Leisure Lodge Nursing Home

National Labor Relations Board - Board Decisions

Jul 23, 1980

250 N.L.R.B. 912 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leisure Lodge Nursing Home and Mary E. Byrd, and Edna Phillips. Cases 16-CA-8353 and 16- CA-8367 July 23, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On March 11, 1980, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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. 2 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, Leisure Lodge Nursing Home, Nacogdoches, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge inadvertently referred to Byrd instead of Wright in describing certain testimony by Chatman which culminates in fn. 15 and to "Administrator Byrd" when he meant "Administrator Wright" in fn. 20. We correct these errors 2 With respect to the backpay involved, Member Jenkins would com- pute interest in accordance with the formula in his partial dissent in Olympic Medical Corporation, 250 NLRB No. I1 (1980) DECISION Introduction HAROLD A. KENNEDY, Administrative Law Judge: Acting on charges filed on February 26 and March 5, 1979, respectively, by Mary E. Bryd, a licensed voca- tional nurses aide (LVN), and Edna Phillips, a nurses aide, the Regional Director for Region 16 of the Nation- al Labor Relations Board on April 30, 1979, issued a complaint charging Leisure Lodge Nursing Home of Na- cogdoches, Texas, herein called Respondent, with violat- ing Section 8(a)(1) of the National Labor Relations Act, as amended, by discharging (and refusing to reinstate) Byrd, Phillips, and five other' employees on or about December 2, 1978,2 "because they engaged in concerted activities with other employees for purposes of collective bargaining and other mutual aid and protection." Re- spondent admitted the jurisdiction of the Board, but denied that it had discharged any of the named employ- ees or that it had violated the Act as alleged. The case was heard in Nacogdoches, Texas, on July 10, 11, and 12 and August 28, 1979. I find that Respondent did unlawfully discharge the seven employees as alleged and, accordingly, recommend entry of an order directing reinstatement and payment of backpay. The Facts Virtually all of the events relevant to the instant pro- ceeding occurred on the morning of Saturday, December 2. Many of the facts are not in dispute. The pleadings establish that Respondent is headquar- tered in Fort Smith, Arkansas, that it performs services valued in excess of $100,000 annually, and that it re- ceives goods valued at over $5,000 from Texas firms which receive the goods directly from outside that State. In addition to these admitted facts, Respondent concedes that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that it is a health care institution within the meaning of Sec- tion 2(14) of the Act. Respondent's answer also admits that Wanda Wright, the administrator of the Nacog- doches nursing home, is, and has been at all times materi- al herein, an agent of Respondent and a supervisor as de- fined in the Act. Leisure Lodge Nursing Home of Nacogdoches is clas- sified as an "Intermediate Care Facility III" which pro- vides care for totally incapacitated patients.3 On Decem- ber I there were approximately 57 patients at Respond- ent's nursing home. Their average age was well over 80 and at least half of them had "cardiac problems." Some were able to go to the dining room for their meals, while others, referred to as "feeder patients," had to be fed in their rooms by nurses aides. Other patients elected to feed themselves from trays brought to their rooms.4 The staff included the following employees: Adminis- trator Wanda Wright; Assistant Administrator Kathryn Darvile, the next person in charge; Director of Nursing Mary Lane, an RN and concededly a supervisor under the Act; Activities Director Euncie Fuller; Food Service Supervisor Nell Jurney; four cooks, including the two i The other employees allegedly discharged unlawfully were: Ella Chatman. Rosland Deckard, Shirley Green, Hazel J. Whitiker, and Mari- lynl Menifee (McLonden) All dates refer to 1978 unless otherwise stated :' Wanda Wright, the administrator of the home since July 1, 1977, tes- tified that the home is not required to have a registered nurse (RN) on duty as it does not provide skilled nursing care. ' Ruby Dove, one of the cooks at Leisure Lodge, explained that three kinds of trays were prepared-one type for those eating in the dining room, another type called a room tray. and a third type called a feeder tray The dining room opened for breakfast at 7 a.m Room trays were thereafter taken to room patients who could feed themselves Feeder trays were the last to go out of the kitchen On December 2 there were approximately 12 feeder patients at the home 250 NLRB No. 134 912 LEISURE LODGE NURSING HOME cooks on duty after 6 a.m. on December 2, Ruby Dove and Dorothy Gates; a medication aide, Shirley Green, who worked the 7 a.m. to 3 p.m. shift; three licensed vo- cational nurses (one for each shift), including Day Charge Nurse Mary Byrd; several nurses aidcs, including Edna Phillips, Rosland Deckard, and Hazel Whitiker; two housekeepers, Marilyn Menifee and Lila Chatman; a janitor, Clyde McCormick; and an assistant janitor, Randy Jurney, Nell Jurney's son. Employees (except cooks) were generally assigned to work one of three shifts as follows: 7 a.m. to 3 p.m., re- ferred to as the day shift; 3 p.m. to II p.m.; and 11 p.m. to 7 a.m. The nursing home is of a cartwheel design, consisting of six corridors or hallways, each of which originates and radiates in different directions from a central point where the nurses' station is located. A diagram of the floor plan of the nursing home, received by stipulation, is in evidence as Respondent's Exhibit 2. One enters the building through the main entrance and proceeds in a westerly direction toward the nurses' station. In the back of the nurses' station on the west side are the kitchen and dining room. The corridors have rooms on each side and provide access to six wings, identified by letters running from "A" through "F." The medication room is located close to the nurses' station on the south side where wings D and E come together. Administrator Wright's office is located on corridor F (marked "W" on Resp. Exh. 2). The office of the director of nurses is next door (marked "DN" on Resp. Exh. 2). A patient may call for assistance by pulling a cord which causes a light to go on near the nurses' station.5 There had been some problems in connection with the operation of the nursing home prior to December 2. Medications had not always been signed for; heavy rains had resulted in water coming into some rooms; flushing of commodes caused further flooding of halls and rooms; work between shifts had not always been well coordinat- ed; and a patient's room tray was not always returned to the kitchen, along with the patient's diet card, by the night (11 p.m. to 7 a.m.) shift with the result that the pa- tient might get breakfast late or not at all. On occasion the morning shift would find "dry BM on the patients and they would be wet." Administrator Wright held monthly meetings with the staff. Wright held such a meeting in the dining room on November 30 at which time she recognized the month's "Outstanding Employee." She asked if there were any complaints, and none were voiced. 6 Thereafter Mary Lane, the director of nursing, met with the nurses aides on one side of the dining room. Nurses aide Edna Phil- lips said she brought up the subject of a patient, a Mrs. Roy, not being fed on an earlier occasion because of the failure of a nurses aide to pick up the patient's tray with " A board or panel of lights. visible at the nurses' station, is situated above each hallway Byrd's testimony to the conlrary Was based on challenged hearsa, She did not attend the staff meeting and attributed her information Ito Edna Phillips Phillips herself testified that complaints "about feeder trals and things" were nol raised until later that mnoring .hcn she iland lother aides met with the director of nursing a diet card during an earlier shift.7 Phillips also referred to the flooding problem and complained of having to do work that she thought should be done by persons work- ing on other shifts. The testimony of the principal witnesses follows:" Charge Nurse Mary Byrd arrived at the nursing home around 7 a.m. on December 2, about the time patients were scheduled to begin eating in the dining room. Nurses aides were to begin to serve feeder patients short- ly thereafter. Byrd began a count of medications and dis- covered that the count on a diarrhea medication, Lomo- til, was different (four pills less) from the count recorded by the charge nurse that she was relieving, a Mrs. Pace. Byrd said she noted the shortage in the drug book and then went to the dining room to start the serving of the feeder patients. On entering one room she and nurses aide Phillips found George Stern, a spastic patient who was supposed to be restrained at all times, standing up near the foot of his bed with his restraining straps loose. Byrd said Stern was restrained in a wheelchair and she then proceeded to serve two sister patients. Byrd testi- fied that she was so upset by the conditions that morning that she decided to call Mary Lane, the director of nurs- ing.9 After trying unsuccessfully to reach Lane by tele- phone on two occasions, she called Administrator Wright at her home around 8:30 a.m. and talked with her for approximately 2 minutes. Byrd said she told Wright that "we" need to talk "about something." Byrd said she did not explain over the telephone to Wright what "the something was," but did tell her that "my medication aide, my nurses aides and myself" were planning to leave. On cross-examination, Byrd indicated she told Wright that five employees-three nurses aides, Shirley Green and she-would be leaving unless Wright came right away. However, Byrd denied she planned to leave (although she agreed that she and Green had discussed the subject on discovering that the medication count was off) and said she told Wright that they would in order to "get her up there."' ° Wright told Byrd that she would 7 Medication aide Faye Johnson. who was called in to wo:k the 3 to 11 pm shift oti December 2, said she had occasion to pick up tra)ys served by the pres ious shift Johnson said l.ane brought up the subject of patient Roy's not being fed and stated Roy was not fed because she had just returned from the hospital ^ All the persons who testified were factual witnesses except for Hcnry Adams, an owner and administrator of a nursing home His expert testi- monly will be referred to in the analysis part of the Decisiotn, infra ' Byrd said she had told other employees that she was going toi call ai superior and that Randy Jurney, Rosland Deckard. and Hazel Whitiker ,were nearby when she placed the call to Wright Byrd said she conltinued to perform her duties while endeavoring It reach I ane--praying the throat of one patient. gis ing medication to another. and reordering mcdi- calions while waiting for the arrisal of Administrator Wright She stated that she took approximately eight rolon trays to patients and be- lieved that all patients had been fed that morning I' Byrd denied bringing up the subject oIf leasing during the brief tele- phone conversaltion She agreed that Wright had told her on the phone that she (Wright) ',xould be at the home later that day Byrd indicated. hosse\cr. that Wright as% not alas as ailaible c hen Wright was at the home and that she wanted to get things straightened out that mornilng The maui urgency of seeing Wright at the time. Byrd sild, wa;, the drug clunt l arni the prospect of a health inspectlni Bitrd denlied knoL wllg thg t iurss aiide Phillips .sa, trying to get t,. cook, Oil dlutS to lca;e or that anis cnplsees cere ill tact p ililiriig to le'ix,. 913 lItV('.I(SINS 0 I N A\ I IONIN I IA10)R I: A IONS I)AR D adl'te ill ahib l bot) Ilillllutts and did sll so hil I\. N ld ias ill lht' Iltediclatiou roo.I. A.ctording to IIN rd oan artis ini.g \'I-igilt toll her to ( tirlun o\l thlt ke- s lland "go." iByrd sid shi gi. tc ip l the kets hbilt llhat slit', alonig sith illedi- cationi aidle (ifet'tll, tollotcl WrIighlt into tilet' adilis'lla- tot's oilicet. Bird slated tihat shlet hearid 'right saly Io others. as \'right caiue oll of tile Ilientic oll 1r.o011o. "JLust go. go. getl out" B!trd testifild that she tried io e Xplnlin to W' right why she had called tile adillnistilior tha 1 leMoriiing, hbillt Ihill W'right responlded to the tieffect tlhat Byrdl Iladl been "til- protessionial" and could hx' responsible foir the loss ofl Ilic jobs of the nurses aides. Byrd said W'right told her she had a replacemellnt for 11.rd hut never said she was "firedl." Byrd stated that she signed her timecard and then wenllt to her car. I*unda, H'right. administrator of Leisure Lodge Nurs- ing Holme of Nacogdoches. also testified about the events that 'ccurred at the home on the morning of De- cember Z. Her sersion of the brief telephone conversa- tion sihe had with Charge Nurse Byrd was not too differ- ent fromi Byrd's. Wright said Byrd called her that morn- ing around 8:45 and told her "to come to the nursing home and take the keys. that she and her nursing staff swere about to leave." Wright said she asked Byrd what was wrong. but that Byrd replied that "there was no point in discussing it, that they were leaving." Wright said she called Nell Jurney. the nursing home's food su- penvisor. and asked her to come to the nursing home. Wright arrived at the nursing home around 9 a.m. She said she first saw Randy Jurney. who told her that "they are all about to leave." adding "Edna Phillips has been in there mouthing about it all morning." Wright testified that when she arrived patients' call lights were lit up "like a Christmas tree," food trays were sitting at the nurses' station, and employees were just standing around. She said she went to the medication room where she found Charge Nurse Byrd with the door ajar. She said she told Byrd: "Mary, I am here now. I will take the keys. You may go." Byrd handed Wright the keys, and Wright then slated lo employees assembled at the nurses' station: "All of you that have planned to walk out and leave these patients may go now." Employees began signing their timecards, but Shirley Green, the medica- tion aide who had been helping Byrd count the pills, told Wright: "I would like to talk to you and try to explain what happened." Wright said her response to Green was: "Shirley, you can talk to me, but my first concern is get- ting some people in here to take care of the patients." Byrd, Green, nurses aides Phillips, Deckard, and Whi- tiker, and housekeepers Chatman and Menifee left the home shortly after Wright arrived. " II Wright claimed that Phillips. Green, and Byrd acknowledgc{d tot her that each had said she was going to leave. hut I am nol persuaded that any of them made such a stalemenl to her Wrighl said P'hillip, offered to stay if a schedule change could he made hut then ilsisted that Wright sign her timecard. Wright said she asked Byrd to initial the timecards of others as Ihey left. Claiming Randy Jurney had told Wright "a hunch of lies" IlPhillips denied saying she had said she would walk out Ruhy tl)lvei and I) orotlhy Gates, the cooks on duly that molrnilig. how:ever, leslified credibly Ihilt I'hillips had indicated around 7 a m or later ill Ihle kitlhenl ;real hal ti s.e and others v ere plalnning to, leave Wrighl s;id she inlliedialtely no(ltied the State Depart- tnlt i o rI tlcall ill Austil ' of all eilergenicy situationl that x'isted al I .isilur I.oldge ;and tIhen undertook to take care of l the palienlls iIlt mlornlig with the help of others. She chliiled I'al no medication had beenl handed out that ilornling. Nell Jurncy, a trained medication aide, was as- signed thc task of dispeiising medications; Ruby Dove, a cook al work ill the kitchen, was reassigned to work as a ilnurses aide; an off-duty cook, Doris Torres, was called in to work in the kitchen; a nurse, Wanda Russell, was lo- caled arnd reported in and worked that day; Mary Ar- riola. a nurses aide, was also called in; and a Mrs. Allen, the daughter of a patient. assisted in answering calls and carrying trays. Wright said 20 new hot breakfasts were prepared and served to patients that morning after she arrived.12 Wright said she helped two patients who had been left sitting on bed pans without assistance. One of them was upset, she said, after overhearing employees telephone others and state that employees were leaving the nursing home. Wright said she personally gave a bath to a patient who had an "incontinent episode" that morning. Wright said she worked 15 hours on December 2. Much of it, she said, was "just trying to reassure the patients." Shirley Ann Green worked at Leisure Lodge for 2 years, first as a nurses aide and later as a medication aide, until December 2. She said she became upset that morn- ing on learning from Charge Nurse Byrd, shortly after the night charge nurse (Pace) left around 7:15 a.m., that the drug count on Lomotil was four or so short accord- ing to the "drug book." Green recalled that Mary Lane, the director of nursing, had said only 2 days earlier, when there had been a previous drug miscount (one pill over), that there should be no mistakes in the count of medications: "Two pink slips . . would mean out the door for us."": According to Green, Byrd undertook to call Lane without success. Green said Byrd then called Wright after consulting with Green. Green had dis- pensed 9 a.m. medications to about six patients located in corridors A, B, and C by the time Wright arrived. According to Green, Wright opened the door of the medication room where Byrd and Green were and asked Byrd for the keys. Wright told Byrd that she "could go" and then, while approaching employees located near the nurses' station, said, "Everybody can go." Wright kept repeating, according to Green, "all could leave." Green said she asked Wright what was going on and followed Wright into her office with Phillips and Byrd. Green said she told Wright that "we thought" the medication shortage could not wait, but Wright expressed a different opinion. 14 Wright thereafter gave Green's medication tray to Nell Jurney and told Green that she could leave. Green said she left, although she had "had no intention of walking out." 2 Wrtghl said thi;l Mrs, A lt'i filled ili ;i al i iiurses aide Ior 2 or hIlllrk i 111r1d l Illt.ie h ei lii t;l s IC e hoit it sslcn h'l I Ct' Nurc, i tlldI F1aie Jiolllloi said stie ss ;ais . lldl iil l hnt le di llff ti, Sork tt l3I tIo I I pa l ',lill "i ,tii () '1 ; sa lid i lle p ink slip, i; 11 11 ee 11le .I, \ hl. .111cr W4.Vilghl ( oxil nd sail ,on'lcillm g l Io n t ff clto u I "thlt , t1 hing 1 has golll hn, Ii11 i dl "]' lisl't I lIllk to .!""i l'lt a Iltillh.' 914 I IISlRIti LOI()Gi NURSIN(i HOME Ilousckeeper Ella Louise Chatrman testified that she re- ported on duty about 7 a.m. on December 2 and, after visiting for awhile in a patient's room, began to dust and prepare to mop the floor. She recalled when Administra- tor Wright arrived and the fact that Wright then told Charge Nurse Byrd to turn over the keys and leave. Chatman said Wright also turned to others standing nearby-Chatman, Deckard. and Green-and asked them to leave as she had replacements for each. ' Chatman said that there had been a lot of shouting by Phillips and Wright, which prompted the latter to take Phillips, Byrd, and Green inside the office and close the door. Chatman testified that prior to Wright's arrival Phillips had stated there was going to be a meeting and that a patient's relative (Mrs. Allen) who was in the nursing home at the time inquired of her whether she was plan- ning to leave. Chatman responded she "really didn't know what she was talking about." Chatman stated that Hazel Whitiker left with others, but Chatman could not recall where Whitikier was when Wright told the employees to leave. According to Chat- man, Wright indicated to her and others leaving that it would be pointless to look for unemployment compensa- tion or a job at another nursing home. Rosland Deckard said she was dismissed on December 2 after working as a nurses aide at Leisure Lodge for about a year and a half. Deckard said she arrived on time around 7 a.m. that day and delivered a feeder tray to one patient, a Mrs. Gilbert, whom she found "laying in dried BM." Deckard said she cleaned the patient and then found there were no more feeder trays to deliver.' 6 She then began giving baths and making beds. Deckard recalled encountering Charge Nurse Byrd, who told her that she (Byrd) was going to be calling Wright in order to have a meeting that morning about problems that had been encountered. 7 Deckard said she, Phillips, Chat- man, and Randy Jurney had stood nearby while Byrd placed the call. After the telephone conversation Deck- ard took an elderly patient, a Mrs. Brennan, to a shower room and undressed her in preparation for giving her a shower. Deckard then left the shower room to get some towels (admittedly "against regulations") and discovered that Wright was arriving. According to Deckard, Wright pushed the nurses' station door open, threw her purse on the desk, and announced: "Well, I am here. You gave me 30 minutes to get here, so just go, get out." Deckard said Wright spoke in a loud voice about the fact that it was "unprofessional" to speak around patients and then conferred with Phillips, Green, and Byrd in Wright's office. Deckard said Phillips told Wright, also in a loud voice as they entered the office, "[S]he didn't s Chatman denied on cross-examinaiion that Wright had indicated that only those who planned to leave should go la I find Deckard a reliable witness. although there was some differ- ence between her testimony and an affidavit she signed She had indicat- ed in her affidavit that she had fed more than one patient on December 2 She later concluded that she must have fed only one. She felt certain no trays were left at the nurses' station but agreed that there were several undelivered trays in the dining room that morning. - Deckard denied hearing Phillips say over the phone, "Tell Wanda if she is not up here in 30 minutes. we are going to leave." Deckard said Phillips did say. right after the conversation, "something like" they could all walk off if Wright did not want to listen or if Wright did not arrive in 30 minutes. listen to anything that anybody had to say." According to Deckard, when Byrd came out, Deckard and Byrd signed their timecards and left. Deckard agreed on cross- examination that Wright had not told her that she was fired, but added: "Well, lea\ving is the same thing to me, it was fired, you know, get, go, get out of my place." Deckard agreed that a number of employees had congre- gated around the nurses' station when Wright arrived at the home that morning. Ednu E. Phillipx had sworked as a housekeeper at Lei- sure Lodge but was employed as a nurses aide on De- cember 2, her last day of work there. Phillips said she was on the job at 7 a.m. that day; she fed four feeder patients that morning and helped Charge Nurse Byrd de- liver trays to other patients in their rooms. She testified that she found a patient named Stern, who could not stand alone and was usually in a restraint, standing in the nude with his "Foley catheter tore loose from him hang- ing on the floor." Phillips said she and Byrd dressed him. "restrained him down," and took him into the lobby in a wheelchair. Phillips testified that while in Stern's room she told Byrd that she was "very upset" and that "we have got to do something about this." Shortly thereafter Byrd told Phillips that she had tried unsuccessfully to reach the director of nursing and that she was going to contact Administrator Wright. Phillips said she tried to discourage Byrd from calling Wright at the time but that Byrd insisted on having a meeting "right now."-s Phillips said she distributed ice to some patients and was preparing to bathe a patient when she learned Wright had arrived. Phillips stated that she saw Byrd and Green go with Wright into the administrator's office and she "followed them in." Byrd took her purse and left, as Wright told her to: Green then tried to "get Wright calmed down." Phillips said she asked what it was all about, but Wright would not respond. Phillips testified: . . .She told me to get out, "Get out now," and I told Mrs. Wright that I was not going to get out, that this was my job and she would have to fire me. that I was to take care of the patients and Mrs. Wright said, "I'm not going to fire you, but you are getting out." I said, "Well, I'm not getting out until you sign my card." She told me she was not going to sign my card and I said, "Yes, you was." We got in an argument like that right there and she did sign my card and she told me to tell the other girls she would sign theirs. Shirley Green went in there with her card and she was the last one I remember in the office. Phillips said Randy Jurney followed her out as she was leaving, and she turned to ask him why he had told lies to Wright. Phillips said: . I . Mrs. Wright said that Randy had come in there and told her that-this is Randy Jurney-told '* Phillip. claimed that she told Hyrd befhirc s he called to wait until Monday and have a meeilng then She testified "i told her Mrs \'righi 'would not listen to her. if she ,;ime (ut here v c might all have to go" DECISIONS OF NATIONAL LABOR RELATIONS BOARD her that [I] was involved with a bunch of the others; that I had said if things hadn't been straight- ened out that I was going to leave, which I did not say that I was going to leave. Phillips agreed on cross-examination that there had been talk during the week preceding December 2 that she as well as other employees, including Nell Jurney and Byrd, would be quitting "if Mrs. Wright could not straighten up the building.""' Randy Jurney, a 17-year-old high school senior and son of Nell Jurney, the food supervisor at Leisure Lodge, was called as Respondent's first witness. He worked at the nursing home on a part-time basis doing "mainte- nance and clean-up." He said he arrived at the nursing home between 5 and 5:30 on the morning of December 2. He said he planned to work until noon or I p.m. that day sweeping, mopping, and buffing floors but stayed until around 4 or 4:30 p.m. According to Randy, the day shift, identified as Phil- lips, Byrd, Green, Deckard, Whitiker, Chatman, and "the new housekeeper," gathered at the nurses' station about 15 minutes after 7 ("because none of them ever got there right at seven," he said) and talked about the staff meet- ing that had taken place on the previous day. 2 0 Byrd and Phillips, he said, did most of the talking and "were mad because . . . I guess Wanda had give all the credit, they thought, to the 3:00 to 11:00 bunch for the work that got done." Phillips, he said, "was wanting to not do nothing that day and see who would get the credit then." According to Randy, Phillips asked him if he would walk out "if they was to leave," but he said he told her "no" because he had not been at the staff meet- ing. 21 Randy testified that Phillips had told him that morning that she had spoken with the kitchen help about leaving, but that they had said that they would not. Randy also stated that Phillips had told a patient (Mrs. Lee) that credit was not being properly given for work done, causing the patient to be "shook up" and to cry. 19 Phillips indicated that a number of employees were unhappy with Mary Lane, who had recently taken over the position of director of nurs- ing. Phillips indicated that she thought she was doing more than her share of the work at the home. 20 Randy portrayed himself as a conscientious worker in the midst of lazy, rebellious employees According to him, the 7 a m. shirt passed out no medications and served no food to patients in their rooms. "There didn't nobody do nothing." he asserted He was not reluctant to testify on matters about which I believe he had little or no information (even though he claimed to be "pretty well up there all morning" around the nurses' station cleaning up the area). He thought patient Stern was near the nurses' station at 7 a.m. but it is clear that Phillips (with Byrd's help) did not get him dressed and out into the lobby until sometime later On cross-examination Randy claimed he took a 15-minute break between 7 and 7:30 a m. and stood around the nurses' station. He was critical of his fellow workers, especially Phillips I consider much of his testimony to lack credibility, although it is apparent that his superior. Administrator Wright (with whsom he was once related and whose testimony he sought to support), placed much reliance on what he had told her that morninig when she arrived at the home. He denied that he spoke to Phillips as she left the nursing home on December 2, but I believe he uttered the ob- scenity Phillips attributed to him Chatman. a reliable witness, also testi- fled that there was a collsersation between Phillips and Randy as Phillips left the home :1 But Deckard testified credibly that Randy had stated that morninig, "We should all go home." Randy testified that Byrd and Phillips decided to call (with "a few lights on" because patients were wanting medication) and that he heard Byrd say over the phone "that they would leave the keys in the Medication Room" if Wright did not arrive in 30 minutes. 2 2 Randy also said that he believed Byrd had said everybody was leaving but he recalled that only Phillips and Byrd had mentioned leaving. Randy said he was in the lobby or going out the door to get his mother (who had called for him to come and pick her up) as Wright arrived. He testified: When she come in the door she asked me what was going on and I told her and she said, "Who is talking about leaving the most?" And I said, "Edna was the one that got it started," and as she walked on to the Nurses' Station, I stopped to see what she was going to do. She told them that she was here and they could give her the keys and that they could go.2 3 Dorothy Gates testified that she and Ruby Dove went to work in the kitchen before 6 a.m. on December 2. She said Dove started serving food trays at 7 a.m. because there was no one available to deliver them. According to Gates, Phillips came in later and complained that the "3:00 to 11:00 bunch was getting the credit" for the day shift's work and "we are walking out." Phillips then left with a tray. On her return, Phillips announced that "we are going to call Wanda" and stated that she would carry no more trays until Wright arrived. Gates also tes- tified that Charge Nurse Byrd also had told her and Dove in the kitchen that "I am going to call Wanda be- cause we are going to walk out," adding, "we all have got to stick together." According to Gates, approximately 12 trays sat on two carts in the dining room "ready to go" but were later dumped, along with others, because they got cold. She said that she and Doris Torres, another cook who was called in, then "refixed" 15 or 20 breakfasts for patients. Ruby Dove testified that on the morning of December 2 she served the food trays to patients eating in the dining room after Gates had prepared them. Dove said the "nurse and aides" were supposed to serve in the dining room but they did not do so that morning. Ac- cording to Dove, 12 trays of food, intended for room pa- tients were left on a cart that morning and had to be dumped. Dove stated that Edna Phillips had come to the kitchen door at 7 a.m. that morning and "told us if we had anything to say, say it. because they was walking out." Vell Jurney was brought to the nursing home by her son, Randy, sometime after 9 a.m. She said she had been '2' Raidy said he heard Phillip, tell Byrd "Ito call Wanllda anld tell her Ihat they was going to leave." " Randy testified (tt cross-examit atiotn that Wright had said (ill ords sirmilar to those used h) Wright) to) Byrd that the emnploees " wantiring to leave'" could go I am inot persuaded that she qualified her testintllts iml that mallnier Alleged discritiliatees testified creadibly that W 4 right indicat- ed that all of the nurses aides auld holusekeeping staff on, dult) that niori- ing sIhould leave 916 LEISURE LODGE NURSING HOME called by Administrator Wright earlier that morning and told to come to the home as quickly as possible. Mrs. Jurney said she found 8 to 10 unserved breakfast trays sitting at the nurses' station and 10 others sitting on carts in the kitchen. She said she called Doris Torres to work as a cook and reassigned Ruby Dove to work on the floor as an aide. She estimated that as many as 20 breakfasts were served after she arrived. A total of 12 to 15 patients' call lights were on, she said. Mrs. Jurney said the 9 a.m. medications had been prepared, but none had been dispensed.2 4 She said she served, with the help of Wanda Russell (a charge nurse that had been called in), medications to 12 patients and identified medication rec- ords reflecting that fact. Mrs. Jurney said she encountered an undressed female patient, Mrs. Brennan, sitting in the central bath with a male patient, a Mr. Moody-"a violation of the patient's rights," she asserted. She said Moody had a sheet around him but added that he was covered with "BM from head to toe." Mrs. Jurney also stated that she found a stroke victim, a Mrs. Sharp, sitting on a bedside commode (re- portedly for an hour) and a wheelchair patient, Mrs. Suell, sitting in the lobby with "urine all over the floor" nearby. Analysis The General Counsel contends that Wright unlawfully discharged the seven discriminatees for engaging in con- certed activities-i.e., "in attempting to address prob- lems" at the Leisure Lodge Nursing Home. Respondent contends that the seven employees voluntarily resigned their employment on December 2 because of their dissat- isfaction "with the Director of Nursing or some other condition of the facility." Respondent also advances two alternative arguments: First. that, even if the alleged dis- criminatees did not voluntarily resign and were engaged in concerted activities, their refusal to provide adequate care to patients "during a critical two-hour period" justi- fied their permanent replacement as economic strikers; and, secondly, the seven alleged discriminatees were en- gaged in an illegal partial strike or slowdown for which they gave no 10-day notice under Section 8(g) of the Act. Respondent's second alternative argument must be re- jected in the light of the Board's decision in Walker Methodist Residence and Health Care Center, Inc., 227 NLRB 1630 (1977), holding that Section 8(g), which was added to the Act by the 1974 health care amendments, applies only when a labor organization is involved. Re- spondent's employees were not organized as was the case in Walker Methodist. The Board held in that case, after examining the legislative history of the amendments, that in enacting Section 8(g) of the Act Congress only intend- ed to place "a duty on labor organizations to give notice before striking."2 5 24 Mrs Jurney testified that Wright gave her the medication tray and that she did not recall seeing Green that day Mrs. Jurney agreed that one medication aide should not dispense medications prepared by another but on that day she was authorized to do so by the adminislrator She denied that medications had been dispensed in halls A. B. and C: she said she dispensed medications in those halls herself ' Sec 8(g) of the Act, in pertinent part reads: Respondent's first argument, that the seven employees xvoluntarily resigned their employment, must also be re- jected. It is clear from the record that two of Respond- ent's employees, Charge Nurse Mary Byrd and nurses' aide Edna Phillips, had indicated on the morning of De- cember 2 that they and other members of the day (7 a.m. to 3 p.m.) nursing and housekeeping staffs would leave in a short time (i.e., in 30 minutes) if not given an opportu- nity to meet with the nursing home's administrator. Byrd conceded she told Administrator Wright, in response to a question asked by Wright, that she was planning to leave. She credibly testified, however, that she did not intend to leave and responded to Wright as she did only to convince Wright that the latter should come to the nursing home that morning and meet with the employ- ees. I reject Phillips' claim that she had not said prior to Wright's arrival that she planned to leave the nursing home; she may well have intended to leave but in no event would she have left before the lapse of the 30- minute time period given to Wright to appear and meet with the employees at the home that morning. Granted the problems which Byrd, Phillips, and Green, 26 en- countered that morning were not as serious as they be- lieved them to be,27 it was no doubt presumptuous of Byrd to call and insist upon a meeting to discuss them on such short notice. What is critical here, as far as Re- spondent's first argument is concerned, however, is that Byrd and Phillips (and all of the other alleged discrimin- atees) remained at the nursing home and on duty until Wright arrived; she then made a mass discharge of the entire day nursing and housekeeping staffs. Under the circumstances, it cannot be persuasively argued that even Byrd and Phillips voluntarily quit or resigned their posi- tions. There is even less of a basis, on this record, for contending that any of the other alleged discriminatees quit or intended to leave the nursing home that morning. Ella Chatman testified that Phillips said there was going to be a meeting, but she was obviously confused and unprepared by the question propounded her that morning by Mrs. Allen, the daughter of a patient in the home: "Are you leaving?" Chatman "really didn't know what she was talking about." Rosland Deckard "was amazed" to hear Wright tell the day nursing and house- keeping staffs to "get out" as Deckard understood A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of Ihal intention . . The Board also held in Walker fethodist that the loss-of-status sanc- lions of Sec 8(d) did not apply in such a situation See also Long Beach Youth (enter. Inc.. a/k/a Long Beach Youth Home (formerly Trailbaok. Inc ), 230 NLRB 648 (1977). enfd 591 F.2d 1276 (9th Cir 1979), and 'Mercy Hospital 4s.rsociation. Inc.. 235 NLRB 681 (1978). both cited by Re- spondent The cases which Respondent cites on unprotected partial strike or slowdown activity are discussed, infra. 2" Byrd testified that Shirley Green had said in discussing the short drug count that she would leave if she were to gelt a "pink slip " B rd added. however. Ihat there was no plan to lease. Green. a credible lt- nes,, denied that she had planned to lease that morning and denied ever telling Administrator Wright that she would 27On tie other hand. Respondenl understates them by characterizing them a, "trimial proclaimned matters of the miinor drug shortage, one unrc- strained patient landl the condition of the hbuilding " 917 DECISIONS OF NATIONAL LAB()R RELATIONS 13()ARD Wright was only coming to the nursing home that morn- ing to meet with the employees. Shirley Green was "very upset" over the drug count and was aware that Charge Nurse Byrd was trying to ar- range a meeting with a superior but was confused at the action taken by Wright on the latter's arrival. "I really don't know what she meant, but she said, "Everybody can go." Green asked Wright, "What was wrong and what was going on." She tried in vain to explain why she believed Byrd had asked for a meeting that morning. Green's statement on cross-examination that she had not planned to leave was persuasive. 28 Thus, I find none of the alleged discriminatees re- signed or quit. I also reject Respondent's only other argument-that the refusal or failure of the members of the day nursing and housekeeping staffs to provide adequate patient care during a "critical two-hour period" justified Respondent in replacing them as economic strikers. Respondent con- cedes, as it must, that Byrd's call to Administrator Wright for a meeting to discuss problems at the home was a form of protected concerted activity. Even if there had been an "instant work stoppage" on the part of the staff as Respondent claims, such activity on the part of the employees would have had the protection of the Act. Such activity would have a lawful objective; and all em- ployee activity at the nursing home that morning was peaceful. In Walker Methodist, supra, the Board stated (227 NLRB at 1632): It is clearly established that a concerted work stoppage for the purpose of presenting a grievance is protected Section 7 activity.'" The grievance need not ultimately be found to be meritorious, so long as the employees genuinely believed that it was a valid grievance.12 Therefore, the conduct . . . is protected activity unless it is specifically found to be excluded from the coverage of Section 7 as is the case with conduct that is unlawful, vio- lent, in breach of contract, or indefensible.' 3 dV NL.R.B. v Washington Aluminum Co., 370 US. 9. 14-16 (1962). 12 FThe Maosoni and Eastern Star Home of the District of Colum- bia. 206 NLRB 789, 790 (1973). ": N.L.R.B. v, Washington Aluminum Co.. supra. In the cases decided to date, the Board has not held work stoppages against health care institutions to be outside the protection of Section 7. Rather, it has determined that it will apply the same standards of conduct to health care institutions as to other en- terprises. 14 For example, in The Masonic Home, 5 a group of employees of a nursing home refused to begin their shift until a representative of the em- ployer met with them to discuss their grievances. The Board held that the employer violated Section 8(a)(1) and (3) by discharging them for engaging in that protected conduct. An 8(a)(l) violation was also found where a group of nurses aides was dis- Z" TI i, of the alleged discrinminlates, Hl/,el Whitiker iiand Marilrl Menifec (McI.onldenl) waere lot called as tiltnesses. charged for walking off the job because their em- ployer refused to meet with them to discuss their grievances. 1 6 In contrast to the brief half-hour work stoppage which occurred in the instant case, that case involved a walkout by all of the nurses aides for a full shift. This case fits squarely within the principles of the above cases. Accordingly, we find that the Respondent violated Section 8(a)(1) by discharging employees for engaging in protected concerted activity. 4 [heS Masonic tome. supra at 790; Dan Lipman. Norman Rut- tenhbrg. and .4be Goldstein. a Partnership. d/b/a Ascot AVurving Centre. 215 NLRB 680 (1975). I' Supra, fn. 12. The Masoni flome involved a work stoppage by employees who were represented by a certified union: there- fore, that case would have been decided differently had it occurred after the effective date of the 1974 Health Care Amendments. It is cited here only for the proposition Ihat, absent Sec 8(g). such con- ducl againsl a health care institution is protected concerted activi- it A cot A'ursing Centre, supra As the above quotation indicates, concerted activity is not always protected, but this record does not suggest that any of the alleged discriminatees conducted herself in an "indefensible" 2 9 manner so as to forfeit the protec- tion of the Act. The day nursing and housekeeping staffs may not have carried out their duties in the most noble fashion on the morning of December 2, but the record does not establish, as Respondent asserts, that "the entire 7 a.m. to 3 p.m. shift deliberately neglected patient care for a critical two hour period." Nor does it establish, as Respondent contends, that "these employees had foment- ed a crises [sic] in allowing patient care to deteriorate." Careful review of the evidence persuades me that the General Counsel's version of what happened at the nurs- ing home on the morning of December 2 is more correct than the one advanced by Respondent. As previously in- dicated, I find there was no intent on the part of Green, Chatman, Deckard, Whitiker, or Menifee to leave the nursing home that morning; there is no persuasive evi- dence that any of these persons indicated that they would do so. I find Byrd did not intend to leave. Also, while Byrd and Phillips had indicated they would leave, they did not do so before the arrival of Administrator Wright. Byrd, Phillips, and the other alleged discrimina- tees, had they desired to do so, were entitled to present grievances to Wright or other superiors of Respondent without the loss of the Act's protection. While under- standably irritated by Byrd's early Saturday morning telephone call advising that the 7 a.m. shift would be leaving in 30 minutes unless Wright should appear at the nursing home within that time, Wright clearly overreact- ed in making a mass discharge of the day nursing and housekeeping staffs. I also find that she did not state, as she claimed, that she told only those employees to leave who were intending to walk out. I find that Wright ter- "' In El Lumber Co.. 91 NLRB 333, 337 (1950). the Board indicated that the test of whether employees are protecied depends on "heiher the particular activity invol'ed is so indefenisible as to warrant the em- ployer in discharging the participating employees." The Board added: "Either an unlawful objetlive or the adoption of improper means of iachieving it may deprive employees engaged in colncered activities of the protectilon of the At." '918 91( minated all of the alleged discriminatecs because they were altempting to address grievances or because she thloug/l Ithey were:"' Respondent relies heavily on the testimony of Randy Jurney as proof of patient neglect. hut I do not find his testimony in this regard to be reliable. His testimony, while somewhal general in nature, contained inconsistent statements. He impressed me as biased against the alleged discriminatecs. I reject his testimony to the effect that the nursing and housekeeping staffs did virtually no work on the morning of December 2. Green had spent considerable time preparing medications that morning and had dispensed them to six or so patients in rooms along hallways A, B, and C before Wright arrived. I reject the testimony of Nell Jurney and Administrator Wright that no medications had been dispensed prior to their arrival. Obviously, Green had not made a record of which patients had received medications, but such proce- dure was not unusual at the home. Mrs. Jurney testified that the medication sheets were not signed (i.e., initialed) until after the medications were distributed. Employees did congregate on occasion near the nurses' station and talked that morning, but there had been no meeting. While some members of the day shift may not have per- formed their duties as expeditiously as they should have that morning, they continued to perform their tasks. : ' Charge Nurse Byrd, a persuasive witness, was obvi- ously occupied with her duties between her arrival at 7 and Wright's arrival around 9 a.m. While she took time trying to reach a superior to arrange for an employees' meeting to discuss what she considered to be serious problems at the home, she was involved in the counting and reordering of medications as well as the feeding and taking care of patients. With the help of Phillips, Byrd had spent time dressing Mr. Stern, who had to be re- strained in a wheelchair. Deckard testified credibly that she had fed one patient (found lying in "dried BM") and then undertook to make beds and bathe other patients. She freely acknowledged that she left Mrs. Brennan alone in a bath area contrary to regulations and then forgot about the patient in the confusion that occurred after Wright arrived. Nurses aide Phillips, the most vocal of the alleged discriminatees, performed some work that morning. I do not accept all of her statements, 3 2 but I do credit Phillips' testimony to the effect that she served food and ice to several patients. She also spent time with :") If any of the seven alleged discriminatee* were not aware of Byrd'% telephone call to Wright or the proposed meeting with Wright. they were still protected by the Act Wright believed the)y were engaged in activily that was protected, and their discharge was nevertheless unlaw- ful under Sec. 8(aXl I) of he Act It Is apparent from Ihe testimony of Ella Chatman. a reliahle witnes, if not an energetic employee. that she accomplished little after arriving at the nursing home on the morning of December 2 She and Randy Jurney spent some of the time between 7 am and 9 a m that morning watching television and visiting in patients' rooms. :t I reject P hillips' testimony to the effecl that she was not with Byrd when Byrd called Wright II was %he who did most of the talking abhou leaving that morning. I reject her as.ertion that she tried to discourage Byrd from calling Wright I am also unable to credit PIhillip' claim loser the contrary testimony of the defenelr wiitnlese\ tht;l she did IlIt talk to a patient (Mr, I ee) or the cookl, before Wrighl', arria l ahoul the pos)ihil- ity of walking out Mr. Stern after he was found in the nude without his catheter or any restraint. There is no doubt that several patients had not been fed when Wright arrived. There were other patient needs that had been neglected. But Respondent over- looks the fact that much of the patient neglect could have been ameliorated had Wright not elected to dis- charge the entire nursing and housekeeping staffs on duty that morning."" Further, as a result, some patients may have been given double doses of medications, and some patients may have been served two breakfasts. Thus, I do not find that the day nursing and house- keeping staffs had allowed a crisis to develop to a point where Respondent was justified in discharging employ- ees in order to protect the health and safety of patients in accord with any state or Federal law. Respondent did not establish such fact. Noncompliance with every health standard-such as by failing to serve breakfast to a pa- tient within 14 hours of the prior evening meal or by failing to accord "dignity" and "privacy" to a patient- does not, ipso facto, remove nursing home employees from the protection of the Act and authorize their termi- nation. Expert Adams pointed out that medication need not be dispensed at a precise time, within limits of course. On the other hand, allowing a patient to sit unat- tended on a commode for an hour or so surely is not an acceptable practice. And, unquestionably, telling a pa- tient that the staff is leaving could be an "abuse." as Adams noted, depending upon the condition of the pa- tient. But a determination that there has been patient neglect is not easily made, even by an expert and especially in the abstract. As Adams testified: . . . Your description of a patient regarding urine around the chair, I would have to have been there to have seen whether or not this happened within five minutes or an hour. I can make no comment on this because if it is something that happened very recently, then this is considered the normal routine, to get to the patient and clean them up. But if the patient had been sitting there for an hour or two, that is not keeping the patient clean and comfort- able. 34 : The case the General Counsel presented here is stronger than the one he presented in V.%lrcy Hospital Asiciation, supra In that case the head nurse and administrator would not meet with the nurses aides, but the aides had walked off the floor. :'a Mr Adams had considerable training and experience in the oper- ation of nursing homes. but the relevance of much of his testimony was not demonstrated He was not familiar with the situalion as it existed be- Iwcen 7 and 9 a m or so on December 2 except as suggested in hylo- thetical question, propounded him. Such questions a,,umcd some facts and inferences that were not established by prohative evidence For ex- ample, most of the medications that morning need not he dispensed until 9 a m . although Shirley Green had distributed some Man) call light, were on around 9 a m . but it wvas not established whether any of them signaled an, emergency. a point Adams considered significant The fol- tos illg reponll of the expert v. as of little value Q Assume that the period of time that the neglect had spanned v as from 7 a m iin the mornling until approsimalelN 9 am in the nlorlllng A There Is re.aoI i lssulnl thil there could hare beei sonme lne- glect. yes I FISURF LODGF NURSIN(i HONIF DIECISIONS O() NAI()ONAL I AB()R RELATIONS B13()ARD Respondent cites Elk Lumber Co.. vupra, in support of its position that the alleged discriminatees were engaged in an unprotected partial strike or slowdown activity. The case is inapposite. In that case, carloaders had decid- ed among themselves to decrease their production to anll amount equal to what they considered proper for the amount of pay they were receiving from their employer. The Hoard found such activity to be unprotected. :Y5 The alleged discriminatees here did not undertake to prescribe the terms upon which each would work. There was no attempt here to disobey the employer's directions as in Elk Lumber or as in N.L.R.B. v. Montgomery Ward & Co., 157 F.2d 486 (8th Cir. 1946), another case cited by Respondent. In Montgomery Ward the employer had discharged certain union members for refusing to process orders transferred from another office which was on strike. The court stated (157 F.2d at 496): While these employees had the undoubted right to go on a strike and quit their employment, they could not continue to work and remain at their po- sitions, accept the wages paid to them, and at the same time select what part of their allotted tasks they cared to perform of their own volition, or refuse openly or secretly, to the employer's damage, to do other work.3 6 Based on the foregoing, I enter the following: CONCI USIONS OF LAW I. Leisure Lodge Nursing Home is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and is a health care institution within the meaning of Section 2(14) of the Act. 2. Mary E. Byrd, Edna Phillips, Ella Chatman, Ros- land Deckard, Shirley Green, Hazel J. Whitiker, and Marilyn Menifee (McLonden) were discharged by Re- spondent's administrator because Byrd had asked for a meeting to discuss grievances relating to working condi- tions and because the administrator believed such named employees were engaged in a work stoppage. 3. The discharge of such employees interfered with, restrained, and coerced Respondent's employees in the exercise of the rights guaranteed them in Section 7 of the Act, involving unfair labor practices within the meaning of Section 8(a)(l) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- '' The Board in that case stated (91 NLRB at 331) We are aware of no law or logic that gives the employee the right to work upon terms prescribed solely by him That is plainly what was sought to be done in this instance It is not a situation in which employees ceased work in protest against conditions imposed by the employer. but one in which the emploees sought and intended to work upon their ow1 inotit)on of the terms which should prevail :" Cluiivi Prloduttl Colrporutiion, 226 NL RB 170 (1976). another case cited by Respondent. is similair to Elk Lumnber and Moliltgolnerrv 4ird ailld is also ina;pposi I that csaw the Admiiistratlie I;las Judge f ulid the discharge of anl enmphl)yc (I enel) lawful because ihe had slowed his swork down and failed to achieve the nrmanl standard or perfiornmalce signed to effectuate the policies of the Act. I shall rec- ommend that Respondent offer to each of the seven em- ployees unlawfully discharged immediate and full rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or other rights or privi- leges previously enjoyed, and make her whole for any earnings lost, plus interest.3 7 Backpay shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 8 The Respondent, Leisure Lodge Nursing Home, Na- cogdoches, Texas, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from discharging or in any like or related manner interfering with, restraining, or coercing employees because they engage in concerted activity for their mutual aid and protection, including, but not limit- ed to, the requesting of a meeting to discuss grievances and the stopping of work in support of such grievances. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Mary Byrd, Edna Phillips, Ella Chatman, Rosland Deckard, Shirley Green, Hazel J. Whitiker, and Marilyn Menifee (McLonden) immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights or privileges previ- ously enjoyed, and make them whole for any loss of earnings they may have suffered by reason of their un- lawful discharges in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its nursing home in Nacogdoches, Texas, copies of the attached notice marked "Appendix."3 9 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- :" The General Counsel's request that 9-percent interest be paid on the backpay is being denied as the Board has not approved such rate. :' In the event nol 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 becime its findings, ctnclusions, and Order. and all objections thereto shall hbe deemed waived for all purposes. ;" In Ihe cVenl thal this Order is enforced by a Judgment of the lniled States Colurt of Appeals. the words im the nlotlce reading "Posted by ()rder of the Naltionalll I abor Relatioils HBaird" shall read Postled 'ur- suallt to a Judgment of the Liitled States Court of Appeals En IIfircing an Order of the Nationdal I iahbor Reltions Boaird 920 .E ISL!RE I ())(it N.URSIN(; HO()MNI cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEFS POSTED BY ORDER OF THE NATIONAL LABOR RELATroNs BOARD An Agency of the United States Government WE WILL. NOT interfere with, restrain, or coerce our employees in the exercise of their right to re- quest a meeting to discuss grievances or to engage in concerted work stoppages or other concerted ac- tivities for the purpose of mutual aid or protection by discharging or by taking other reprisals against any employees who engage in any such activities. WI will NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act, as amended. WI WIt L offer Mary E. Byrd, Edna Phillips, Ella Chatman, Rosland Deckard, Shirley Green, Hazel J. Whitiker, and Marilyn Menifee (McLon- den) immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges previously enjoyed, and 'E Wl.l i make them whole, with interest, for any loss of earnings they may have suffered by reason of their unlawful dis- charges. LEISURf LODGE NURSING HOMI q21