Kings Terrace Nursing Home

National Labor Relations Board - Board Decisions

Jun 3, 1977

229 N.L.R.B. 1180 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kings Terrace Nursing Home and Health Related
Facility and Hotel, Hospital, Nursing Home and
Allied Health Services Union, Local 144, SEIU,
AFL-CIO. Case 2-CA-14163
June 3, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On October 12, 1976, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent, the General
Counsel, and the Charging Party filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Contrary to our dissenting colleague, we agree with
the Administrative Law Judge that the General
Counsel failed to meet his burden of establishing that
Respondent unlawfully discharged employee Judith
Horton. Indeed, we find, as did the Administrative
Law Judge, that there is no evidence that Horton was
ever discharged.
On October 15, 1975, Horton, a licensed practical
nurse, took leave to enter a hospital. On October 17
or 18, Horton's supervisor, Thompson, advised her
that she had scheduled someone to substitute for her
in the next few days while she recuperated, but that
she (Horton) should call the following Monday for
scheduling. Horton worked the following Wednes-
day, October 22, but was told that Assistant
Administrator Solymosy had made substantial
changes in the schedule and that she should check
daily with Thompson about the availability of work.
Horton was not scheduled to work on Thursday. On
Friday, Horton went to see Thompson. Thompson
scheduled her to work the following Tuesday and
told her that she would try to "squeeze" her into the
November schedule. Horton protested that before
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings. In
so doing, however, we specifically do not rely on the Administrative Law
Judge's taking official notice of a prior case involving the Respondent
which, at the time of the Administrative Law Judge's Decision, herein, was
229 NLRB No. 161
she left on sick leave she had a job and that if she did
not find out what was going on she would go to the
Labor Board.
On Saturday, October 25, Horton asked Adminis-
trator Ciraldo why she was getting "the runaround."
Ciraldo told her that he had no knowledge of the
matter. According to Horton's credited testimony,
she told Ciraldo that unless she received some
answers she would go to the Labor Board. Ciraldo
responded by telling her not to threaten him with the
Labor Board, that if that was the way she felt they
did not need her there and she therefore did not have
to come back, whereupon Horton told him that she
just wanted answers and was not threatening him. At
that point Ciraldo took her telephone number and
told her that either he or Supervisor Thompson
would call her.
The following Tuesday, October 28, Horton report-
ed for work as scheduled, but discovered that
someone else had been assigned to her station.
Thereafter, Horton made no further attempt to
contact the hospital for work assignments. Respon-
dent, however, called Horton three or four times in
late October, early November 1975, and again in
April 1976, and offered her work assignments.
Horton, however, declined the offers.
Although we find that Respondent violated Section
8(a)(1) by Ciraldo's October 25 threat to discharge
Horton, we are unable to agree with our dissenting
colleague's conclusion that Respondent removed
Horton from the October 28 work schedule and
thereafter denied work to her in furtherance of that
threat. In our view, the record simply contains no
substantial evidence establishing a nexus between
Ciraldo's threat and the removal of Horton from the
October 28 schedule. Indeed, the evidence shows that
Ciraldo is not involved in scheduling the licensed
practical nurses. While the timing of Horton's
removal from the October 28 schedule might appear
suspicious, mere suspicion cannot substitute for
proof of an unfair labor practice.2
Furthermore, our dissenting colleague's conclusion
that Horton was discharged simply is not supported
by the record. His conclusion is premised on his
finding that Horton regularly worked 40 hours per
week prior to the October 25 threat, but abruptly
thereafter was not scheduled for work. It is clear,
however, that Horton experienced a drastic reduc-
pending before the Board on exceptions. Inasmuch as the Administrative
Law Judge resolved the testimonial conflict between Symonds and Ciraldo
on the basis of Symond's demeanor, and the circumstances, disregard of the
prior case does not impugn the credibility resolutions here.
2 See, e.g., DSL Mfg., Inc., 202 NLRB 970 (1973). Although our
colleague distinguishes DSL on its facts, he does not contest the validity of
the legal principle for which it is cited. Unlike our colleague, we are
unwilling, on this record, to find that Horton's removal from the October 28
schedule was unlawfully motivated.
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KINGS TERRACE NURSING HOME
tion in her work assignments immediately upon her
return from the hospital on October 17 or 18. Thus,
although she had regularly worked at least 40 hours
per week prior to October 15, between October 17
and 25, Horton was scheduled to work only I day
and was instructed by Supervisor Thompson to
check with her daily for work assignments; and,
while it is not clear why Horton's hours were
changed, the General Counsel concedes that Respon-
dent's action in this respect was not unlawful 3 Given
this prior reduction in hours, there is no basis for our
colleague's finding that Respondent's failure to
schedule Horton for full-time work after October 25
amounted to an abrupt change in her circumstances,
or for his inference that she was contructively
discharged for unlawful reasons. Finally, in light of
the record evidence showing that Ciraldo told
Horton on October 25 that he or Supervisor
Thompson would call her about future work assign-
ments, and the fact that Respondent thereafter called
her three or four times to offer her work assignments,
it is obvious that Horton was not discharged
constructively or otherwise but remained an employ-
ee of Respondent. 4
In view of the foregoing, we agree with the
Administrative Law Judge that the General Counsel
has failed to establish that Horton was unlawfully
discharged in reprisal for her statement that she
would go to the Board if her questions were not
answered. Accordingly, we agree with the Adminis-
trative Law Judge's dismissal of this allegation of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Kings Terrace
Nursing Home and Health Related Facility, New
York, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
:' Our colleague, although acknowledging that the complaint did not
allege that Respondent unlawfully reduced Horton's hours between October
17 and 25, has curiously come to the conclusion that the General Counsel
has not conceded the legality of such cutbacks. Apart from the fact that no
allegation was made in the complaint as to that period of time, in his brief to
the Board the General Counsel took no exception to the Administration
Law Judge's finding that the cutback in hours was not motivated by
antiunion considerations and, indeed, he specifically conceded that "the
record failed to establish a clear connection between those [Horton's union]
activities and Horton's discharge."
In addition, our colleague finds that the issue of Horton's reduction in
hours prior to October 25 is of no significance and concludes that the
absence of Horton's name from the work schedule on October 28
constituted an abrupt change in her circumstances. We find, contrary to our
dissenting colleague, that the evidence regarding Horton's prior reduction in
hours is highly probative inasmuch as it clearly shows that the failure to
MEMBER JENKINS, dissenting in part:
I think it plain that Respondent violated Section
8(a)(1) by discharging Judith Horton. Neither the
Administrative Law Judge nor my colleagues provide
any rationale in support of their finding that Horton
was not unlawfully discharged. The credited testimo-
ny compels a conclusion that Horton was removed
from the work schedule, was thereby deprived of
work, and was thus discharged, because she stated
that she would go to the Labor Board for assistance.
On October 15, 1975, Horton was granted leave to
enter a hospital. On October 17 or 18, Horton
advised her supervisor, Thompson, of her availability
to return to work. However, when she reported to
work, she was told to check with Thompson daily
about working. Thompson told Horton that a Ms.
Solymosy had made changes in the schedule, and,
when Horton asked Solymosy why she was not
scheduled to work, she was told that Thompson was
in charge of making out the schedule. Horton
thereafter inquired of Thompson why she no longer
had a full-time job and received no satisfactory
explanation. She told Thompson that if she did not
get any answers she would go to the Labor Board,
but would first speak to Joseph Ciraldo, Respon-
dent's administrator. Horton asked Ciraldo why she
was getting the runaround, and stated that either he
give her some answers or she would go to the Labor
Board. According to the credited testimony, Ciraldo
told her not to threaten him with the Labor Board,
that if that was the way she felt, they did not need her
there and she did not have to come back. 5 Following
this conversation Horton again reported for work
and was told that she was not listed on the schedule.
Despite the foregoing, the Administrative Law
Judge finds there is no evidence that Horton was ever
discharged. This finding appears to lack any rational
support, for, when an employee who had regularly
worked 40 hours or more a week is abruptly not
scheduled for work, a clear discharge has occurred
even though words of discharge have not been
formally used.6 In view of the Administrative Law
Judge's credibility determination that Horton had
assign her work on October 28 did not constitute an abrupt reduction in her
hours.
4 We fail to understand on what basis our colleague has concluded that
Respondent's offers of work assignments to Horton after October 25 have
no bearing on the issue of whether or not she was terminated, inasmuch as
such offers clearly indicate that Respondent considered Horton to be in its
employ after that date.
s I agree with my colleagues that Respondent violated Sec. 8(aXI) by
Ciraldo's threat to discharge Horton for stating that she would go to the
Labor Board.
6 The majority's statement that the General Counsel concedes the
legality of Horton's reduction in hours upon her return from the hospital is
unsupported by the record. That issue was not alleged in the complaint and
is of no significance. Indeed, Horton's attempt to determine why she was no
longer regularly scheduled to work led to her meeting with Ciraldo when he
threatened her with discharge if she went to the Labor Board.
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not quit, I cannot understand the majority's failure to
recognize that she was discharged. The majority is
unable to explain the significance of Respondent's
removal of Horton's name from the work list. The
possibility that Respondent may have asked Horton
to work three or four times during the 6 months
following the removal of her name from the work list
can have no bearing on the issue of whether she was
terminated. At the very least, Respondent's removal
of Horton's name from the work schedule constitutes
a constructive discharge. The Administrative Law
Judge seemingly concedes that point, but then finds
no violation because there is no evidence to support
a finding that the denial of work to Horton was
related to her union activities. But that finding hardly
disposes of the issue, for the Administrative Law
Judge inexplicably failed to discuss the complaint
allegation that Respondent's actions violated Section
8(a)(l), without regard to Horton's union activities. It
is uncontroverted that Horton's name was removed
from the work list. Respondent offered no credible
explanation for this action and the only probative
evidence in the record regarding the reason is
Ciraldo's threat of job loss if Horton went to the
Labor Board. In such circumstances, the only
supportable conclusion is that Horton's removal
from the work assignment list was caused by
Respondent's displeasure with her statement that she
would seek redress with the Labor Board. It matters
little whether her discharge is regarded as "construc-
tive" or otherwise. The fact remains that she was
denied work for an unlawful reason. The majority's
failure to connect Ciraldo's unlawful threat to
discharge Horton with Horton's discharge is puz-
zling, since that unlawful threat constitutes the only
evidence in the record with respect to Respondent's
motivation for the discharge. According to the
majority's theory, if a corporation president unlaw-
fully threatens certain employees with discharge for
engaging in protected activities, and the next day
those employees are actually discharged, there is no
violation by the discharge unless it can be clearly
ascertained that the president personally ordered the
action. The majority's reasoning is, at the least,
curious.7
Accordingly, I would find that Respondent violat-
ed Section 8(a)(1) by discharging Judith Horton, and
would make Horton whole for her loss of work.
7 The case cited by the majority, DSL Mfg., Inc., 202 NLRB 970 (1973),
is clearly inapposite. In that case, a violation was not found because there
was no probative evidence except for the actual discharge, and there, unlike
here, the respondent had not independently violated Sec. 8(aX1).
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
proceeding was initiated by a charge filed by the Union on
March 19, 1976,' which charge was amended on May 5. On
May 7, complaint issued alleging that the Employer
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by discharging two employees,
Royston Symonds and Judith Horton. On July 19, hearing
was held in New York City, New York.
Upon the entire record, including my observation of the
witnesses, and after consideration of the brief filed by
General Counsel, I hereby make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Discharge of Judith Horton
Respondent is a partnership engaged in the operation of
a nursing home providing health care and related services
to the elderly in New York City, New York. 2 The facility
began operation about July 14, 1975. Judith Horton was
employed as a licensed practical nurse in August. On
October 15, Horton took leave to enter a hospital. She had
approval from Yolanda Thompson, a registered nurse in
charge of the second shift on which Horton worked. 3 On
October 17 or 18, Horton advised Thompson of her
availability to return to work after Sunday. Thompson
indicated she had someone scheduled to work Horton's
station through Sunday and would schedule someone for
Monday to give Horton additional time to recuperate. She
suggested Horton call on Monday. Horton did and was
scheduled to return to work on Wednesday. She worked
Wednesday, but was told by Thompson that a Ms.
Solymosy had made big changes in the schedule and that
Horton was to check with Thompson daily about working.
Horton checked on Thursday and was not scheduled for
work. On Friday, she went to the nursing home and spoke
to Solymosy who told her she did not know what was going
on, that Thompson was in charge of making out schedules.
Horton went to Thompson who told her she was not
through making out the November schedule, but she would
try to squeeze her in. Horton protested that before she left
on sick leave with approval she had a job and she wanted
to know what was going on. She said if she did not get any
answers she would go to the Labor Board, but before doing
that she would speak to the home's administrator, Joseph
Ciraldo, an admitted agent of Respondent.
On Saturday, Horton spoke to Ciraldo and explained her
situation. He told her he had no knowledge of the matter
I Unless otherwise indicated all dates are in 1976.
2 Although Respondent is a partnership, the partners have not been
charged or named in the complaint: however, Respondent has not
questioned the legal sufficiency of the charge and complaint. As to
jurisdiction, Respondent admits that it meets the Board's standard for the
assertion of jurisdiction over nursing homes.
3 On the basis of Horton's uncontradicted testimony, I find that
Thompson assigned work and prepared work schedules in a manner
requiring the exercise of independent judgment and that she was a
supervisor within the meaning of Sec. 2(1 I1) of the Act.
1182
KINGS TERRACE NURSING HOME
and that she should speak to Thompson or Solymosy.
Horton told him she already had, without satisfaction, and
she asked why she was getting the runaround. She testified
she told Ciraldo either he gave her some answers or she
would go to the Labor Board, and that he told her not to
threaten him with the Labor Board, that if that was the way
she felt they did not need her there and she did not have to
come back. Ciraldo denied that Horton made any mention
of the Labor Board to him and implicitly denied he
threatened her.
In Horton's conversation with Thompson on Friday,
Thompson had arranged to schedule her to work on
Tuesday, October 28. In view of Ciraldo's remarks to her
on Saturday, Horton called Thompson on Monday to find
out if she was still scheduled. Thompson said she had not
spoken to Ciraldo and Horton was still scheduled.
On Tuesday, when Horton reported for work, she
discovered someone else was scheduled for her station. She
spoke to Solymosy who apparently knew nothing about the
matter other than that Horton was not listed on the
schedule. Thompson was not there that night and Solymo-
sy told Horton there was nothing she could do. She
inquired whether Horton had received any warning notices
and Horton said she had not, that since she had been out of
the hospital all she had received was a runaround and that
if Solymosy was trying to aggravate her to force her to quit,
she did not aggravate easily. She said if she had to she
would go to the Labor Board. Horton left and did not
return or call again about work. She received calls to come
to work about three times thereafter, but declined the
offers because they were made too late in the afternoon.
Ciraldo testified that he overheard a loud argument
between Horton and the director of nursing on Tuesday,
October 28, wherein Horton was disputing a deduction
from her pay respecting overtime. When Horton obtained
no satisfaction, she walked out stating she was quitting.
B. The Alleged Discharge of Royston Symonds
On February 17, Symonds was working for Respondent
as a chef, a position not contended to be supervisory. That
day, he and two other kitchen employees spoke to Ciraldo
about the reinstatement of a waitress fired the day before
by one Ms. Bennett. Symonds testified that after a
discussion in which Bennett refused to rescind the
discharge, and after Symonds tried to discuss the matter
further, Ciraldo told him and the two other employees that
he was fed up and that they were fired.
Ciraldo admitted meeting with Symonds and the two
other employees to discuss the discharge of a waitress. He
testified, however, that he did not fire the employees; to the
contrary, even before Bennett had the opportunity to
discuss the matter Symonds said he quit and he and the
other employees walked out.
4 In taking official notice of Administrative Law Judge Itkin's decision, I
am aware that Respondent has taken exception and that the matter is
pending review by the Board. Nevertheless. I deem it appropriate to take
C. Analysis and Conclusions
I. Royston Symonds
The complaint alleges that Symonds was discharged
because of his concerted activity in seeking the reinstate-
ment of a fellow employee and because of his activities on
behalf of the Union. As to the latter allegation, I find no
evidence to support it. Symonds signed cards on behalf of
three unions and handed some out on behalf of two, but
there is no evidence Respondent knew of his activities.
As to the allegation that he was discharged because of his
protected concerted activities, the decision depends on
whose testimony is credited. It is clear that in seeking the
reinstatement of a fellow employee in concert with two
other employees Symonds was engaged in activity protect-
ed by Section 7 of the Act. As Symonds testified, the
discharge of the fellow employee had created a shortage of
help which made his work more difficult.
On the issue of credibility, the choice is between
Symonds' testimony and that of Ciraldo. No other
witnesses to the conversation between them were called. I
credit Symonds. Apart from Symonds' demeanor, which
appeared to be candid and forthright, I can see no reason
for Symonds to have acted as precipitately as Ciraldo
claimed. Moreover, I have taken official notice of the
decision of Administrative Law Judge Frank H. Itkin in
Case 2-CA-14110, decided April 30, 1976 [227 NLRB
251], wherein he found on the basis of uncontradicted
testimony that only 8 days earlier, on February 9, Ciraldo
had precipitately discharged an employee for soliciting on
behalf of a union. In this connection, it is noteworthy that
Ciraldo testified before me that his only awareness of
organizational activity at Respondent's facility was his
receipt of some sort of notice from the Board and active
solicitation outside the home at election time, which was
March 25. Such testimony is at odds with the incidents
described by Administrative Law Judge Itkin.4
In short, on the basis of Symonds' credited testimony, I
find that Respondent discharged Symonds because of his
protected concerted activities and that it thereby violated
Section 8(a)(1) of the Act.
2. Judith Horton
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by threatening Horton with discharge on
October 25 if she sought aid or assistance from the Board,
and Section 8(a)(1) and (3) of the Act by discharging her
on October 25 because she joined and assisted the Union
and engaged in other concerted activity.
Horton's case is like Symonds' in that it too presents an
issue of credibility. Again, the issue is between two
witnesses, Horton and Ciraldo. For reasons not entirely
clear to me, no other participants in the events described
by Horton were called by any of the parties. As between
Horton and Ciraldo, I credit Horton. Ciraldo's testimony
was vague and his testimony about the conversation he
overheard on Tuesday, October 28, was not plausible.
official notice of the findings of Administrative Law Judge Itkin as they
were based on uncontradicted testimony.
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tuesday was not a payday and Ciraldo could offer no
explanation why Horton would be discussing her pay on
that day. Ciraldo was not even certain to whom Horton
was speaking. He testified it was either Ms. Bedford or
Thompson, whereas Horton had testified her conversation
was with Ms. Solymosy. I conclude Horton was discussing
the fact she was not being scheduled to work.
Having credited Horton, I find that Respondent violated
Section 8(a)(1) of the Act by Ciraldo's threat to discharge
Horton for stating she would go to the Labor Board to
obtain assistance. One of the rights accorded employees
under Section 7 of the Act is the right to seek redress of
grievances respecting conditions of employment through
the processes of the Board. Cf. N.LR.B. v. Industrial Union
of Marine & Shipbuilding Workers of America and its Local
22 (Limited States Lines Co.), 391 U. S. 418 (1968).
Despite the foregoing, I find the evidence insufficient to
support a finding that Horton was discharged for unlawful
reasons. In the first place, there is no evidence that Horton
was ever discharged. True, on October 25, Ciraldo told
Horton not to threaten him with the Labor Board, that if
that was the way she felt they did not need her there and
she did not have to come back. However, Horton testified
further that, when she said she was not threatening him
and that she just wanted answers, Ciraldo took her
telephone number and said he or Ms. Thompson would
call her. Such a remark indicates he did not consider her
discharged. While neither he nor Ms. Thompson called
Horton, on Monday night Horton called Thompson and
was told Ciraldo had not called and she was still on the
schedule. Horton was not on the schedule when she
reported for work on Tuesday, however, and one might
infer from this that between Monday night and Tuesday
afternoon Ciraldo caused Horton to be removed from the
schedule. In my judgment, such an inference would be
unwarranted. It is evident from Horton's testimony that
Ciraldo did not involve himself in the scheduling of the
nurses. Moreover, the evidence respecting Symonds' case
indicates that Ciraldo is not given to the use of subtle
means. Had he intended to discharge Horton for her threat
to go to the Labor Board he would not have done so by the
subterfuge of having her name removed from the schedule.
In the final analysis, the most that can be said for
Horton's case is that she was constructively discharged by
not being reassigned to regular work upon her release from
the hospital. But this is of little avail to Horton's case as
there is really no evidence to support a finding that the
treatment accorded her was attributable to her union
activities. Horton had signed cards on behalf of two unions
and procured a card for another employee to sign, but she
does not appear to have played an active role in the
organizational activity. More importantly, it is clear from
Horton's testimony that her supervisor, Ms. Thompson,
was friendly with her and agreed with Horton about
unsatisfactory working conditions in their discussions
about union representation. In the circumstances, I cannot
believe that Thompson did not return Horton to a regular
work schedule because of her union activities. The record
does not indicate why Horton was treated as she described
after her release from the hospital, but the burden of proof
is on General Counsel, not on Respondent. Horton's
testimony created at best a suspicion of discrimination.
IL. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations described herein, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
III. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Specifically,
it shall be recommended that Respondent be ordered to
offer Royston Symonds immediate and full reinstatement
to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by
reason of his unlawful discharge by payment to him of a
sum of money equal to that which he normally would have
earned as wages, from the date of his discharge to the date
of the offer of reinstatement, less net earnings, to which
shall be added interest at the rate of 6 percent per annum
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
I. Kings Terrace Nursing Home and Health Related
Facility is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Hotel, Hospital, Nursing Home and Allied Health
Services Union, Local 144, SEIU, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening employees with discharge for stating
that they would go to the Labor Board to seek redress of
complaints about working conditions, Respondent engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
4. By discharging Royston Symonds because of his
protected concerted activities, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
1184
KINGS TERRACE NURSING HOME
ORDER 5
The Respondent, Kings Terrace Nursing Home and
Health Related Facility, New York, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge for stating that
they would go to the Labor Board to seek redress of their
complaints about working conditions.
(b) Discharging employees because of their protected
concerted activities for the purpose of mutual aid and
protection.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Royston Symonds immediate and full
reinstatement to his former job or, if it no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason
of the discrimination against him in the manner set forth in
the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to a
determination of the amount of backpay due under the
terms of this recommended Order.
(c) Post at its facilities in New York City, New York,
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint found not to have been sustained by a
preponderance of all the evidence be dismissed.
5 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.
6 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the National Labor
Relations Act and has ordered us to post this notice. We
hereby notify you that:
WE WILL NOT threaten to discharge employees for
stating that they will go to the Labor Board about their
complaints about working conditions.
WE WILL NOT discharge employees because they
engage in protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them in Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Royston Symonds immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and WE WILL pay him the wages which he lost because
we discharged him unlawfully.
KINGS TERRACE NURSING
HOME AND HEALTH
RELATED FACILITY
1185