Hospitality Home

National Labor Relations Board - Board Decisions

Aug 26, 1971

192 N.L.R.B. 1062 (N.L.R.B. 1971)

1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Branthaven, Inc. d/b/a,Hospitality Home and Hospital
and Nursing Home Employees Local 1199H of the
Retail, Wholesale and Department - Store Union,
AFL-CIO.-Case-99-CA-5797
August 26, , 1971
-DECISION AND ORDER
'BY CHAIRMAN MILLER AND MEMBERS
BROWN -AND JENKINS
On February 22, 1971, Trial Examiner Melvin J.
Welles issued his, Decision ' in = the above-entitled
proceeding, finding that the Respondent-had en-
gaged' in and, was engaging in certain unfair labor
practices- and recommending that it cease and desist
therefrom, and take certain= affirmative action, as set
forth in the- attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
dismissed. Thereafter the General, Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed a memo-
randum in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent they are consistent
herewith.
1. The Trial Examiner found, and Respondent
has not excepted to the finding, that Respondent
violated Section 8(a)(1) of the Act in at least three
instances of interrogation of the alleged discrimina-
tee, Isabelle Williams.
2. The Trial Examiner further found that the
General Counsel had failed to prove that the
discharge of Isabelle Williams on August 10, 1970,
was discriminatory and in violation of the Act. We
disagree with this finding and conclusion.'
Isabelle Williams began working for Respondent as
a nurses aide in December 1969. In the next 6
I The complaint also alleges that Respondent discriminatorily placed
Isabelle Williams on probation on July 27, 1970 . The Trial Examiner did
not specifically make a finding on this issue , but considered the matter in
connection with his ultimate conclusion.
2 The letter states that recently Williams had "obviously" lied to
Gillespie about her work and "activities" and that Brantley had felt it
months she was late repeatedly in reporting forwork,
left- early some five,- times,, and was, absent several
days when., she was scheduled to, work. Chief Nurse
Helen Gillespie credibly testified that on, occasions
there had been complaints about Williams -- from
nurses, and from patients, and that-beginning in April
1970 there were problems with, Williams being absent
from her work station on many occasions. Another
nurses aide,, Madalyn Gregory, corroborated much
of _Gillespie's testimony.
Late in June 1970, Williams contacted a, union
organizer, received some literature and cards, and
around July, 1, gave a card to, an employee- in
Hospitality Home. Virgil Brantley, president and
administrator of the Home, was given a card by an
employee and discussed the situation with Gillespie.
Thereafter, Gillespie talked with Williams, Asked
Williams for the cards Williams had (Williams stated
she did .not have any cards), ;and indicated she was
upset because she felt Williams should have come to
her or Brantley rather than bring in an outside
organization. Later, Brantley.,I took Williams aside
and asked Williams what good an outside influence
could do for Hospitality Home. Brantley was aware
of a union meeting which had been held at Williams'
home shortly after Williams hadbrought cards to the
Home.
On July 27, Brantley called Williams into his office.
Gillespie was also present. Brantley spoke about the
meeting in Williams' house and asked who had
participated in the union activities. Brantley said if
she wanted to be a union organizer she should have
joined the Union and not have come to the Home as
a nurses aide. After Williams said she liked being a
nurses aide, Brantley told her he wished she would
leave and that she should have gotten a job at
another nursing home. Gillespie also engaged Wil-
liams in conversation, questioning Williams about
her union activities and asking Williams the names of
people who had participated with Williams in these
activities. Williams then was given a probationary
notice, entitled "Work Performance," signed by
Brantley. In essence, the probationary notice, which
is set out in full in the Trial Examiner's Decision,
stated that Williams' work the "first few weeks was
excellent," that complaints started in March 1970,
that Gillespie discussed the matter with Williams but
the "problem" worsened,2 and that since efforts to
improve the caliber of her work had failed Williams
was being placed on probation during the pay period
ending August 8, 1970. The letter went on to state
necessary to talk to her. The record does not further illuminate this
particular indictment, although we agree with the General Counsel that this
statement undoubtedly refers to the several conversations Gillespie and
Brantley had with Williams concerning her union activities in the period
immediately preceding the issuance of the probationary letter.
192 NLRB No. 159
HOSPITALITY HOME
that if Williams' work performance improved the
letter would be removed from the file and the
probation removed.
In the ensuing 2 weeks, Williams continued her
union activities, and indeed on August 8, held
another union meeting which Brantley was aware of.
On Monday, August 10, she was given' a discharge
notice. Although the original probation notice had
referred to complaints from coworkers, the discharge
notice set out as an example of her unsatisfactory
work the number of times Williams had been late or
absent up to the time of probation and then noted
that in the probationary period Williams was late 7
times and failed 'to work 1 day.
Conceding that the issues surrounding Williams'
discharge were close and difficult, the Trial Examin-
er concluded that the General Counsel's strongprima
facie case that the probationary letter and subsequent
discharge was motivated by Williams' union activi-
ties `was met by an equally-strong affirmative case of
discharge for cause made by Respondent. In connec-
tion with this latter conclusion the Trial Examiner
found it difficult to believe that a company intent on
ridding'itself of a union'adherent`would provide such
an "easy escape hatch," i.e., improvement in her
work performance in the probationary period, and
that Williams did not "avail" herself of this opportu-
nity. He therefore concluded the General Counsel
had failed to prove by a preponderance of the
evidence that the discharge was discriminatorily
motivated.
Our reading of the record, however, compels us to
arrive at a different conclusion. Moreover, the Trial
Examiner) in his Decision doeslnot directly 'address the
question of whether the discharge was motivated at
least in part by Williams' union activities. If so, and
we find persuasive evidence to support such, a
conclusion, the probationary letter and the discharge
are clearly discriminatory, regardless of whether or
not there are other valid grounds upon which a
discharge might be based.
(1) In our view the record clearly reflects that the
probationary letter and the subsequent discharge
were basically motivated by Williams' union activi-
ties . In the period preceding the probation Williams
had been unlawfully interrogated about her union
activities. The same concerns dominated her meeting
with Brantley and Gillespie when she received her
probationary letter. Thus, 'before she-was given the
letter of probation, Brantley and Gillespie interrogat-
ed Williams about her union activities. Little, if
3 Footnote 4, Trial Examiner's Decision.
4 The futility of Williams' effort to improve her work performance when
Respondent had determined to rid itself, of this union adherent is
demonstrated by Gillespie's reaction to Williams ' effort to assist her
coworkers, Gillespie testified that she didn't know if Williams "really
1063
anything, was said about the alleged deficiencies in
her work, the ostensible reason for probation. It`is
clear the interrogation and probation cannot be
considered as events isolated from each other. The
spoken words-clearly betray the unwritten desire that
Williams must desist in her union-activities if she was
to remain a part of the Hospitality Home' family.
Moreover, the probationary, letter-, and' the dis-
charge letter, reflect such inconsistency, that we must
conclude that the stated reasons for' the discharge are
pretextual in nature. In the July 27 'probationary
letter 'it is stated that beginning in `March 1970
Respondent started receiving complaints from co-
workers that Williams was not doing her share. There
is no reference in this letter to Williams' admittedly
poor attendance' record.' Indeed, --the -letter ' states
Williams' work in- the first few weeks was excellent.
Yet, the record shows that prior to her probationary
period Williams lost more time in January 1970 than
in any other periods Therefore, it, would appear that
her tardiness and absences , were not of primary
concern to Respondent. However, at the, time of her
discharge, after the second union meeting, ° her
attendance record is, for the first time , ' made a
primary example of her unsatisfactory performance.
On_ the other hand, the.discha_rge makes no reference
to whether her work in ,_ other respects,had improved,
continued at the same level, or had deteriorated. On
this subject the, record is devoid of ,testimony, except
for that of Gillespie who testified that in this period
Williams "began coming down to help other people
even though she wasn't assigned,,to them," and
showed interest in, the patients themselves .4 Thus
aside from her continuing tardiness,;. the record shows
in 'the probationary period=Williams made an effort
to improve her work and cooperation with other
employees. No reference to , this is made in -,the
discharge letter. In summary, therefore, the record
shows that (a) Williams' early work, despite her poor
attendance record, was considered excellent; (b) in
March There were complaints about her work but no
probation or other formal warnings occurred; (c) in
June, Williams undertook to bring the Union in and
held a meeting, as Respondent - was aware of, in her
house; (d) Respondent interrogated Williams about
her union- activities; (e) Respondent , interrogated
Williams about her union activity- and at the same
time placed her on probation' allegedly because of
her "work"' performance; (f) Williams continued her
union activities and this was known by Respondent;
(g) Williams was discharged 2 days -after, the end of
wanted to" (help) or whether it was "just an effort to-what shall I
say-show off," and that ,she, (Gillespie) didn't "feel it was necessary
because -no one had asked her (Williams) to come- and help them." Thus,
Williams, although meeting the criticisms in the probationary letter, still
failed to satisfy Respondent.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her, probationary period with the :discharge notice
making particular reference to her attendance re-
cord; (h) the- only testimony about Williams' work
formance in the probationary period shows
illiams .was making an effort to improve her work.
We -conclude from this record that the General
Counsel has,, satisfactorily shown that the real reason
for Williams' probation and discharge was the union
activity she had engaged in despite the Respondent's
known, opposition, and that the Respondent's stated
reason jwas,pretextual in nature.
-,-(2) We consider it well settled law that if a
'discharge is. even partly motivated by the union
activity of the,discriminatee it is violative of the. Act
regardless of whether there exist other valid reasons
for the l .discharge.5 In the- ,instant case Williams'
alleged work deficiencies continued over a period of
some' 4 or 5 months without more than sporadic
corrections by ,Gillespie. No record warnings or
probations; were given. However, almost simultane-
ously with the commencement of her union activities,
of ;which the Respondent was well aware, the
Respondent engaged her in hostile and ' unlawful
interrogations about these activities, and took the
further step of placing Williams on probation. It is
svideat from these circumstances that Respondent,
whether or' not its stated reasons for the probation
and discharge were based on otherwise valid
grounds, was motivated, at least in part, by the desire
to eliminate union activity in its operation. The
probation 'and`discharge rwere,- therefore, violative of
the Act. - -
For the reasons set forth- above we find that
Respondent's probation and subsequent discharge of
Isabelle Williams were not for the reasons stated but
resulted; at, least in part, from Williams' union
activities, were discriminatory, and were in violation
of Section,8(a)(3) and (1) of the Act.
` THE REMEDY
Having found that the Respondent 'has engaged' in
certain unfair labor practices in -addition' to those
found by the Trial Examiner, we shall order it to
cease and desist therefromand take certain affirma-
tive action designed to effectuate the policies of the
Act. Accordingly 'we, " shall order that Isabelle
Williams be offered immediate and full reinstate-
ment to her former,position or, if that position no
longer exists, to- a substantially equivalent position,
without prejudice -to. her seniority or other rights and
privileges, and be made whole for any loss of pay
suffered by reason of the discrimination against her.
5 N.L.RB. v, Great Eastern Color Lithographic Corp., 309 F.2d 352 (C.A.
2); N.1„RB: v.' Barberton Pldstics'Prodhcts, Inc., 354 F.2n 66 (CA. 6);
N.L.R:B. V. Eastern Illinois"Gas'Co., 440 F.2d 656(C.A. 7).
Loss of pay shall be computed as prescribed in F. W.
Woolworth Company; 90 NLRB 289, and interest on
such backpay shall be computed at 6 percent per
annum in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716. We shall also order that the
Respondent make available to the Board, upon-
request, payroll and other records in order to
facilitate the checking of the amounts of backpay
due.6
ORDER
Pursuant to, Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby.orders that the Respondent,
Branthaven, Inc. d/b/a, Hospitality Home, Xenia,
Ohio, its -officers,, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) . Interrogating employees about their union
membership or activities in a manner constituting
interference, restraint, ,and coercion within the
meaning of Section 8(a)(l) of the, Act.
(b) Placing on probation, discharging, or otherwise
discriminating against any employee for the purpose,
in whole or in, part, of discouraging membership,
support, and activity in Hospital and Nursing Home
Employees Local 1199H of the Retail, Wholesale
and, Department Store Union, AFL-CIO, or any
other labor organization.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights of 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 protec-
tion, or,to refrain from any and all such activities.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Isabelle Williams immediate and full
reinstatement to her former' postion or, if that
postioh no longer exists, to"a substantially equivalent
position, without prejudice to her seniority and other
rights and privileges.
(b) Notify immediately the above-named individu-
al, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(c) Make whole the "above-named employee, in the
manner set forth in the, section herein entitled "The
6 In view of our additional findings of violations of the Act, we shall
modify the recommended Order to provid' a ° broad reihedial Order.
HOSPITALITY HOME
Remedy," for any loss of pay and benefits she may
have suffered by reason of the Respondent's discrim-
ination against her.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll' records and other data necessary to give
effect to the backpay requirement.
(e) Post at its place of business in Xenia, Ohio,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to 'insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER, dissenting:
I find the Trial Examiner's analysis of the evidence
more persuasive than that of my colleagues and
would adopt the Trial Examiner's findings, conclu-
sions, and recommendations in their entirety.
T In the event that 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 NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT-OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL _ LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about
their union membership or activities.
WE WILL NOT place on probation, discharge, or
otherwise discriminate against any employee for
the purpose, in whole or in part, of discouraging
membership, support, and activity in Hospital and
Nursing Home Employees Local 1199H of the
Retail, Wholesale, and Department Store Union,
AFL-CIO, or any other labor org anization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them under the National
Labor Relations Act.
WE WILL OFFER Isabelle Williams immediate
and full reinstate to her former position or, if that
position no longer exists, to a substantially
equivalent position, without prejudice to her
1065
seniority and other rights and privileges and wE
wiLL make, her whole for any loss of pay she may
have suffered ' as a result of her discharge August
10, 1970.
Dated By
BRANTHAvEN, INC. D/B/A
HOSPITALITY HOME
(Employer)
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the ,Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 2407, Federal Office Building,
550 Main Street, Cincinnati, Ohio, 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner : This case was heard
at Xenia, Ohio, on January 6, 1971, based on a charge filed
August 21, 1970, and a, complaint issued October 4,-1970.
The complaint alleges that Respondent violated, Section
8(a)(1) and (3) of the Act. Respondent filed an answer
denying that it violated the Act and claiming that it was
not engaged in commerce within the meaning of, the Act.
Counsel for the General Counsel, the Charging.Party, and
the Respondent filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, operates a nursing
home in Xenia, Ohio . Its gross income for the year
preceding the hearing in this case exceeded $460,000.
During, the same year Respondent purchased goods valued
at approximately $40,000 from companies which in turn
purchased those goods from outside the State of Ohio.
These admitted facts bring Respondent 's operations, as it
concedes, within the ambit of the Board's standard for the
assertion of jurisdiction over proprietary nursing homes as
set forth in University Nursing Homes, Inc., 168 NLRB 263.
I therefore reject Respondent's assertion that the Board
should not assert jurisdiction in this case , and find that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED that she , (Williams) was passing out union cards ., Gillespie
asked Williams to give,her the cards she had ,-and Williams
replied that she did not have any. Gillespie repeated that
she,, would like. to have the cards; mentioning, a high
number of cards that she believed Williams , had distribut-
ed.' Gillespie, according to her own testimony , was quite
upset at the time because she felt that Williams should
have gone to the person in ' charge , either herself or
Brantley, rather than bringing an outside organization in.
She further `testified that she thought she had the right to
ask what was going on in the organization and that is,why
she asked Williams if she had a card.-During, this
conversation , Gillespie also mentioned all the things
Hospitality - Home had done for Williams , such as giving
her a job and "things like that."
Shortly after the conversation with Gillespie , Brantley
took Williams aside, and said, "What good would outside
influence do for Hospitality Home?" He talked to her
about Miss Gillespie, Brantley saying that Gillespie does a
lot of things he would not do himself. He reiterated that it
was his wish that Williams would not let ' any outside
influence come in to Hospitality Home
Shortly after coming into the plant with the, cards,
Ailliams'had a union meeting at 'her home , to which she
had personally invited the employees of Hospitality Home.
Union representatives were also present at this meeting.
There is no question but that Virgil Brantley knew of this
meeting, he admitted as much on , the stand.
On July 27, Brantley called Williams into his office.
Head Nurse Gillespie was there at the time.3 Brantley
spoke about the meeting that Williams had had at her
house, and he asked her who had-participated in the union
activities with her. Williams responded that she would not
give him any names or involve anyone, but would take the
full responsibility -herself. Brantley said that he had been
informed that shewas planted there, and that if she wanted
to be a union organizer she should have joined the Union
and not have come to Hospitality Home and not been a
nurses aide. When Williams said she liked being a nurses
aide, Brantley told her that he wished she would leave, that
she should have gotten a job at another nursing home, and
that he was sure she could find a job at another nursing
home. There was also some conversation between Gillespie
and Williams at this , meeting. Gillespie, too, questioned
Williams about her union activities, and wanted to know
the names of people who participated with Williams in
Gillespie was, present at this meeting . When Gillespie testified as a witness
for Respondent, she said that she was present , on July 27, at this meeting,
and she described some of the conversations that took place at the meeting.
Brantley was subsequently recalled, and he attempted to explain the
discrepancy between his testimony and that -of Gillespie . He testified that
there were, in effect, two meetings on July 27, and his recollection had been
that at the second , meeting, a short one, where he handed a letter of
probation to Williams , Gillespie was not present, but that she had been at a
longer meeting earlier that day when some of the conversatioonf occurred
about which Williams and Gillespie had testified . Earlier, however, Brantley
had specifically , stated that he had no other conversation with Isabelle.
Williams on July 27 other than the short , 5-minute conversation. He also
made no mention at that time of Gillespie being present at any conversation
on that day with Williams. I do not find his explanation of having had his
memory refreshed, in the light of this earlier testimony, at all convincing. I
therefore credit Williams ' version of this meeting, which was in part at least
confirmed by Gillespie's testimony, over that of Brantley.
Hospital and Nursing Home Employees Local 1199H of
the" Retail, y Wholesale and ` Department Store Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A. The Facts
Isabelle
.
Williams began ' working for Respondent as a
nurses aide in December 1969 . During the next 6 months
she'was late ` reporting to work close to 100 times , left work
early (with ' permission) about 5 times , and'did not report
for work 9 times on days she was scheduled to works Chief
Nurse Helen Gillespie also testified credibly that on a
number of , occasions there had been complaints about
Isabelle , Williams both from other nurses and from
patients. Gillespie spoke with - Williams about these
complaints several times . Starting in April, Gillespie had
problems with Williams being away from her work station
on many occasions . Madalyn Gregory, also a nurses aide,
who had been with the Hospitality Home `for 5 years and
was often assigned to work with Isabelle Williams as a
team, corroborated Gillespie's testimony to the effect that
the other nurses aides often missed Williams from the floor
when she would be visiting in some of the residents ' rooms.
Gregory also testified credibly that she reported to Head
Nurse Gillespie on occasions when Williams was absent
from her work station . Both Gillespie and Gregory
indicated the types of problems that eventuated from
Williams coming in late in the mornings.
Late in June 1970, Isabelle Williams called a union
organizer , named 'David Jones and told him she would like
his help in organizing the Company's employees. Jones
told Williams that. he would send - some literature to her,
and he did so . -About the first of July, Williams took some
cards into the plant and gave one to one of the employees.
Subsequently an employee , unidentified in the record, gave
one of the Union's authorization cards to Virgil Brantley.
Brantley discussed with Gillespie the situation with respect
to his having received this union card , and other reports
that he had received about the Union beginning to
organize , On the same day, not too long 'after Williams
came into the plant with the cards, Gillespie had a
conversation with Williams , in which she told Williams
1 These figures are from timecards introduced into evidence by
Respondent Williams did not deny their accuracy . She testified that she
always called in to let the Company know when she would be absent.
Director of Nurses Gillespie , however, testified that she (Gillespie) was not
so informed on every occasion , although had, Williams called in, Gillespie
would be notified . It is possible, of course, that Williams called in and
spoke to someone other than , Gillespie, who failed to notify Gillespie, so
the testimony is not in any real conflict in this respect . I do find that
Gillespie did not receive word on every occasion that Williams was
absent , based on Gillespie's uncontradicted testimony . As more fu ly'set
forth below, - Gillespie was a very , forthright and' credible witness.
2 My finding - as to this conversation is based on the credited testimony of
Isabelle Williams.
3 Brantley first testified that only he and Williams were present when the
meeting of July 27 occurred. His initial testimony, volunteered rather than
in response to a question, was "incidentally , Mrs. Williams indicated that
Mrs. Gillespie was present at the time she was handed that first letter. That
is not correct . She was not there ." Williams had previously testified that
HOSPITALITY HOME 1067
such activities., Gillespie, in -her testimony, did not dispute
Williams' version of what=had occurred at this meeting,
although she did say she could not remember all of it. The
principal purpose of this meeting, of course, was to give
Isabelle-Williams her probation notice. This notice was in
the form of a memorandum addressed to Mrs. Williams on
the subject `.`Work Performance," signed by Administrator,
Virgil M. Brantley, and it read as follows:
On November 24; 1969 you filedan application for
employment at Hospitality Home. I checked with Sister
Mildred, your -supervisor at Maria Joseph Home,
Dayton, Ohio, to ascertain the quality.of your work,
your reliability, etc. Sister Mildred was very generous
in her appraisal of you and on December 2, 1969, you
entered.our employ. , ,
Your work, during the first few weeks was excellent
and your relations with both-residents and your fellow
workers was, exemplary. In March 1970, we started
receiving, complaints from your co-workers that you
were not doing your share. Miss Gillespie discussed the
matter with you at different times but the problem
steadily worsened. Recently when you obviously lied to
her about your work and your activities I felt that it
was necessary to speak with you. The result has been a
steady decline in your work performance..
I only bring the following matter up because l know
that if I fail to do so, you will bring it up. You-tend to
blame most of the problem on the fact that you are
black. In seven years of operation no one, neither
resident nor employee, has implied this. We believe
that the management of Hospitality Home has been as
lair and understanding as any employer could possibly
be and that this implication is groundless. Hospitality
Home is as well staffed as- any nursing home in the
state and although ,the work, at times, may be difficult
we only ask for a reasonable effort on the part of any
employee to do his fair share of the work. If this effort
is expended neither you, nor we, have any trouble:
Since several efforts to improve the calibre of your
work have failed I-regret'to inform-you that effective
upon receipt of this letter and during the pay period
ending August 8, 1970 you will be on administrative
probation. If your work performance during this period
improves and, your full cooperation is evidenced this
letter will be withdrawn from your file and administra-
tive probation removed. If there is no reasonable
improvement during this period you will be separated
from our employ effective August 22, 1070.
Basically, Isabelle, you are a fine person. It is
disheartening to all of us to see you havethis"'chip on
your shoulder". There is no reason, at all, for it to be
there. We have told you, and all our other employees,
many times that if you have a problem or complaint
please see one of us . We can do an effective job of
nursing and caring for our elerly charges only through
full-hearted cooperation of each one of us.
During the ensuing 2 weeks, Isabelle Williams continued
4 That Williams was late seven times during the pay period beginning on
July 27 and ending August 8 is borne out by the timecards in evidence. The
record also shows that she did not report to work on 1 day on which she was
scheduled to come to work during this period. Furthermore , on August 9,
the beginning of a new pay period, but a day before the discharge notice
her union activities. She met the union organizer and some
of his assistants in thel parking lot of Hospitality Home,
where= she conversed with-them°for about half an hour, and
on Saturday, -August 8, another unionmeeting was held at
Isabelle Williams' home. On Monday, August 10, Williams
was given her, discharge notice by way of another
memorandum to her labeled "Unsatisfactory Job Perform-
ance" and again, signed by Virgil M. Brantley,; the
administrator of Hospitality Home. This notice read,as
follows:
On July 27, 1970 you were handed a letter placing
you on probation for the pay-period ending August 8,
1970. That letter advised you "If your work- perform-
ance during this- period improves and your full
cooperation is evidenced" you would-be removed from
administrative probation and the-letter withdrawn from
your file.
For the period January 1, 1970 through July 25, 1970
you were scheduled to work a total of one hundred
-thirty-seven (137) days. During that time your attend-,
ance performance was as follows:
Late to work: 98 times
Failed to work: 10 times
Left work early: 8 times
During the probationary period July 26 through August
8, 1970 you were: '
Late to work: 7 times
Failed to work: 1 day
This is only one-example of your unsatisfactory work
performance but one which is well 'documented.
Since it is obvious from the above facts that you
have neither the desire nor inclination to do an
adequate job you are hereby separated from employ-
ment effective August 22, 1970. You -have unused
vacation time of one'(1) day and credited sick leave of
one (1) day, therefore, you will bescheduled to work
three (3) days during the week of August 16-22 and
carried on administrative paid leave for the final' two
days of the normally scheduled work period.4
B. The $(a)(I) Violation -
The facts recited above show at least three clear
instances of interrogation of Isabelle Williams by Hospital-
ity Home Administrator Virgil Brantley and Head Nurse
Helen Gillespie. I find that by such interrogation, Respon-
dent violated Section 8(axl) of the Act.
C. The Alleged 8(aX3) Violation
Bearing in mind that the General Counsel has the
burden of proving a violation of the Act by a preponder-
ance of the evidence, the case of Isabelle Williams is close
and difficult to decide. The General Counsel's case as
was given to Williams, she was late again and this time for 1 hour and 40
minutes. Not counting this I hour and 40 minutes on August 9, the total of
her seven latenesses added to 96 minutes during the pay period in question
which was the highest total of minutes late for any pay period since the
preceding January, when Williams was in her first month of employment.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented in his brief is a strong one . Thus, Williams had
been a 'less than adequate employee from almost the
beginning of her employment . Her 98 latecomings and 10
absences- over a 7-month period and her being away from
her work station on many occasions during those months
so `attest . Williams was the, employee who called Union
Organizer Jones to begin the Union's organizational efforts
about the end of 'June. Brantley admittedly received a'card
from an employee that had been brought into the plant by
Williams about the beginning of July. And almost
immediately thereafter Gillespie interrogated Williams
about the card and her interest in the Union, and Brantley
also questioned Williams, warning her in effect that the
Company would not tolerate outside influence over its
activities . Furthermore, during the course of the conversa-
tions surrounding the presenting to Williams of the
probation letter, Brantley told Williams that she had to
choose between being a union organizer and a nurses aide.
These facts present , without any question, a strong prima
facie case that Respondent was motivated in giving
Williams a probation letter and in her subsequent
discharge 2 weeks later by her union activities.
Respondent, on the'"other hand, makes out a strong case
of a discharge for cause . Thus, although Williams' lateness
and absences seem relatively constant during her employ-
ment tenure , both Chief Nurse Gillespie and nurses aide
Gregory testified credibly, as indicated above, that
Williams ' absences from her work station became pro-
gressively worse, and in fact began later thandideither,her
tardiness or her absences from work entirely . Furthermore,
Williams was warned on a number of occasions , both by
Gillespie and by. Brantley, about her lateness and her
neglect of work- Finally , and most significantly , she was
not discharged on July 27, but put on probation, with the
probation.letter stating that it would be removed from her
file if her work performance improved during the ensuing 2
weeks, but that if there were no reasonable improvement
during that period she would be separated from the employ
of Hospitality Home. Despite the opportunity thus given
Williams to remain _on the job by improving her work
performance, she was late seven times and absent once out
of 11 scheduled workdays in those 2 weeks . Furthermore,
these latenesses were at least as egregious in terms of total
time as almost any period except the first few weeks of
Williams' employment with Respondent. It may be that
Brantley" had' decided to fire Williams anyway, and he
might ` well have concluded that her performance did not
measure up,' even had she been on time every day, on some
more subjective standard . But Williams did not put
Brantley to that test. I cannot agree with the General
Counsel when he argues that Williams' continued and open
advocacy of `the Union during'" 2-week period, and in
particular her having another union,meeting at her house
just 2 days before her,-discharge, triggered the discharge
itself. Contrary to the General Counsel's contention, it'was
not suspicious timing that the final decision was made on
August 10, only 2 days after that union meeting, for on
July 27, before this meeting,,Respondent had already said
the decision would be made in 2 weeks ; i.e.,-on August 10.
It is difficult to believe that a company intent on ridding
itself of the chief union proponent among its employees
would give that employee such an easy escape hatch. That
Williams did not avail herself of thisproffered'opportunity
during those ,2 weeks suggests that her work performance
in that respect was 'so chronic that her ultimate discharge
would have been inevitable, Union or' no Union. As is
evident, and as I have already stated, this is not-an easy
case to resolve. Despite the July 27 letter's expressed hope
that Williams would improve so that Respondent could
keep her, it is probable at Respondent was -happy with
the ' fact that Williams coninued to report late, or °on the
one day not at all, during the probation period. But strong
though 'the General Counsel 's affirmative case is, Respon-
dent's case has, in my opinion, equal strength. I cannot, as
I view the matter, conclude that General Counsel has
proved a discriminatory discharge by a preponderance of
the evidence .' Accordingly, I shall recommend'dismissal of
the 8(a)(3) allegation of the complaint.
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. Respondent; . Branthaven, Inc. , d/b/a Hospitality
Home, is an employer engaged in commerce within' the
meaning of Section 2(6) and (7) of the Act.
' 2. Hospital and. Nursing Home Employees , Local
1199H of the Retail,' Wholesale and Department Store
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of their rights under Section 7 of
the Act in the manner , above found, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices, affect commerce
within the, meaning of Section •2(6)- and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of, the Act, I shall recommend that it cease and ' desist
therefrom and take certain' affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]