been established long ago as a condition of employment by
the Respondent 's predecessor and that it was continued by
the Respondent when 4 months after acquiring the Home,
it granted all the employees, except Moseley, a bonus in
varying amounts . However, the record does not contain
sufficient evidence upon which a finding could be made
that a Christmas bonus was a condition of employment
under the previous management which the Respondent
was obligated or continued to observe . In any event, as-
suming that the bonus is a condition of employment, I do
not believe that this working condition was unilaterally
changed simply because a bonus was withheld from one
employee. I, therefore, find that the Respondent's conduct
was not in breach of its bargaining obligation violative of
Section 8(a)(5) and ( 1) of the Act.
As for the change in Miranda's working hours, I find
that this, too, did not rise to the level of unilateral action
barred by the Act. Turning to the Respondent's withdrawal
of Moseley's living-in privileges , the record is not unequiv-
ocally clear that at that time the Union had already been
the employees' duly designated bargaining agent as a result
of winning the October 30 election. It appears that the Re-
spondent requested Moseley to move so that her apartment
could be converted into an activities room either during the
last few days in October or on November 1. Moreover, the
Respondent apprised the Union at a November or Decem-
ber negotiating session that Moseley was requested to
move because her apartment was needed for an activities
room and no objection was voiced by the Union. In these
1007
circumstances, I find that the Respondent did not breach
its bargaining obligation in this respect either.
Accordingly, dismissal of the 8(a)(5) and ( 1) allegations
of the complaint is recommended.
7. With respect to interference, restraint , and coercion
The complaint alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act by Administrator Dzialo's statement
to employees on or about October 31, the day after the
Board-conducted election, that the Union was not neces-
sary and that the Respondent's rules prohibiting union talk
was not permitted at work; and by Dzialo' s statement on
the same day that the Respondent had gotten rid of a
union at another nursing home owned by it.
Employees Sullivan and Miranda credibly testified that
at the November 1 employee meeting Dzialo told the em-
ployees that they did not need a union in order to hold on
to their jobs if they did their work properly . I find nothing
coercive or otherwise unlawful in that remark. As for the
prohibition against union talk, I have found above that at
the same November 1 meeting Dzialo intended to, and did,
convey to the employees the idea that they were prohibited
from engaging in union discussions on the premises at any
time , whether or not they were on duty or on their own
free , nonworking time and that they risked discharge if
they ignored her admonition. Obviously, this prohibition
was too broad and interfered with the employees' self-orga-
nizational right to engage in union discussions at the facili-
ty during their nonworking time and thereby violated Sec-
tion 8(a)(1) of the Act.
Lastly, regarding Dzialo's alleged reference to the
Respondent' s getting rid of a union at one of its other nurs-
ing homes, there is testimony that Dzialo indicated that,
after a year and a half of hiring, firing, and rehiring, the
employees "got the message" and decided to have nothing
to do with the union. I find this testimony somewhat am-
biguous and fails to establish that the Respondent resorted
to unlawful means to eliminate the union in that nursing
home and that it was similarly disposed to do the same
with respect to the Union which represents the employees
at the Highland Avenue Home. Accordingly, the applica-
ble allegation of the complaint will be dismissed.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practice found
and like and related conduct and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By warning employees that they were subject to dis-
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge if they engaged in union discussions on the prem-
ises, the Respondent interfered with, restrained, and
coerced employees in the exercise of their statutory rights
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in the other unfair
labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 2s
The Respondent, Highland Avenue Convalescent Home,
Inc., Fall River, Massachusetts, its officers, agents, succes-
sors, and assigns , shall:
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
1. Cease and desist from:
(a) Warning employees that they risk discharge if they
engage in union discussions on the premises at any time.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its nursing home in Fall River, Massachu-
setts, the attached notice marked "Appendix." 29 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
29 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."