Little Flower Nursing Home

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 687 (N.L.R.B. 1969)

LITTLE FLOWER NURSING HOME
Little Flower Nuksifg Home and Isola `Fowler. Case
14-CA-4785
April 29, 1969
DECISION AND ORDER
BY MEMBER$,FANNING, BROWN, AND ZAGORIA
On January 28, 1969, Trial Examiner Milton
Janus issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in .and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner' s Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor ' Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the.-hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in'this case, and hereby adopts the
findings,' conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act,- a5 amended, the National Labor
Relations Board--hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Little Flower Nursing
Home, St. Louis, Missouri , its officers , agents,
successors , and assigns , shall take the action set.
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner : A charge and an
amended charge were filed by Isola Fowler o11 August 16,
'In the last paragraph of his Concluding Findings , the Tnal Examiner
inadvertently referred to Cook,, when he meant employee Fowler. We
hereby correct the inadvertence.
The Respondent excepts to- the'Trial Examiner's credibility resolutions,
and alleges procedural irregularities . It is the Board's established policy,
however, not to overrule a Trial Examiner's resolutions as to credibility
unless, as is not the case here , the, preponderance of all the relevant
evidence convinces qs .that they, are incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We find no
support in the record `for the allegation of procedural irregularities.
687
and October 8, 1968, respectively, against Little Flower
Nursing Home , and a complaint based thereon was issued
by the Regional Director for Region 14 on October 11,
1968. The complaint alleges that the Respondent, referred
to at times as the Home, interfered with, restrained and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and discharged Isola
Fowler and Carrie Dyess because they had engaged in
concerted or union activities. On October 24, 1968,
Respondent filed its answer to the complaint, denying its
material allegations . It also filed a motion to sever the
proceedings of the two alleged discriminatees on the
ground that there was nothing substantially in common
between their claims. The motion to sever was -denied by
Trial Examiner Schneider on November 1.
At the opening of the hearing, I admitted as
Respondent's Exhibit 1, a motion to dismiss the complaint
because it denied and abridged to Respondent its
guarantee of free speech under the First Amendment to
the Constitution; and as Respondent's Exhibit 2, a motion
for jury trial based on the contention that the amount in
dispute is in excess of $20, is based on a common law
action, and is therefore governed by the Seventh
Amendment to the Constitution. I denied both motions at
the hearing, and reaffirm my rulings now.'
I conducted a hearing in this matter at St. Louis,
Missouri, on November 20 and 21, 1968. A brief has been
received from the General Counsel which has been fully
considered.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTIONAL FACTS
Respondent is a Missouri corporation with its principal
office and place of business at St. Louis, Missouri, where
it provides nursing care and related services to patients.
During a representative 12-month period preceding the
issuance of the complaint , it received gross revenues in
excess of $100,000, and during the same period purchased
goods and materials valued in excess of $15,000 which
were delivered to it by other enterprises located in the
State of Missouri which had in turn received them directly
from points outside that State. I find that the Respondent
is an employer engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
St. Louis Local Joint Executive Board of Hotel and
Restaurant Employees & Bartenders International Union,
AFL-CIO, is a labor organization within the meaning of
the Act.
'Respondent's motions revive arguments as to the unconstitutionality of
the Act which one would think had been laid to eternal rest more than 30
years ago . As to the free speech guarantee, see Thomas v. Collins, 323
U.S. 516 at 537-8; as to the jury trial argument, see N.L.R.B. v. Jones &
Laughlin Steel Corporation, 301 U.S. 1 at 48.
175 NLRB No. 106
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Background Facts
All the events in this case took place in June 1968.
Early that month , a campaign to organize and represent
the employees of the Home was instituted by the St. Louis
Local Joint Executive Board of the Hotel and Restaurant
Employees International Union.' This case involves
certain statements and inquiries directed to employee Isola
Fowler by Mary McCluskey, administrator of the Home,
during a few days in the first part of June, alleged to be
violative of Section 8(a)(1), and the subsequent discharge
on June 29, of Isola Fowler and Carrie Dyess, allegedly
for exercising their right to engage in concerted or union
activity.
Fowler had been employed as a nurse 's assistant at the
Home from March to November 1966, when she left
because of pregnancy. She was then rehired in August
1967 and continued to work there until her termination at
the end of June 1968. Dyess had been employed as a
nurse' s aide , apparently a less responsible position than
that of nurse' s assistant , for about a week before her
discharge.
Interference, Restraint, and Coercion
Fowler was by all accounts an able, above average
employee, well regarded by her immediate supervisor,
Nurse Gilligan , and the Home ' s administrator, Mary
McCluskey, who is also a registered nurse. Fowler worked
on the 11 p.m. to 7 a.m. shift, 5 nights per week. In April
1968, McCluskey had set her workweek as Monday
through Friday, allowing her to have all her weekends off,
a privilege apparently not accorded to other nurse's
assistants, in order to allow Fowler to further her
education. McCluskey had also lent her $100 recently
because of a personal emergency, which Fowler was
paying back in installments.
Fowler's testimony with regard to the conversations
between herself and McCluskey as to the Union's
organizing campaign is as follows:
About June 1, Fowler and other employees were leaving
the Home to meet two union representatives who were
waiting for them at a fence at the back of the property.
McCluskey who was then coming through the gate, saw
her and asked if she had signed a card. Fowler asked her
what card she meant , but McCluskey said nothing else.
As Fowler and the other employees approached the union
representatives, McCluskey shouted out "Why don't you
have a party." They then went around the corner to the
front of the Home where one of the women had her car
parked. They all signed and returned union cards to the
representatives . McCluskey kept coming to the front door
to observe them, so the union party drove around to the
side of the Home and there continued their conversation.
A few days later, between June 6 and 9, Fowler
testified that she had another conversation with
McCluskey. Fowler had been speaking to the union men
at the back fence when McCluskey called to her from the
steps leading to a rear entrance . Fowler went to see her
and McCluskey said that she had some clothing in her
apartment at the Home that might fit Fowler's children.
They went to the apartment, and as McCluskey was
'At the hearing the parties stipulated that the joint executive board filed
a representation petition on June II and that an election among the
employees of the Home was conducted on August 8.
putting the clothes in bags, she asked Fowler again if she
had signed a card. Fowler said she wouldn't have any part
of it, and McCluskey then told her that what with union
dues the employees might make less than they were, even
if the Union got them a raise. She also said that she and
her sisters had worked hard and weren't going to let the
Union take over. McCluskey also told Fowler that she
knew the girls were signing union cards and were even
forging the names of employees on such cards.
The next morning, as Fowler was going off duty, she
went to her locker to pick up some of the clothing
McCluskey had given her the day before. McCluskey saw
her, made some personal inquiries and then asked her
again about the union cards. Fowler this time replied that
she was tired of being asked about the matter, to which
McCluskey said that Fowler was nothing but an
instigator. Fowler said she wouldn't argue with her and
left.
McCluskey denied that she had told Fowler that
anyone joining the Union was an instigator , and also
denied ever asking whether she had signed a card.
McCluskey said she had not called out to the union
representative when she saw him talking to some of her
employees.
McCluskey testified that she had held meetings of her
employees at which she told them that if they thought
they could better themselves with a union it was their
prerogative to do so, even though it was her opinion that
they would not gain a great deal by it. The time of these
meetings, which were also mentioned by other witnesses
for the Respondent, was never placed. The testimony was
presumably offered to show that McCluskey did not
intend to oppose the Union by illegal means, but it is
most probable that these meetings were held shortly
before the election on August 11, some weeks after the
interrogation of Fowler by McCluskey, and the discharges
of Fowler and Dyess. In any event, statements of views
and opinions such as these, protected by Section 8(c) of
the Act, do not necessarily prove that McCluskey did not
at some other time interfere with the rights of employees
to be protected against implied threats and illegal
interrogation as to their adherence to a union.
The Discharges of Fowler and Dyess
On Saturday, June 29, Fowler and Dyess left work
about 7 a.m., at the conclusion of their shift. Although
Fowler's schedule, as originally set by McCluskey in
April, permitted Fowler to have the next two nights off,
McCluskey had changed the schedule just a day or two
before , at a meeting of the night-shift employees where
she complained that they were not doing their work
properly. She had then said, according to Fowler's
undenied testimony, that if things did not improve she
would fire the whole crew. She also said to Fowler that
from now on she would be working like the rest of the
girls, and directed her to come in Saturday night, June 29.
About 4 p.m. that Saturday, McCluskey telephoned
Fowler at home and told her abruptly that she wouldn't
be needing her any more . Fowler asked if that meant that
she was being fired, and McCluskey said it did. Fowler
said she thought she was owed an explanation, but
McCluskey merely replied that she did not care to discuss
it any further with her and hung up.
Fowler than called the Home back and was directed to
Gertrude McCluskey , an administrator at the Home and
the sister of Mary McCluskey. Gertrude told Fowler that
her sister had said that one of the patients had been left
LITTLE FLOWER NURSING HOME
lying on her nasal feeder, while another had a temperature
of 104 degrees, and that none of the patients had been
taken care of during the night. She also said that the cook
could not get in that morning because Fowler had been
asleep. Fowler claimed not to be responsible for any
mixup or trouble involving the patients with the nasal
feeder or the high temperature. Gertrude then said that
she would speak to her sister about it, and have her call
Fowler back.
Fowler then called Nurse Gilligan at her home to tell
her that Mary McCluskey had fired her, and what
Gertrude McCluskey had told her were Mary's reasons.
Gilligan said she would find out what had happened and
would call her back. She did not call back, but when
Fowler called her within a day or so, Gilligan repeated the
same reasons that Gertrude McCluskey had given her.
Respondent's answer filed on October 24, and its
motion for severance filed the same date, state that
Fowler terminated her employment voluntarily on June
29. At the hearing in this matter, however, heard on
November 20, or approximately 5 months after the
discharge, Mary McCluskey testified that her only reason
for discharging Fowler was that she had learned that day
that Fowler had been found to be sleeping about 5 a.m.
while supposedly at work.
Dyess had been hired about June 21, and had worked a
few days on the day shift before being transferred to the
night shift under Gilligan' s supervision . Gilligan testified
that she had told McCluskey she was somewhat
prejudiced against Dyess because she had heard that
Dyess had said she preferred the night to the day shift
because it was easier , and you could sleep on the night
shift. However, Gilligan also testified that she had told
McCluskey that she would need to work with Dyess for
about a week before she could make a fair judgment as to
her work. Dyess in fact was fired after working only 2
nights with Gilligan.
When Dyess reported for work at l l p.m. on June 29,
her timecard was not in the rack. Miller, a licensed
practical nurse who took Gilligan's place when Gilligan
was off, also reported about the same time and could not
find her timecard either. They went to Miss McCluskey's
apartment and spoke to her. Dyess asked about her
timecard and McCluskey then said that she would not
need her any more. Dyess asked her why, and McCluskey
said that it had been reported to her that Dyess had been
sleeping and that a patient's temperature of 104 degrees
had not been reported on her chart, while another patient
had slept on her nasal feeder tube when she should have
been observed and turned. Dyess denied that she had been
sleeping and disclaimed any responsibility for the other
two incidents. Miller then asked about her timecard and
McCluskey turned it over to her to punch in.
In Respondent's motion for severance filed concurrently
with its answer to the complaint , Respondent contends
that it discharged Dyess for failing to fulfill the duties
assigned to her in the course of her probationary
employment. At the hearing, McCluskey claimed that
Dyess was discharged because she had not had enough
experience to carry a floor alone and was not good
training material.
The General Counsel argues that the reasons originally
given to Fowler by Gertrude McCluskey for her discharge,
as well as the reason which Mary McCluskey gave at the
hearing were pretexts to conceal Mary McCluskey's
intention to punish Fowler for her interest in union
organization . As for Dyess, who engaged in no union or
concerted activity during her short period of employment,
689
the General Counsel argues that she was an innocent
victim of McCluskey's scheme to get rid of Fowler, since
both of them had worked the same shift at the same
stations.
The Testimony as to the Discharges
Respondent offered no testimony to support its answer
to the complaint, that Fowler had voluntarily left her
employment. The fact that it did not, indicates an
inconsistency in its defense, or at least, indecisiveness at
an advanced stage of the proceeding as to what its defense
to the complaint would be.
The failure to offer a consistent story as to the basis for
Fowler's discharge, is also revealed by the fact that some
of the reasons which Mary McCluskey gave her sister and
Gilligan as prompting the discharges were manifestly
untrue. On June 29, McCluskey told Dyess directly, and
told her sister and Gilligan, for transmission to Fowler,
that among the reasons for the discharges was their
responsibility for one patient's high temperature being
unreported, while another patient had not been turned at
the prescribed time so that she had been allowed to sleep
on her nasal feeder which had slipped from its proper
position. The first incident was supposed to have happened
the morning of June 29, and the latter about 10 days
before. Dyess who was accused of some fault in both these
incidents, was completely innocent of either since she had
never been told to take patients' temperatures, and had
not yet been employed when the nasal feeder incident
happened.
As for Fowler's alleged culpability in these matters, she
too could not have been responsible for the patient (Mrs.
Jannsen) not having been turned, since Jannsen's room
was on the first floor while Fowler was assigned to duties
on the floor below that, from 5:45 to 7 a.m. If she had
given Mrs. Jannsen a nasal feeder shortly before 6 a.m.
(and this would have been the first such feeding that
morning), Fowler would have left that floor immediately
thereafter, so that she could not have been required to
turn the patient after that hour. As for the patient with
the high, unreported temperature, Mrs. Koeller, Fowler
testified that she was not supposed to take patients'
temperatures when there was a nurse on duty, unless
specifically instructed to do so. In any event, Gilligan
testified that she had examined Koeller's chart later, and
it showed that her temperature had been taken,
presumably by a nurse at the prescribed time, and that it
was much below 104 degrees.
Thus, it is evident that some of the reasons which
McCluskey gave Dyess and Fowler at the time of their
terminations were not based on any timely investigation,
and have been shown to be unjustified.
The following analysis of the reasons which McCluskey
gave at the hearing as prompting the discharges leads me
also to conclude that they were not the true reason for her
action, or were not the only reason. As for Fowler,
McCluskey testified that she had discharged her because
she had found her once asleep while at work and
suspected her of sleeping on two other occasions. The
chronology with respect to these separate incidents, as
testified to by McCluskey and one other witness for the
Respondent, Mrs. Damons, is as follows, as best as I can
reconstruct it now. All of these incidents had to occur
when Gilligan was off duty, which would be on either a
Friday or a Saturday morning, since Gilligan was never
told by McCluskey that Fowler had been reported asleep
while Gilligan was on duty. Gilligan in fact testified that
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fowler never slept while the two of them were on duty
together.
McCluskey said that the first such incident took place a
couple of weeks before the discharge on June 29.
McCluskey said she had slept at her apartment at the
Home one night, that she awoke about 4:30 a . m. with an
uneasy feeling , walked upstairs and found Fowler asleep in
a chair . She wakened her but didn't say much about it
then . Later that morning , before Fowler went home,
McCluskey called her in to counsel her on how important
it was to watch for patients who might awake early, start
smoking and set their beds on fire.
McCluskey then testified that on June 21-22 she again
spent the night in her apartment at the Home . She was
awakened by a telephone call from Mrs . Damons, a cook,
whose shift began at 5 a .m. and who had been unable to get
anyone to open the front door of the Home for her when
she reported for work .' She was calling from a public
telephone booth about a block from the Home.
McCluskey testified that she opened the locked door for
Damons, and although she first said that Fowler and
Dyess were on duty, she later said that she was not certain
that Dyess was on duty . I note that if the incident
happened on Saturday , June 22, Dyess could not have
been on duty since she had not been hired until about
June 21 and had not gone on the night shift until the
middle of the following week . It seems strange to me that
if McCluskey considered it a serious matter when she
found Fowler asleep , as she says she did the Saturday
before, that she did not try to learn if Fowler was again
asleep on June 22 when she let Damons in. Further, if the
incident occurred as McCluskey described it, it seems
equally strange that Gilligan , Fowler's immediate
supervisor , was not told to speak directly to Fowler, if
McCluskey wanted her previous counseling or warning
reinforced , since Gilligan was a stickler for proper
performance by her assistants and aides , thought well of
Fowler, and would have been as concerned as McCluskey
over any derelictions on Fowler's part.
The incident which triggered Fowler 's discharge took
place at 5 a .m. on the following Saturday , June 29. This
time it was Sturghill , a maid , who testified that she rang
the bell at the Home for quite awhile before Dyess let her
in. Sturghill testified that this was the first time the front
door had been locked when she reported for work at 5
a.m. Respondent 's counsel did not ask Sturghill on direct
examination if she had seen Fowler sleeping when she
entered the Home , but when counsel for the General
Counsel questioned her as to what had happened when she
arrived at work , she claimed that Dyess had let her in,
and she then saw Fowler sitting up asleep on a couch in
the living room, opposite the front entrance to the Home.
McCluskey then testified that when she got to the
Home about 7 a.m., Sturghill was quite angry about
having to stand outside and continuously ring the bell in
order to get in. McCluskey ' s testimony implies that
Sturghill had told her that morning that this had
happened before, since she quoted Sturghill as saying, "I
am getting tired of having to ring the bell, stand outside
and wait and wait and wait when I come in early to do
my work and I lose time standing outside ." This is
'Mrs. Damons' testimony was that she had called the Home to rouse
someone to let her in on June 29 (the date of the discharges of Fowler and
Dyess), and that McCluskey had let her in. The incident could not have
occurred on June 29, because for one thing, McCluskey testified that she
had not spent the night of June 28-29 at the Home, with which all the
witnesses, for General Counsel and Respondent alike (except Damons)
agree.
inconsistent , however, with Sturghill 's own testimony that
June 29 was the only morning when she had found the
front door locked.
Fowler denied that she had ever slept while at work
(except once about 6 months before , after a death in her
family, and then only with Gilligan 's permission). She also
denied that McCluskey had ever found her asleep or had
ever warned her about sleeping . As to Sturghill's
testimony about June 29, Fowler said that Dyess had let
Sturghill in about 5 a.m., (there is a stipulation that
Sturghill punched in at 4:57 a.m.) and that when Sturghill
came into the front hall, she, Fowler , was sitting on a
couch , smoking a cigarette and drinking a cup of coffee.
Fowler explained this as occasioned by a particularly
rough half hour beginning about 4:30 a . m. when she had
to clean and redress a restless patient and change his bed.
She said she had then gone to the nurses ' station where
coffee is kept, got herself a cup and come into the living
room to rest a few minutes before starting on her 5 a.m.
rounds . She denied that she had been asleep.
Concluding Findings
This is a fairly typical example of those cases in which
alleged questioning of an employee's union activity
constitutes the only evidence of the employer' s antiunion
animus, which is then relied on to prove that a later
discharge of the employee was for discriminatory reasons.
It is also typical in that the General Counsel's witness and
evidence as to the violation of Section 8(a)(1) are directly
contraverted by Respondent ' s witness and evidence. If
Fowler is to be believed , McCluskey asked her a number
of times if she had signed a union card, and then made
her a present of children's clothing in a patent attempt to
learn something about how the union campaign was going,
and to win her over to the employer's side. If McCluskey
is to be believed, she never asked Fowler or anyone else
whether they had signed union cards , and the gift of
clothing thereby becomes a gesture of unalloyed
friendship.
I am unable to decide between Fowler and McCluskey
on demeanor alone . Each appeared to be trustworthy and
honest , yet one obviously had a greater measure of the
truth on her side than the other. I think that that one was
Fowler, and I have reached that conclusion because I am
convinced that McCluskey' s explanation of why she
discharged Fowler and Dyess was not the whole truth, if
indeed it was the truth at all. I am satisfied that
McCluskey was concealing something , and that it forced
her into an inconsistent and improbable story.
First, as for Dyess . McCluskey never gave her a fair
chance to show whether she would make a satisfactory
permanent employee . McCluskey had little opportunity to
observe her directly , and Gilligan had said that she would
need a week of working with her to pass judgment. Yet
after only 2 or 3 days of working on the night shift,
McCluskey accused her of conduct which she must have
known Dyess could not have committed. She also accused
Dyess of sleeping, despite any basis for the charge.
Sturghill was admitted to the Home by Dyess before 5
a.m., so that Sturghill could not claim that she had seen
Dyess asleep . Since Sturghill had never had to wait
outside or to ring the bell before at 5 a.m., her wait may
have seemed longer and more odious to bear than it would
have been at a more decent hour of the morning. Why
then should McCluskey have seized on Sturghill's
overwrought complaint as a reason to discharge Dyess,
without investigation and without checking with Gilligan?
LITTLE FLOWER NURSING HOME
I believe that it was because McCluskey wanted to get rid
of Fowler while surrounding the transaction with an air of
making a clean sweep of those night shift employees who
worked on the first floor.'
As for Fowler. McCluskey's attempt to pile up
incidents as to Fowler sleeping while on duty, seems to me
to fall of its own weight. On June 29, Sturghill said that
she saw Fowler asleep, or "if she wasn't asleep, she sure
pretended she was asleep." This may mean nothing more
than that Fowler was taking her ease over a cigarette and
a cup of coffee. The fact that coffee is furnished at the
nurse's station indicates that sitting down between making
the rounds of patients had not previously been regarded as
a dischargeable offense. Of course, there is a wide
difference between resting for a few moments while
drinking coffee, and sleeping so soundly as not to hear a
doorbell being rung. There is no way by which I can now
discover whether Fowler was resting momentarily or
sleeping soundly, but for McCluskey to discharge her on
Sturghill's say-so alone, without giving Fowler any chance
to explain, and without first taking the matter up with
Gilligan, strikes me as so arbitrary a decision as to
suggest that something else was behind it. I recognize, of
course, that if McCluskey had already found Fowler
asleep once before, and suspected her of being asleep
another time, the nature of the discharge on June 29
would be completely changed.
I have already explained why I consider McCluskey's
testimony about having found Fowler asleep about 2
weeks before June 29, and her testimony as to letting
Damons in one morning about 5 a.m. as being less
persuasive than Fowler's denial that she had been sleeping
on either of these two occasions. To repeat it briefly, I
find it difficult to believe that if McCluskey had to leave
her apartment, and go to the front door of the Home to
admit Damons at 5 a.m., she would not also have checked
around to find whoever was supposed to be on duty at
that hour on the first or ground floors. She did not, or if
she did, it was not Fowler who was on duty. Moreover,
although Gilligan testified that McCluskey had discussed
with her Fowler's sleeping on the night shift, the time of
such discussion was not established, and for all I know, it
may have occurred after Fowler's discharge. If McCluskey
had raised it with Gilligan before that, Gilligan could not
have considered it significant , since she never mentioned it
to Fowler. I believe, in view of Gilligan's no-nonsense
attitude toward her work, which impressed me at the
hearing, she would have promptly brought up with Fowler
anything which struck her as improper performance on
the job, even though it had been committed while she was
not at work.
I therefore conclude that Fowler was not discharged
because McCluskey knew or suspected that she had slept
on the job, and that Dyess was discharged to lend an
apparent justification for the former's termination. If the
reasons McCluskey gave at the hearing are not to be
believed, then some other explanation for the summary
dismissals must be found. I find such explanation in
Fowler's testimony, which I credit, that on three occasions
early in June, McCluskey asked Fowler if she had signed
a card for the Union.
McCluskey had no justifiable reason for asking Cook if
she had authorized the Union to represent her,
'I suspect that McCloskey had removed the timecard of Miller,
Gilligan 's replacement on weekends , because she had been contemplating
discharging her too, but then apparently decided that so drastic a sweep of
the night shift carried its own dangers.
691
particularly when, as here, the inquiries occur during the
sensitive initial steps of an organizing campaign.' I find
that McCluskey' s inquiries , in the circumstances of this
case, constituted illegal interference with the right of
Fowler and of all other employees of the Home to
self-organization and to join or assist labor organizations
of their choice. McCluskey' s interrogation of Fowler
violated Section 8(a)(1), and her discharges of Fowler and
Dyess violated Section 8(a)(1) and (3) of the Act.'
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) and (3),
I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
I shall recommend that the Respondent offer Isola
Fowler and Carrie Dyess immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority and other rights or
privileges, and make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them, by payment to them of a sum of money
equal to what each of them would normally have earned
as wages from the date of discharge to the date of the
Respondent's offer of reinstatement, less net earnings
during such period, with backpay and interest thereon to
be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
On the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Little Flower Nursing Home is an employer within
the meaning of the Act , and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. St. Louis Local Joint Executive Board of Hotel and
Restaurant Employees and Bartenders International
Union , AFL-CIO , is a labor organization within the
meaning of Section 2(5) of the Act.
3. By Mary McCluskey' s interrogation of Isola Fowler
as to whether she had signed a union card, the
Respondent has interfered with its employees ' exercise of
rights guaranteed in Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging Isola Fowler and Carrie Dyess to
discourage membership in the Joint Board , Respondent
has violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record in this
proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend
that the Respondent, Little Flower Nursing Home, its
'Koch Engineering Company. Inc., 155 NLRB 1272.
'As for the discharge of Dyess constituting a violation of the Act, even
though she did not herself engage in concerted or union activities , see Von
Der Ahe Lines . Inc.. 164 NLRB No. 91 (Betty Trail).
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees in an unlawful manner
as to whether they have signed union cards, or otherwise
interfering with, restraining or coercing them in the
exercise of rights guaranteed by Section 7 of the Act.
(b) Discriminating against employees for joining or
assisting any labor organization or for engaging in
concerted protected activities, or to conceal discriminatory
treatment of other employees who have themselves
engaged in union or concerted activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Isola Fowler and Carrie Dyess
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings each of them may have suffered by reason of the
discrimination against her, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after their
discharges from the Armed Forces.
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, all records
necessary for the computation of backpay which may
become due under this Recommended Order.
(d) Post on its premises at St. Louis, Missouri, copies
of the attached notice marked "Appendix."' Copies of
said notice, to be furnished by the Regional Director for
Region 14, shall, after being duly signed by a
representative of the Respondent, be posted by
Respondent 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 ensure that said notices are
not altered, defaced, or covered by any other material.
'In the event that this Recommended Order be adopted by the Board the
words "a Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice . In the further event
that the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "a Decision of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order"
'In the event that this Recommended Order be adopted by the Board
this provision shall be modified to read : " Notify said Regional Director in
writing within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of receipt of this
Decision, what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT interrogate our employees in an
unlawful manner as to whether they have signed union
cards, nor will we interfere with , restrain or coerce
them in any other manner from joining or assisting St.
Louis Joint Executive Board of Hotel and Restaurant
Employees , AFL-CIO, or any other labor organization
of their choice.
WE WILL NOT discharge or otherwise discriminate
against employees who have joined or assisted any
labor organization or who have engaged in concerted
protected activities, nor will we do so in order to
conceal the discriminatory treatment of other
employees who have engaged in such activities.
WE WILL offer Isola Fowler and Carrie Dyess
immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to
their seniority or other rights or privileges, and make
each of them whole for any loss of earnings she has
suffered.
LITTLE FLOWER NURSING
HOME
(Employer)
Dated By
(Representative) (Title)
Note: Notify each of the above-named employees if
presently serving in the Armed Forces of the United
States of her right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 314-622-4165.