Long Island Nursing Home

National Labor Relations Board - Board Decisions

Oct 18, 1989

297 N.L.R.B. 47 (N.L.R.B. 1989)

LONG ISLAND NURSING HOME 47
Long Island Nursing Home and Local 144, Hotel,
Hospital, Nursing Home and Allied Services
Union, Service Employees International Union,
AFL-CIO. Cases 29-CA-13471 and 29-CA-
13565
October 18, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On June 20, 1989, Administrative Law Judge
James F Morton issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions' and brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions3 and to adopt the recommended
Order
'No exceptions were filed to the judge s dismissal of the allegation
that the Respondent violated Sec 8(a)(4) of the Act
In its exceptions, the Respondent argues that the remaining unfair labor
practice Issues in this proceeding should be deferred to the parties con-
tractual grievance-arbitration procedures pursuant to the Board s policy
set forth in Collyer Insulated Wire, 192 NLRB 837 (1971), and in United
Technologies Corp, 268 NLRB 557 (1984) The Respondent has not previ-
ously raised this defense in its answer to the complaint or in argument
before the judge Accordingly, we find that the deferral issue has not
been timely and properly raised at this stage of the proceeding See, e g,
Asbestos Workers Local 22 (Rosendahl, Inc ), 212 NLRB 913 (1974) More-
over, because the alleged 8(a)(4) violation was factually intertwined with
the 8(a)(3) violation found by the judge, we will not defer the 8(a)(3) al-
legation after the close of the hearing even though the alleged 8(a)(4)
violation was dismissed by the judge and no exceptions to that dismissal
were filed
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We correct the following factual errors in the judge s decision (1) Dis-
cnminatee Judith Marcel did not work as a utilization review and patient
review instrument (URPRI) coordinator for 13 years Although the
record shows that Marcel worked in a part-time patient review capacity
for approximately 13 years from 1975 until 1988, her job classification
until 1985 was division of medical service/utilization control coordinator
(DMS/UCC), and she was thereafter employed as the patient review
instrument/utilization review coordinator (PRI/URC) (2) Marcel s cred-
ited testimony is that the Respondent's administrator, Phyllis Schindler,
shook her head when she overheard Marcel, dunng a telephone conver-
sation with the Union's lawyer, state that she was still in the Union, but
there is no evidence that Schindler verbally interjected, "No, you're
not" (3) Schindler, although generally discredited where in testimonial
conflict with Marcel's testimony, did specifically controvert Marcel's
statement that when Schindler first referred to Marcel as the quality as-
surance director the Director of Nursing Services Joan Wilson threat-
ened to quit unless the title was withdrawn from Marcel None of the
judge's errors, corrected above, affects the ultimate disposition of issues
presented here
'We agree with the judge's conclusion that the Respondent violated
Sec 8(a)(5) by transferring Marcel's job duties to supervisors and an out-
side contractor The Respondent did not give the Union notice of any
change in this mandatory subject of bargaining, or provide the Union
ORDER
The National Labor Relations, Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Long Island
Nursing Home, New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
with an opportunity to bargain with respect to the elimination of Mar-
cel's position and her subsequent termination Rather, as found by the
judge, the Respondent always presented its decision as a fait accompli In
adopting the judge's Order, we find it necessary to rely on his citation to
Howard Electrical & Mechanical, 293 NLRB 472 (1989), which is based
on a theory not litigated in this case
Kevin R Kitchen, Esq , for the General Counsel
Terry Porter, Esq , for the Respondent
Larry Cary, Esq (Vladeck, Waldman, Elias & Engelhard
P C ), of New York, New York, for Local 144
DECISION
STATEMENT OF THE CASE
JAMES F MORTON, Administrative Law Judge The
pleadings place in issue whether Long Island Nursing
Home (Respondent) violated Section 8(a)(1), (3), (4), and
(5) of the National Labor Relations Act (the Act) by the
alleged discriminatory treatment and discharge of a reg-
istered nurse and by assigning her duties to individuals
not represented by Local 144, Hotel, Hospital, Nursing
Home and Allied Services Union, Service Employees
International Union, AFL-CIO (the Union) without bar-
gaining thereon
The hearing was held in Brooklyn, New York, on
February 15, 1989 On the entire record, including my
observation of the demeanor of the witnesses, and after
due consideration of the briefs filed by counsel for Gen-
eral Counsel, the Union, and Respondent, I make the fol-
lowing
FINDINGS OF FACT
I JURISDICTION AND STATUS OF THE UNION
Respondent is a copartnership which operates a skilled
nursing home facility in the Borough of Queens, New
York City, and which, in its annual revenues and inter-
state purchases, meets the Board's standard for asserting
jurisdiction over nursing homes
The Union is a labor organization as defined in the
Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A History of Collective Bargaining
The Union has, since 1970, represented a unit of all
nonsupervisory registered nurses employed by Respond-
ent That unit is covered by a collective-bargaining
agreement effective from Apnl 1, 1978, until March 31,
1990
In Case 29-UC-249, Respondent had petitioned for
clanfication of that unit, seeking to exclude therefrom, as
297 NLRB No 5
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supervisors two of its registered nurses and a third on
the ground that she was a managerial employee That
third registered nurse is Judith Marcel, the employee
who is alleged in the instant cases as having been discn
minatonly harassed and discharged after the decision in
Case 29-UC-249 had issued In that decision Respond
ent s petition was granted in all respects except as to
Marcel She held the position of utilization control coor
dmator In the unit clanfication decision it had been de
termmed that she was not a managerial employee and
that there was no basis to exclude her from the nursing
unit Accordingly the petition in Case 29-UC-249 was
dismissed insofar as it sought to exclude the classifies
tion utilization control coordinator from the contractual
unit covering Respondent s registered nurses The deci
mon in that case issued on December 27, 1987 Respond
ent did not request review thereof
The alleged violations in the instant cases according
to the consolidated complaint, took place in January
1988 and in the succeeding months All dates are for
1988 unless stated otherwise
B Marcel s Employment History
Judith Marcel began working for Respondent in 1969
and in her first several years with Respondent held van
ous positions including charge nurse RN supervisor
and DMS 1 night coordinator In about 1975 she served
as the utilization review and patient review instrument
(URPRI) coordinator She worked in that capacity 3
days a week for 13 years Her responsibility as URPRI
coordinator was to prepare for each of the 200 patients
at Respondent s facility medical and emotional evalua
tions which were used in order that Respondent might
obtain, from the State of New York reimbursement of
its costs in caring for those patients Marcel performed
no patient care duties rather she monitored the condi
tion of each patient by her contacts with RN supervisors
and staff personnel by reviewing patient charts and by
speaking with the patients and their families
C The Alleged Unfair Labor Practices
1 Evidence offered in General Counsel s case in
brief
Marcel testified without contradiction as to an mei
dent that took place on January 5 She received a tele
phone call that day at Respondent s facility from a
lawyer representing the Union He told her that the
Board had decided in the UC case discussed above that
she was still in the Union She responded to that state
ment by repeating it, saying that she was still in the
Union Respondent s administrator Phyllis Schindler
overheard that remark and interjected, No, you re not
Shortly afterwards Respondent posted a work sched
ule for the nurses It listed Marcel as an RN supervisor
Previously the nursing schedules listed her as URPRI
coordinator On an afternoon after the revised schedule
had been posted Respondent s director of nursing serv
ices (DNS) Joan Wilson told Marcel that she was to
remain on duty because an RN supervisor on the evening
shift would not be in because of illness Wilson told
Marcel that she was wonderful with the patients and was
an excellent supervisor Marcel answered that she was
not a supervisor and that she was the UR coordinator
Wilson instructed her to come with her to her office and
also called the RN supervisors to her office She asked
for a volunteer to cover the evening shift and stated that
if none volunteered she would direct one of the group
including Marcel to stay The matter was resolved when
one of the RN supervisors volunteered to stay
For years past and up to then a registered nurse had
assisted Marcel in patient evaluations Marcel, as noted
above worked 3 days a week her assistant did evalua
lions on the other 2 days In the same week that the re
vised schedule was posted DNS Wilson informed
Marcel that she no longer needed an assistant Wilson re
duced the assistant s schedule first to 1 day a week and
then to none
On the morning of February 18 the night supervisor
informed Marcel that there was a note in the supervisor s
log from DNS Wilson which stated that Marcel was to
be a supervisor that day Marcel burst into tears, saying
she was swamped with UR work The desk supervisor
called in an RN supervisor to cover the assignment
DNS Wilson then came to Marcel and asked her how
dare she disobey her order Marcel said she was the UR
coordinator and still in the Union Wilson told her that
she was her boss and that she is to listen to her Marcel
insisted that she was not a supervisor
Throughout that entire day, Wilson followed Marcel
ordering her to count everything she did and looking
at every single report that Marcel filled out Respond
ent s administrator Schindler called Marcel to her office
and asked why she had disobeyed Wilson Schindler then
handed Marcel notes from the State of New York con
cerrung patient evaluation forms (PRIs) that Marcel had
prepared Schindler told her that there were mistakes on
her PRIs and asked Marcel what she intended to do
about them Marcel reviewed the papers and observed
that the mistakes had to do with typographical errors
which had nothing to do with her own performance
There was no further discussion of that subject
I credit Marcel s testimony as set out above It is es
sentially uncontradicted I also credit her account as to
the following
In early January, Schindler told her that the State of
New York had a new requirement which called for Re
spondent to perform quality assurance functions
Schindler stated that she herself did not know anything
about those functions and that she and Marcel could
learn them together
On March 15 Marcel was told by Schindler that her
duties as URPRI coordinator and her quality assurance
duties were going to be performed by somebody who
was being hired and that Marcel s position was termmat
ed because Schindler wanted to sweep the slate clean
Schindler then asked her to be a supervisor Marcel re
fused saying that Schindler was terminating her and
forcing her resignation
As developed later in the record before me Marcel s
duties as URPRI coordinator and the related quality as
surance functions she performed were after March 15
spread among RN supervisors until about April 1 when
LONG ISLAND NURSING HOME 49
Respondent retained an "outside consultant" who , has
performed them since
Marcel kept the Union's business representative, Joan
Cutright, aware of the foregoing developments as they
occurred Cutnght first, spoke with Schindler in January
about Marcel's complaint Schindler told her then that
Respondent was "out of standards," a reference to Re-
spondent's having failed to pass the inspection of its facil-
ity conducted in 1987 by the State of New York
Schindler further told Cutnght in that discussion that
Respondent needed a "five day person" to do Marcel's
job because it was "out of standards"
Cutnght testified that she had many discussions in
early 1988 with Schindler concerning Marcel, all of
which were initiated by her, Cutnght In those discus-
sions, Schindler told Cutnght that DNS Wilson had
found that Marcel did not function at the level Wilson
desired, that Wilson was starting to make a transition,
and that Wilson believed that Marcel could not fit that
transition Schindler also told Cutnght that the only way
that Marcel's problem can be resolved would be to have
Marcel accept a position as RN supervisor
2 Respondent's defenses
Respondent asserted at the hearing that it had assigned
Marcel's duties to an outside consultant, not for discrimi-
natory reasons, but because it had to take drastic steps to
get its facility into compliance with Department of
Health standards and because Marcel's performance as
utilization review coordinator was inadequate Further,
Respondent asserted that the Union never sought to bar-
gain as to the elimination of Marcel's position
Respondent's administrator, Schindler, testified in sup-
port of those contentions The evidence proffered as to
Respondent's not being in compliance with Department
of Health standards is not in dispute It shows that in
1986 and 1987 Respondent failed to pass inspections The
deficiencies on which those failures were based had
nothing to do with the evaluations performed by Marcel
Rather, they had to do with failures in providing for par-
ticular patient needs, e g, a citation that each resident
does not receive assistance as needed to ensure good skin
care
At the hearing, Schindler testified, in substance, that
Marcel was responsible for one deficiency cited by the
Department of Health Its report noted that "initial as-
sessments are inconsistent with patients status"
Schindler's testimony suggested that that referred to defi-
cient PRIs prepared by Marcel However, there was a
cross-reference in the Department of Health report
which disclosed that that citation pertained in particular
to the fact that LPNs were performing RN functions I
am unable to see how that reflects on Marcel's perform-
ance as URPRI coordinator More significantly, the evi-
dence that Marcel was given quality assurance duties in
early 1988 tends to belie Respondent's contention that
Marcel's work was inadequate The record indicates that
quality assurance and PRI work both require essentially
the same skills—the ability to identify and evaluate pa-
tients' physical and emotional needs
There were other aspects of Schmdler's account which
did not impress me Thus, her assertion that Marcel's
performance was inadequate was conclusory Also, she
referred to Marcel as "bright intelligent" and it ap-
pears unlikely that a nurse with those attributes and who
has been doing a job for at least 13 years can be sudden-
ly found to have been performing it inadequately When
those considerations are coupled with the fact that
Marcel had never been told her work was deficient in
any material aspect and with the further fact that Re-
spondent could point to no particular asserted deficiency
in her work, it is far more likely that Marcel was doing
an acceptable job as URPRI coordinator
Schindler alluded, on one point, to a concept of the
"case mix index" and indicated, in connection with that
niatter, that Marcel was not setting forth in her patient
evaluation all the needs of the patients and that, as a con-
sequence, Respondent was not able to bill the State of
New York for all the services It provided In substance,
that testimony is but a restatement of Respondent's con-
tention that Marcel's evaluations were inadequate and I
find that the evidence Respondent offered thereon to be
unconvincing Schindler testified that since the outside
consultant began to do evaluations in April Respondent
received $250,000 to $300,000 a year more in reimburse-
ment from the State She based that estimate on her
statement that each decimal point in the case mix index is
equivalent to about "43 cents a patient day" and on her
testimony that in May the case mix index went up 8
cents Counsel for the General Counsel has calculated in
his brief that, based on the fact that there are 200 beds at
Respondent's facility and on a projection of the 8-cent
increase throughout the year, the total dollar increase for
1988 would be $31,390 and not a quarter of a million
dollars The short answer to this mathematical contro-
versy is that Respondent's evidence is conclusory, unsup-
ported by any documentation, and thus unpersuasive
Respondent, as noted, contended that the Union never
requested bargaining respecting the elimination of Mar-
cel's duties from the scope of unit work There is no fac-
tual dispute as to the conversations between Schindler
and Cutnght
At one point during the presentation of Respondent's
case, Respondent referred to Marcel as the "Quality As-
surance Director" Schindler testified that she told
Cutnght in early 1988 that that was a management posi-
tion However, Marcel's testimony is uncontroverted
that when Schindler first referred to her as quality assur-
ance director, Director of Nursing Services Wilson
threatened to quit unless that title was withdrawn
Thereafter, Marcel was referred to as URPRI coordina-
tor (QA coordinator) Her duties in quality assurance are
analogous to those of a quality control inspector, in any
event, there is no showing that would warrant her re-
moval from the bargaining unit as a managerial or super-
visory employee
3 Analysis
The record clearly establishes that Respondentrlaving
failed to persuade the Board via its unit clarification peti-
tion to remove the utilization control coordinator from
the unit of nurses at its facility, decided to remove the
functions of that position outside the scope of unit work
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
without having discussed the matter with the Union, that
it transferred those duties in mid March to supervisory
personnel and then on about April to a subcontractor
The work itself is unchanged The evidence is clear too
that Marcel was relieved of her job and offered in its
stead a position as supervisory RN one which would re
quire her to cease supporting the Union There is also
the uncontroverted evidence that Marcel, in that Janu
ary March interval was at times subjected to criticism
and some harassment because she refused to accede to
Respondent s demands that she accept a nonunit position
Finally, I note that Respondent s defenses were not sup
ported by any persuasive evidence
The issue for consideration then is whether, from the
foregoing General Counsel has shown that Respondent
has violated Section 8(a)(1) (3) (4), and (5) of the Act
as alleged in the consolidated complaint
As there was no change in the basic duties performed
by Marcel, insofar as they were performed first by super
visors upon the termination of her employment as
URPRI coordinator in mid March and later by an out
side consultant as the matter as to the scope of her
duties was one peculiarly suitable for resolution through
collective bargaining and as Respondent always present
ed its decision to the Union as a fait accompli which was
unalterable, I find consistent with Board precedent, that
Respondent has unlawfully failed to bargain collectively
with the Union by having relieved Marcel of all her
duties as URPRI coordinator on March 15 and thereby
terminating her employment with it as employee in its
nursing unit In that regard, see Collateral Control Corp
288 NLRB 308 (1988) More significantly Section 8(d)
of the Act expressly prohibits a party to a collective bar
gaining agreement from unilaterally modifying it during
its term Also the Union never consented to the elimina
tion of Marcel s job from the scope of unit work In that
regard, see Howard Electrical & Mechanical 293 NLRB
472 (1989) Respondent s brief states that the Union
never requested to bargain as to Respondent s stated de
cision to remove Marcel s job from the unit In view of
my findings above, any such request would have been
futile as the evidence disclosed that Respondent had a
profound disregard for the Board s unit determination
Again I note that it is not the Union s obligation to press
for bargaining as to Respondent s unilateral act especial
ly where the matter involves a nonmandatory subject of
bargaining Lastly I note that Respondent does not
assert that that Union has waived its rights respecting the
unilateral elimination of Marcel s job from the scope of
unit work Had it raised that contention I would reject
it in the absence of any clear evidence thereon
The evidence also is clear that from the time
Schindler stated forcefully to Marcel that she was no
longer a unit employee Marcel was subjected to pres
sure in order to sever from the nursing unit represented
by the Union Ultimately Respondent effected her termi
nation as a unit employee General Counsel made out a
clear prima facie showing that Marcel was discharged by
Respondent from her job as URPRI coordinator in mate
nal part because she wanted to remain represented by
the Union The burden then devolved upon Respondent
under Wright Line 251 NLRB 1083 (1980), to establish
that it would have nevertheless terminated her employ
ment as a unit employee absent her having supported
the Union For the reasons set out above I find that Re
spondent has not met that burden and therefore I find
that Respondent discharged Marcel because she contm
ued to support the Union
Also as found above, Respondent s DNS had subjected
Marcel to closer supervision and its administrator had
impliedly warned her about mistakes in PRIs purported
ly attributable to her I find that in context, those ac
lions were retaliations for her refusal to accept a supervi
sory position and her insisting instead that she remain a
member of the Union By those actions Respondent un
lawfully discriminated against her in her employment be
cause of her support of the Union In that regard see
Einhorn Enterprises 279 NLRB 576 (1986)
The consolidated complaint also alleges that Respond
ent harassed, discharged and otherwise discriminated
against Marcel because Marcel occupied the utilization
control coordinator position which Respondent unsuc
cessfully had sought to exclude from the nursing unit in
the unit clarification case discussed above The only de
ment supporting that allegation is the timing of the har
assment relative to the issuance of the decision in the UC
case and that is insufficient to sustain the allegation Cf
Viracon Inc v NLRB 736 F 2d 1188 (7th Cir 1984)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 The Union is a labor organization as defined in Sec
tion 2(5) of the Act
3 Respondent has engaged in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act by
having
(a) Harassed its employee Judith Marcel, in subjecting
her to closer supervision in accusing her of disobeying
orders that she perform supervisory duties and in criti
cizing her work performance all in order to discourage
her from supporting the Union s position that the job she
performed was and is one within the scope of the collec
tive bargaining unit the Union represents
(b) Discharged Judith Marcel because she supported
the Union s position as aforesaid
4 Respondent has engaged in unfair labor practices
proscribed by Section 8(a)(1) and (5) of the Act by
having failed and refused to bargain collectively with the
Union as the exclusive representative of the unit de
scribed in paragraph 5, below by unilaterally and with
out bargaining relieving Judith Marcel of all her duties
as utilization control coordinator and by thereafter as
signing those duties to supervisory personnel and to a
subcontractor and by thereby causing her employment as
a bargaining unit member to be terminated
5 The unit described below is appropriate for pur
poses of collective bargaining
All registered nurses employed by Long Island
Nursing Home at its Flushing facility, excluding all
other employees guards the Director of Nursing
LONG ISLAND NURSING HOME ,51
services, the Housekeeping Department supervisor,
Nursing supervisors and all other supervisors as de-
fined in the Act
6 Respondent did not engage in any unfair labor prac-
tices proscribed by Section 8(a)(4) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act
Having found that Respondent unlawfully discharged
Judith Marcel, I shall direct that Respondent offer her
full and immediate reinstatement to her position as utili-
zation control coordinator without prejudice to her se-
niority or other nghts and privileges and that it make her
whole for any loss of earnings and other benefits she suf-
fered by reason of her unlawful discharge, such loss to
be computed in accordance with the formula set forth in
F W Woolworth Co, 90 NLRB 298 (1950), with interest
thereon in accordance with the principles set out in New
Horizons for the Retarded, 283 NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record, I Issue the following recommend-
ed'
ORDER
The Respondent, Long Island Nursing Home, Flush-
ing, New York, its partners, officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Subjecting employees to closer supervision, criticiz-
ing their work performance, charging them with dis-
obeying orders, or otherwise harassing them in order to
discourage them from supporting or assisting Local 144,
Hotel, Hospital, Nursing Home and Allied Services
Union, Service Employees International Union, AFL-
CIO (the Union)
(b) Discharging any employee for having supported or
assisted the Union
(c) Refusing to bargain collectively with the Union as
the exclusive representative of its nonsupervisory regis-
tered nurses by unilaterally, and without bargaining, as-
signing the duties of the utilization control coordinator
to supervisors or subcontractors or by terminating the
employment of its utilization control coordinator
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) In accordance with the manner provided for in the
remedy section, above, offer Judith Marcel full and im-
mediate reinstatement to her job as utilization control co-
, If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ordinator and make her whole for any lost earnings and
other benefits she may have suffered as a result of her
unlawful discharge
(b) Notify the Union in writing that it will bargain col-
lectively with it as the exclusive representative of all em-
ployees in the unit found appropriate above, including
particularly the utilization control coordinator
(c) Remove from its files any reference to the unlawful
discharge of Judith Marcel and notify her in writing that
this has been done and that her discharge will not be
used against her in any way
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Flushing, New York facility copies of
the attached notice marked "Appendix "2 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint allegation
that Respondent violated Section 8(a)(4) of the Act is
dismissed
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT subject our employees to closer super-
vision, criticize their work performance, charge them
with disobeying orders or otherwise harassing them in
order to discourage them from supporting or assisting
Local 144, Hotel, Hospital, Nursing Home and Allied
Services Union, Service Employees International Union,
AFL-CIO
WE WILL NOT discharge any employee because he or
she supported or assisted the Union
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, without bargaining collectively with
the Union as the exclusive representative of nonsupervi
sory registered nurses assign the duties of the utilization
control coordinator to individuals not represented by the
Union
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Judith Marcel her job back as utiliza
non control coordinator and make her whole with inter
est, for all earnings and other benefits she lost as a result
of our having unlawfully discharged her
WE WILL notify the Union in writing that we will bar
gain collectively with it as the exclusive representative of
all our nonsupervisory registered nurses including par
ticularly the utilization control coordinator
WE WILL remove from our files any reference to
Judith Marcel s unlawful discharge and WE WILL notify
her in writing that this has been done and that her dis
charge will not be used against her in any way
LONG ISLAND NURSING HOME