North Kingstown Nursing Care Center

National Labor Relations Board - Board Decisions

Aug 9, 1979

244 N.L.R.B. 54 (N.L.R.B. 1979)

DI)-('ISIONS OF NA'IIONAL. ILABOR R.AIIONS BOARI)
North Kingstown Nursing Care Center and United
Health Care Employees, a Division of Rhode Island
Workers Union. Cases I-CA- 13549. 1 C(A 13550,
and I C('A 13947
August 9. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) Ml MBIRS PEN .I. I()
ANI) TRUESD)AIF
On May 17, 1979. Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, General Counsel filed exceptions 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, North Kingstown Nursing
Care Center, North Kingstown, Rhode Island, its of-
ficers, agents. successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
SIAIEMNI ()F ItH CASt-S
PAui. BISGYER, Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard before me
on March 8. 9, 14. and 15, 1978, in Providence. Rhode
Island, on the consolidated complaint of the General Coun-
sel, issued on October 12. 1977, as subsequently amended
and further consolidated on various dates, and the several
answers of North Kingstown Nursing Care Center. herein
called Respondent.' The litigated questions involve alleged
'The final amended consolidated complaint is based on the fillowing
charges filed by United Health Care Employees, a Division of Rhode Island
Workers Union. copies of which were duly served on Respondent by regis-
tered mail: In Cases I-CA 13549 and I CA 13550. the charges were filed
and served on August 29, 1977. and in Case I CA 13947. the original charge
was filed and served on December 13. 1977: the first amended charge was
filed on January 13. 1978. and served on January 16. 1978: and the second
amended charge was filed on February 21, 1978. and served on February 23,
1978.
violations of Section 8(a)( ). (3). (4). and (5) of the National
Labor Relations Act, as amended.2 Although offered the
opportunIit. the parties waived oral argument hut subse-
quently submitted briefs in support of their respective posi-
tio ns.
Upon the entire record and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties. I
make the following:
FINI)IN(S AN) (()N(I. :SIO)NS
I. lF BSINESS ( IIll R-SPO()NI)NI
Respondent. a Rhode Island corporation with its princi-
pal office and place of business at 990 'Fen Rod Road.
North Kingston. Rhode Island. is engaged in the operation
of a nursing home at that location. In the regular course of
its business. Respondent annually purchases large quanti-
ties of medical supplies, materials. and equipment valued in
excess of $50,000 which are transported directly to its facil-
ity from sources outside Rhode Island. In addition, it pur-
chases such medical supplies, materials, and equipment val-
ued in excess of $50,000 from suppliers located in the State
who themselves are engaged in interstate commerce. Re-
spondent's annual gross volume of business exceeds
$100,000.
I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(21. (6). and (7)
of the Act.
II. l I.ABlO()R ()R(iANIZAIION NVOLIEl)
It is found that United Health Care Employees, a Divi-
sion of Rhode Island Workers Union, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. IHll All(il) LUNIAIR ABO()R PRA( 11( 5S
A. Introduction: Issues
North Kingstown Nursing C(are Center is a small, 59 bed
intermediate health care facility located in North Kings-
town. Rhode Island, employing some 35 to 40 employees.
2 Sec 8(aXl 1 ) of the Act makes it an unfair labor practice for an employer
"to interfere with. restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Section 7 provides that "jelm-
ployees shall have the right to self-organization. to form, join or assist labor
organizations to bargain collectively through representatives of their own
choosing. and to engage in other concerted activities or the purpose of
collective bargaining or other mutual aid or protection .
Sec 8(a)(3)) with certain qualifications not material herein. makes it an
unfair labor practice for an employer "by discrimination in regard to hire or
tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization ....
Sec. 8(al4) makes it an unfair labor practice tfor an employer "to dis-
charge or otherwise discriminate against an employee because he has filed
charges or given testimony under this Act
Sec. 8(a)(5) makes it an unfair labor practice "ito retuse to bargain collec-
tively with the representalives of his empliyees" designated by a majority of
the employees n an appropriate unit.
244 NLRB No. 12
54
NORTH KINGSTOWN NURSING (CARE CENTER
Approximately 90 percent of the resident patients are medi-
caid and welfare patients whose upkeep is paid by the
State. After being closed for a year, the facility was re-
opened in November 1976 by its owner, Virginia DeJonge.
under Respondent's corporate name, who operated it until
April 1977, when it was leased to an individual not here
involved with an option to purchase. DeJonge thereupon
left the area to reside in Florida. However, because the
lessee defaulted in the payments due DeJonge and was oth-
erwise delinquent in the performance of his obligations un-
der the lease agreement. DeJonge was obliged to repossess
the nursing home. Accordingly. on or about July 28, 1977,
DeJonge returned to the area and resumed operation of the
facility. Margaret Clendinning and Marie Roe. the adminis-
trator and director of nursing. respectively, while the lessee
was in possession, promptly terminated their employment
on July 29. 1977. They were subsequently replaced by
James M. Maguire and Patricia Saccoccio on September 1.
1977, as the administrator and director of nursing, respec-
tively. As will later be discussed, several weeks before De-
Jonge's resumption of operations. the Union inaugurated
its organizational campaign among the nursing home em-
ployees, which led to the filing of a representation petition
after DeJonge's return, a Board-conducted election, and the
Union's certification as the employees' bargaining repre-
sentative.
Respondent is charged with the commission of a variety
of unfair labor practices designed to defeat the Union's or-
ganizational and election campaign and to undermine its
subsequently acquired representative status. Specifically.
the alleged preelection misconduct includes elimination of a
paid lunch period and free meals, imposing onerous work-
ing conditions, eliminating privileges, granting a life insur-
ance benefit, threatening to close the nursing home, interro-
gating an employee concerning union activities, threatening
discharge and other retaliatory action, giving an employee
the impression of surveillance, and discriminatorily prohib-
iting posting union material on a downstairs bulletin board.
Also alleged as violations of the Act occurring after the
Union's certification are Respondent's solicitation of em-
ployees to abandon the Union. its disparaging comments
about the Union, its bargaining with an employee, its re-
stricted use of an upstairs bulletin board for posting union
notices and literature, its unilateral promulgation of em-
ployee rules and regulations and an employee code of con-
duct, the unilateral implementation of an employee per-
formance evaluation system, and the promulgation of an
overly broad no-solicitation and no-distribution rule. In ad-
dition to the foregoing, the consolidated complaint alleges
the discriminatory discharge of employees Margaret Busald
and Brian Wilder, the discriminatory issuance of disciplin-
ary warnings to employees Marian Jencks, Wilder, and
Elizabeth O'Keefe, and the issuance of a poor work evalu-
ation to O'Keefe because of her union activities and be-
cause she was subpenaed to testify in the instant proceed-
ing. Urging that the General Counsel has failed to establish
any violation, Respondent insists that whatever action it
had taken was for legitimate business reasons. To place the
issues in proper perspective, I turn to the events in general
chronological sequence.
B. The Evidence
I. The Union's organizational campaign and its
certification following a Board election
Unhappy with their terms and conditions of employment
and their failure to receive wage raises while the lessee was
running the nursing home, the employees in July 1977' dis-
cussed among themselves in the nursing home the desirabil-
ity of seeking union assistance. At their request. Brian Wil-
der. a cook, contacted Union Representative Gary Hamelin
and arranged for an organizational meeting to be held at
the home of Marian Jencks, a licensed practical nurse
(I.PN). on Sunday. July 24. About seven employees. Hame-
lin. and another union representative, George Nee, at-
tended this meeting. A second and third meeting were sub-
sequently held, on July 27 and 29, which were attended by
other employees. as well. A sufficient number of employees
signed union authorization cards on these occasions so that
by August 2 the Union was able to file a petition for certi-
fication4 as representative of all Respondent's nonsupervi-
sory employees. Copies of the petition were forwarded to
the parties the next day. During the pendency of this peti-
tion, the Union. hby letter dated August 5, which wvas re-
ceived by the Respondent on August I11. notified Respon-
dent that the Union was designated by a majority of
Respondent's employees as their collective-bargaining
agent, offered to prove its majority status, and requested
that arrangements be made for contract negotiations. De-
Jonge testified that she first learned of the Union's organi-
zational efforts when she received this letter. Apparently,
recognition was not forthcoming. but on August 26 the par-
ties executed a Stipulation for Certification Upon Consent
Election providing for an election to be held on September
30 in twou separate voting groups of professional employees
(registered nurses) and nonprofessional employees. The
election was held on the scheduled date, and the Union
won. resulting in its certitication or October I I as the exclu-
sive representative of both groups of Respondent's employ-
ees in a single appropriate bargaining unit.' Following cer-
tification Respondent and the Union held several
bargaining sessions without reaching agreement as of the
time of the hearing herein.'
2. Events preceding the Board election
a. P'check incideni
One of the first problems confronting DeJonge when she
repossessed the nursing home was to secure state moneys
3All dates refer to 1977. unless otherwise indicated.
4
Case I RC 15297.
The Certification of Representation describes ihe unit as follows
All full-time and regularly scheduled part-ine employees, including
registered nurses, licensed practical nurses. nurses aides, orderlies.
housekeeping emploees. dietary emplovees. cooks. maintenance em-
ployees. laundry employees and clerical employees employed b) the
Employer [North Kingstown Health Care Center a its . North
Kingstown. Rhode Island location. but excluding managerial employ-
ees. director of nursing, guards and supervisors as defined in the Act.
' In its brief Respondent states that a collective-bargaining agreement was
executed on Mar 10. 1978
55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payable to the home with which to pay employees wages
due Friday. July 29, which had accrued during the lessee's
incumbency, and other expenses. The day before, a rumor
was circulating among the employees that there was a
strong possibility that they might not be paid their wages on
their regular Friday payday. As a result, about 18 off-duty
employees congregated on the lawn in front of the nursing
home early Friday afternoon to request their paychecks.
Among them was Margaret Busald, a third-shift nurses
aide, whose participation in this incident is alleged to have
motivated her subsequent discharge, as will be later dis-
cussed. When Busald arrived at the scene she was informed
that another employee's effort to obtain the paychecks had
been unsuccessful. At someone's suggestion Busald.7 Mar-
ian Jencks, an LPN on the second shift; Administrator
Clendinning; and perhaps other employees, too, entered
DeJonge's office to speak to DeJonge about their pay-
checks. At the time, DeJonge was on the telephone trying
to secure the release of state moneys to the nursing home,
rather than the lessee, to use to pay the employees their
wages. For this reason DeJonge told the group she was too
busy making phone calls to discuss their paychecks with
them. The group thereupon left, indicating that they would
return in 15 minutes. After conveying this information to
the employees outside. Busald and Jencks went to the lat-
ter's home, where Busald telephoned a congressman's office
and a reporter on the staff of a local newspaper, while
Jencks telephoned the Union's representatives, and in-
formed them of the situation. The reporter thereafter came
to the nursing home and interviewed Busald and other em-
ployees. By 3 p.m. DeJonge succeeded in obtaining the
state moneys so that by 4:30 p.m. Clendinning was able to
distribute the paychecks among the employees. This inci-
dent was subsequently discussed at the third union meeting,
held the same Friday night.
b. The change in sworking conditions on thci thirds .ii
On orders from DeJonge, Richard (Tim) Hopkins. the
charge nurse on the third shift, on August I announced to
the third-shift employees that henceforth they were re-
quired to perform housekeeping chores, such as cleaning
the stairs and hallways, and that they were no longer al-
lowed to read or watch television when they were not busy
with the patients. It appears that while the lessee was oper-
ating the home third shift employees were permitted to read
and watch television when not occupied with their regular
duties and were not required to do housekeeping work.
However, it also appears that the changes made by De-
Jonge were the working rules prevailing when she operated
the nursing home before it was leased.
c. Margaret Busald's termination
Busald was employed on April 20 by the lessee as a
nurse's aide on the third shift, 12 p.m. to 8 a.m..8 and con-
' DeJonge testified that it was not until recently that she was aware that
Busald was in the group which spoke to her on this occasion.
I As an aide, her duties encompassed, among other things. making rounds
at I and 3 a.m. and from 5 to 8 a,m. getting patients up for the day, washing
and dressing them, and serving them their breakfast. The latter period is the
busiest time for nurses aides.
tinued her employment with Respondent until her separa-
tion on August 10 under the following circumstances:
Upon reporting for duty on the Tuesday (August 9) mid-
night shift, Busald informed Hopkins, the third-shift charge
nurse, that she was expecting a personal phone call from
her roommate early in the morning. Two other nurses aides,
Judy Robertson and Beverly Morrisette, were also on duty.
About 1:30 a.m. the expected call came in and was taken
by Hopkins. who informed Busald that it was for her and
that DeJonge was also on the wire., Busald then answered
the phone, and. when she heard DeJonge ask who it was,
she identified herself and stated that it was a personal call.
According to Busald's testimony, DeJonge, nevertheless,
was persistent in inquiring who was on the other end of the
wire and the nature of the call. Busald repeated that the call
was personal and refused to indentify the caller." DeJonge
thereupon hung up and asked Hopkins on the intercom
who was on the telephone, and, after saying that he would
check. Hopkins advised her that it was Busald and, in an-
swer to DeJonge's further inquiry, stated that he believed
that it was an urgent. personal call. Hopkins then informed
Busald of [)eJonge's inquiries. As a result. Busald unsuc-
cessfully tried to reach DeJonge on the intercom to com-
plain about [)eJonge's intrusion into her personal call.
Upset by the foregoing events, Busald advised Hopkins
that ste was quitting and did not have to put up with what
had occurred, obviously referring to DeJonge's above in-
quiries. Although Hopkins suggested that she calm down.
have a cup of coffee, and then talk the situation over with
them, Busald punched out and left the nursing home a little
after 2 a.m.1' Upon her departure. Hopkins called DeJonge
and informed her that Busald had quit. despite his request
that she remain and think it over.
When Busald arrived at her home, about 2:30 a.m.
(Wednesday, August 10). she telephoned DeJonge and
stated that she attempted to reach her before she left the
facility hut received no answer. DeJonge denied that Bu-
said tried, adding that she did not appreciate being awak-
ened by her so early in the morning. Busald then proceeded
to voice her resentment at DeJonge's intrusion into her per-
sonal call and indicated that this was the reason she was
9 DeJonge. the owner oI the nursing home. sccupies a small cottage on the
premises which she uses as an office and living quarters. She testified that she
customarily speaks to third-shift employees from her office about problems
and answers incoming telephone calls. which also ring in her office. although
she dislikes phone calls made in the middle of the night According to itop-
kins' testimony, because of DeJonge's concern over her ll husband. who was
then living in Florida. DeJonge usually would speak to Hlopkins on the
intercom to inquire about an incoming call.
'n DeJonge's testimony concerning this conversation varies insuhstantiall)
from Busald's, and either account leads to the same ultimate conclusion.
11 The foregoing findings are based on the testimony of Hopkins. whom I
find to be a reliable and disinterested witness. Indeed. Hopkins was an open
supporter of the Union who, if disposed to give untrue testimon 3 which I
do not believe he was -would more likely he biased against Respondent
because he himself had subsequently quit its employ, assertedly for unfair
treatment accorded to him. In any event. Busald's account of her departure
would not affect my ultimate determination. She testified that she told tHop-
kins that she wits going home to call DeJonge, that Hopkins asked her
whether she was sure that she wanted to do it, and that she affirmed her
decision because DeJonge refused to answer her calls at the nursing home
Busald further expressly denied telling Hopkins she was leaving the home
permanently, asserting that she left because she was distraught h) the events
that occurred which culminated in )eJonge's intrusion into her personal
telephone call
56
NOR III KIN(SI()WN NIRSING ('AR (N'IF.R
quitting. )elonge denied being aware that it \s as a personal
call and remarked that if she had problems. she could come
in later in the morning, when she (l)e.onge) would be ill-
ing to talk to her. 3lus;ld said that since she slept durin the
dayi. she 'otllt talk to iher on rida when she would come
in for her paycheck. At some point in this con crtsation
Busald also mentioned that she intenled to call (ongress-
man's office concerning Respondent's nursing home with-
out. however. specifying her particul;lar compla;ints.
No ithstanding her indicated decision to quit. Busaid
reported for work on the next midnight shift (Wednesday.
August 10). without any objection from lopkins. Shortly
thereafter Hopkins asked Busald whether she had straight-
ened out her problems. Busald answered in the alirtirmati e.
adding that 'ina (Cutting. another nurse's aide haid sug-
gested that she return to work.' About 2 a.m. or so. De-
Jonge called Hopkins as she customarily did, to ascertain
the number of employees on dutN and adised him that
Busald was no longer in Respondent's employ. When tlop-
kins reported that Busald had come to work l)eJonge told
him to send Busald to her office. which he did. where the
following occurred: DeJonge asked Busald what she was
doing at the nursing home and received her ansver that she
was working. DeJonge, however, declared that she \Aas no
longer employed there. This evoked Busald's inquiry
whether she was fired. )eJonge answered that Busalid had
voluntarily quit, which Busald denied. At this point [)e-
Jonge brought up the subject of various complaints she had
received from her coworkers concerning her lack of coop-
eration in the performance of her duties. A discussion then
ensued in which Busald disputed the accusations and
charged that Hopkins was the only one about whom em-
ployees complained. Hopkins was thereupon summoned to
this meeting. and further discussions followed respecting
Busald's alleged inability to get along with other employees.
In the course of this meeting [)eJonge also denied that Bu-
said previously tried to reach her on the intercom at the
nursing home and again expressed her anger with Busald
for awakening her early in the morning with her telephone
call. Busald, in turn, repeated her resentment over De-
Jonge's intrusion into her earlier personal telephone call,
while DeJonge justified taking the call because it rang in
her cottage. DeJonge also referred to) Busald's refusal on
the telephone to see her Wednesday morning and indicated
her annoyance with Busald's announced intention to corn-
municate with a Congressman's office concerning the nurs-
ing home. The meeting ended with Busald returning to the
nursing home, where she punched out. On a later date Bu-
l The findings concerning the Busald-DeJonge telephone conversation are
based on parts of their testimony which I find reflect what probhahly occurred
and conform to the events that preceded and followed
I' Although at some points in her testimony Busald denied that Cutting
suggested that she return to work. on cross-examinalion she estified that
before she returned to work Wednesday midnight, she ent o utllng's
home. informed her of the early morning events, and was ads ised hb ualling
to report for work.
', These included complaints made by Hopkins to DeJonge before the
personal call episode concerning Busald's work performance and attitude
toward him as charge nurse and fellow worker. In factl. Htopkins had sub-
miuted a list of his complaints to DeJonge which. according to )eJonge's
testimony. she intended to discuss with Busald at 8 a.m. on hursday (Au-
gust Il. Hopkins admitted there was probably a personalit conflict be-
tween him and Busald
saId wetnt to the nursing home to receive her final paycheck
from l)eJonge. Busald never applied for unemployment in-
surance. for the asserted reason that she had not worked
long enough to qualilt
I)eJonge testified that she refused to take Busald hack
because she had xoluntaril) quit and left the fcilit5 during
her shift shorthanded She specifically denied that Busald's
participatiol i the July 29 payday incident. pre' iously sli-
cussed. motisated the separation. Indeed. [)eJonge testified,
she did not recognize usald as one of the employees to
whom she had spoken on July 29.
d . E/lination o paid lch period and /r'e mzuats
On August 12 Respondent enclosed in the paycheck en-
¥elope a notice to employees which, in ettict. eliminated
paid lunch periods and free meals." It appears that while
the lessee operated the nursing home. employees enijoed
those privileges. According to the undisputed testimon of
Deonge. which I credit. it was her policy when she oper-
ated the nursing home before it was leased not to pay em-
plobees for time at lunich or to furnish free meals. It appears
that, as a result of this change. several employ ees ,orked an
extra hall hour to make up for the lost paid lunch period.
e. DnJonge'. Xl.5dtctlc.¥ ItO CtI2ilt' IW i/dcr in ctar/' .u.t r
ul l da' hle/r,, the Septrchr 30 r(,c ,pr'. enllio c/c tion
In early' August Wilder, a cook, had a conversation with
DeJonge when he was in her cottage delivering a meal.
DeJonge initiated the conversation b asking him what he
thought off the Union. When he replied that lie had not et
made his mind up. DeJonge stated that she would ha e to
close the nursing home if the Union came in. because she
could not take in $26 and pay out $28.1' Wilder commented
that he was told that it would not be in the U nion's interest
to close the home dow n. whereupon DeJonge remarked
that therefore there would be no sense having a union if the
employees would not get more mnone). She then named an-
other Rhode Island nursing home, which had recently been
on strike and where the employer fired all 42 of his employ-
ees."' Asserting that she had always been fair with everyone
I)eJonge declared that she knew who was behind the union
campaign and cnically stated that this was a fine way for a
nurse to show her gratitude for what DeJonge had done for
her in sending her tirough nursing school and teaching her
everything she knew. Although she was not named. Wilder
knew that DeJonge was referring to Marian Jencks, in
whose house the Union's organizational meetings were
held. When Wilder suggested that DeJonge was taking the
union campaign too personally and that it was started be-
fore her return. DeJonge replied that she saw no reason to
have to pay for the sins of the former administrator, (len-
dinning.
" The notice coered other mailers as swell
u, Apparently. DeJonge was referring to amount paid hb the State for
medicaid and welfare pallents. Itloweer. )eJonge denied telling anyone that
she could not take in $26 and pay out $28 since at that time she was reim-
bursed $20 29 per da? b) the State
7Suhsequently,. \ilder asked t non Representatlse tamelin whether
this statement cncerning the firing of 42 strikers was true, and amelin
answered that it as.
DI)(CISIONS OF NAIIONAI I.ABOR RE.AII()NS BOARD
A day before the September 30 Board election. at the
insistence of DeJonge, Wilder agreed to discuss the Union
with her. In the presence of her husband. D)eJ.onge asked
Wilder why he was trying to crucilf her. Wilder denied this
accusation, telling her that employees had the right to orga-
nize and to have union representation. In reply to De-
Jonge's statement that she was always lair to everyone. Wil-
der disagreed and alluded to the fact that he never received
the 25-cent increase she had promised him before the nurs-
ing home \was leased. I)eJonge also charged Wilder with
upsetting patients with his union literature, which he dis-
puted, countercharging that it was she who was upsetting
patients by pretending to take action to move out patients,
which will be discussed shortly. [)eJonge disavowed knowl-
edge of such conduct, and Wilder voiced disbelief that she
was unaware of Administrator Maguire's'" orders to trans-
fer the patients. At this point D)eJonge's husband told De-
Jonge that further discussion with Wilder was fruitless. as
he was brainwashed by the Union. As Wilder was leaving
DeJonge. she shouted that Wilder obviously had no con-
cern for her.
f. Respondent's proposed group insurance plan for etnp/loiee.s
In early September Respondent enclosed in the emplox-
ees' paycheck envelopes an announcement on an insurance
company's letterhead addressed to Respondent's employees
under DeJonge's name. It stated, "We are pleased to an-
nounce a new voluntary fringe benefit program to the em-
ployees of the North Kingstown Health Care Center." and
proceeded to present several highlights of the plan. The
insurance premium, however, was to be paid by the em-
ployees themselves, without any contribution from Respon-
dent. A brochure of' this plan was also posted on a bulletin
board in the nursing home. Although DeJonge testified that
she had previously offered insurance benefits to her employ-
ees, in December 1976 or January 1977. when she operated
the nursing home before it was leased, this was a new group
plan for the employees in her employ at the time she re-
sumed operations. DeJonge further testified that she de-
cided to offer the employees the opportunity to subscribe to
this insurance as a result of solicitation by the insurance
company's representatives.
g. Restricted use o'downstairs bulletin hoard
About a week before the September 30 election, Wilder
posted a prounion leaflet on the downstairs bulletin board.
This leaflet was removed the following day by an unidenti-
fied individual, and a notice was posted, signed by Admin-
istrator Maguire, reading. "This bulletin board is to be used
for materials pertaining to nursing directives only." At this
time, however, an insurance brochure, mentioned above,
was also posted. Since it was obviously not a nursing direc-
tive, Wilder cynically wrote "life insurance?" on Maguire's
notice. The insurance brochure was subsequently taken
down. Moreover, it appears that some time in September a
newspaper article dealing with gardening, which was writ-
s Wilder testified that 2 weeks before the election. in a conversation with
Maguire, he voiced his anger with Maguire for his antiunion attitude.
ten by an employee. was posted on this bulletin board, as
were an announcement of a Christmas party in December
1977 and an offer to give away puppies in February 1978.
h. Director *o' Nursing Saccoccio'v reprimland o/ entploTee
Jencks
On or about September II Jencks. an I.PN, was the
charge nurse on duty on her assigned floor. Because the
dishwasher did not show up. Wilder, the cook, tried to ob-
tain the cooperation of other employees to help with wash-
ing the dishes. Jencks was the only one who offered to help,
with the result that she and Wilder shared that job. In the
meantime Jencks made arrangements with those working
under her to perfobrm other functions. When Jencks' dish-
washing undertaking came to the attention of Patricia Sac-
coccio, the director of nursing. Saccoccio called Jencks in
the kitchen and expressed her disapproval of Jencks' wash-
ing dishes, a job which should have been assigned to an
aide. Jencks justified her action on the ground that she
wanted to demonstrate that in an emergency situation, such
as that then presented, it was not above anyone to pitch in.
As Saccoccio recalled the conversation, Jencks stated that
she could do the dishwashing chore more efficiently and
quickly than any aide. In any event. Saccoccio explained
that Jencks, as a charge nurse, had more important respon-
sibilities, being on the floor and with patients.
A day or two later Jencks received the following note,
dated September 12. from Saccoccio. stating, " request
that ou do not assume the responsibility of dishwasher
when you are assigned charge nurse duty on a specific
floor." The note also asked Jencks to sign it and return it to
Saccoccio. There is no question that Jencks is a competent
LPN, never having been criticized for performance. Saccoc-
cio testified that the note was not intended as a warning,
but only to alert her that dishwashing was not part of her
job as charge nurse.' As will later be discussed, it is the
General ('ounsel's position that the reprimand was
prompted by Jencks' union activity. in which it is clear she
was then engaged. Saccoccio, however, denied in her testi-
mony that such was her motivation.
i. hreat to clove nursing home
In the early part of September Administrator Maguire. in
the presence of Director of Nursing Saccoccio, discussed
the Union with Elizabeth O'Keefe, a registered nurse, who
still had doubts regarding the propriety of unionizing
nurses. Maguire expressed regrets that a representation
election was going to be held so soon after he was hired and
before he was able to demonstrate what he could do for the
employees."M Saccoccio, for her part, stated that she could
not work in a union facility and that she would leave if the
1 SaccxciIo testified that at about the time of this episode she had insti-
tuted a disciplinary warning sstem and that the note in question did not fall
into the category of a written warning. I appears that a printed orm is used
in issuing written warnings. Employee rules and regulations, which Respon-
dent issued effective November 23. provide for discharge alter three warn-
ings.
tO Jencks also testified that shortl1 after Maguire became administrator. he
engaged her in union discussions, in which she stated that she was uncom-
mitted
s58
NORTHI KIN(STOWN NURSING (ARE (CENTER
Union were voted in. Two days before the scheduled elec-
tion Saccoccio directed O'Keefe to prepare 16 interagenc
referral forms for the transfer of patients to other nursing
homes, while Maguire ordered her to start packing the pa-
tients' belongings. In response to O'Keefe's inquiry as to
which patients to begin with, Maguire left her and soon
returned with cardboard cartons. which he placed near
O'Keefe's desk with instructions to use them to pack the
belongings of all the patients. O'Keefe. however, disre-
garded those orders. Significantly. no patients were actually
moved out, nor was the subject of transfers ever mentioned
again. Saccoccio admitted at the hearing that she might
have made some calls from the nurses' station to other fa-
cilities with respect to transferring patients.
On the morning of the day preceding the election. Sac-
coccio told O'Keefe that she had received a phone call that
a named patient, who had previously been hospitalized. was
ready to return to the nursing home but that she (Saccoc-
cio) would not accept her "under the conditions that were
going on."
j. DeJonge 's note to LPN Jenlck
The evening before the election Virginia DeJonge's hus-
band, Jay. handed Jencks a note from his wife to the effect
that Jencks was hurting DeJonge and her family and that
she hoped that Jencks "would get . . . [hers] in the end."
Jencks tried to explain her position, but DeJonge's husband
would not listen.
3. Events subsequent to the election
a. DeJongies disparaging remarks about the Union made to
emplovee Brian 14lder
Several weeks after the election. which the Union won,
DeJonge had a conversation with employee Wilder in De-
Jonge's office when he delivered her meal. Pointing to a
number of union leaflets on her desk, which included some
with Wilder's name on them. DeJonge declared that they
contained a lot of lies, specifying benefits to which a leaflet
referred as not enjoyed by Respondent's employees. Wilder
denied the accusation. During this conversation, DeJonge
stated that in her opinion, unions were communistic; that
as soon as Union Representatives Hamelin and Nee ob-
tained a contract, the employees would no longer see them:
and that Hamelin had told her privately that the only rea-
son he was organizing Respondent's employees was to col-
lect their dues. Wilder disputed her remarks about Hamelin
and brought up the subject of the wage increase she had
once promised him and on which she had reneged. Hamelin
also credibly denied, without contradiction, that he ever
discussed with DeJonge his reasons for organizing Respon-
dent's employees.
b. The October 27 disciplinari' warnings given to etplovee
Wilder
Brian Wilder was employed at the nursing home from
December 1976. while Virginia DeJonge was initially in
possession, until February 7, 1978. during the period De-
Jonge had resumed control from the lessee. first as a dietary
aide and subsequently as a night cook under Administrator
Maguire. He was an active proponent of the Union and was
instrumental in introducing that organization to the em-
ployees. During the preelection period he engaged emplo-
ees in union discussions: wrote and signed several leaflets in
support of the Union: posted them and other union litera-
ture on the walls, bulletin boards. and other places through-
out the nursing home: and participated in the distribution
of such propaganda among the employees in the nursing
home."
On October 27 Wilder received two written disciplinary
warnings under circumstances related below. The first
warning was for not wearing white pants and a cook's hat
and for not flattening empty food cans before their disposal
in order to conserve space in the garbage containers. he
second warning given to Wilder was for calling l)eJonge
"one of the scumbiest Isic people he's ever met."
Concerning the first warning. it appears that the state
health department's rules and regulations require that
cooks and other kitchen help wear white uniforms with hats
for men and hair restraints for women?2 Although Respon-
dent similarly imposed this uniform requirement after De-
Jonge repossessed the nursing home.2 it was rather lax in its
enforcement. However, in a postelection performance
evaluation of Wilder by Administrator Maguire. Maguire
noted that Wilder's personal appearance was "[flair," add-
ing that Maguire "would like to see [Wilder] in white uni-
form. This is a must." Wilder testified that prior to this
evaluation he wore full whites irregularly. but following the
evaluation he bought a second pair of whites so that he
could wear whites every, day. However. he admitted that on
October 27 while working in the kitchen he did not wear
white pants or a hat: that DeJonge entered the kitchen and
asked him why he was not wearing white pants and a hat;
that he explained that he was unable to get to the laundr
to wash his soiled white pants: that as for not wearing a hat,
there were no hats in stock, and a new order had not yet
come in: that DeJonge replied that the hats had come in
and showed Wilder an unopened box of hats in a cabinet:
and that Wilder thereupon took a hat out of the box and
put it on. On this occasion. DeJonge pointed out to Wilder
that he also was not crushing cans before throwing them in
the garbage can. as the kitchen help was supposed to do.
Wilder apparently did not deny this charge. Upon leaving
DeJonge informed Wilder that she might issue a written
warning for the foregoing infractions. It appears that two
nights previously DeJonge had also spoken to Wilder about
his soiled uniform.
ni Wilder testified that before the election he was one of seven acti isis and
that there were also a large number of other union smpathizers
2 Originally. Respondent permitted women to use a hair spra) instead of
wearing a hairnet. until a .tate health inspector In about October informed
Respondent that a hair spra) was not an adequate subsitute for a hair
restraint.
23 The nitial instructions to the kitchen help regarding wearing a white
uniform were given orally upon their employment. and thereafter at various
times the) were reminded of this requirement,. This requirement was first
embodied in the written rules which became effective November 23. 1977.
and provided that "a clean white uniform and shoes are required" for
kitchen personnel and that "lc)aps or hairnets might he worn all times." G.C
Exh. 29 shows that on December 27. 1977. a cxook, Gerald C'olaccio. received
a written warning Ior not weanng a hat and for other Infractions.
59
1) ( ISI()NS (ot NA I IONAI.L \B()R RA I IO)NS BOARI)
\ sho-It \ ilt lt ci l W i' SSIi lider s snnon I) .lloIge's
tffice. hereL I)Jongc handdct hinti a written warning ie-
spectling is ahoe-en ltioned inlractioIns. 24 Alter reading
the Alrllng Wilder signed it and noted his rsponse. I here-
upon. Wilderl angrill ctltici/Cd I)e.lllnge r callioslI giving
Elizabeth ()'Keeft. a registered nIlIIse in Respondlenlt's cmll-
plo. horn he xas dating, fialse results of a venereal disease
(VI)) ex'aintiollitill wxhich ()'Keei h11ad taken in connection
with her job. idd llg that hcl sa nothing particularl lnlun
about l)cJIt e's cciliet antil th1i t it hadit upset him. Whell
D)eJonge riefised to discuss the ilatter farther, despite
Wilder's insistence that lhes do. Wilder. on departing, de-
clared that [)e.longc was "one of the scummiest people [he
had] e er met in [his ]ile." Prior to this episode l)eJonge
had told O'Keefe that the false VD) report was only a joke
and that ()'Keefe had no sense of humor for t;aking it seri-
ously. Subsequent to the Wilder confrontation DeJonge
apologized to ()'KeefH fir upsetting her.
About I() minutes after Wilder left DeJonge. Wilder was
again summoned to I)eJonge's office, where she handed
him a second written warning, which noted that Wilder had
"called his employer one of the scumbiest [sic] people he's
ever met." Fearing that he would lose his job. Wilder de-
nied that he had made the quoted insulting remark and
stated his denial on the warning report." DeJonge contra-
dicted the denial, commenting that an office employee had
also heard him make the remark in question. In reply to
Wilder's inquiry of the employee, the latter confirmed De-
Jonge's accusation. A few minutes later DeJonge called
Wilder back and advised him to reconsider his denial and
that she had arranged a meeting for the next day' October
28. to discuss the matter further with him in the presence of
Administrator Maguire. In the meantime Wilder consulted
with Union Representative Hamelin who advised him to
tell the truth. At the subsequent scheduled meeting Wilder
admitted that he had lied and apologized to DeJonge for
making the insulting remark. In addition. at DeJonge's re-
quest and after conferring with Hamelin, he wrote his apol-
ogy on the warning report.26 Wilder then returned to work,
and the matter was no longer pursued.
4. November events
a. DeJonges Conversation with Emplovee Jencks.
On October 31. following the Union's certification, Re-
spondent held its first bargaining session with the Union.
Shortly thereafter DeJonge engaged Jencks. an LPN, in a 2-
24 The warning stated: "No cook's hal. not in ull uniform (red pants).
Spoken to about uniform being dirty 2 nights ago. Did not look for hats. No
time to go to laundry. Metal cans not flattened."
Wilder noted his response on this warning as follows: "Unaware that new
hats had come in we'd run out. Unopened box was there. Uniform was
clean two nights ago though a stain or two didn't come out completely in the
wash. Metal cans have not been flattened by anyone since I worked there.
Have not had can flattening mentioned since two administrations back in
May."
25 Specifically. Wilder wrote: "I did not say this. I)eJonge has a suspicious
nature but I feel I was 'set up.' I came and got warning and was not happy
about it but I never said that."
26 Specifically. Wilder wrote: "I have apologized for what I said about
which was said in the heat of anger. I did not mean it and apologize."
hour conversation in the course of which she asked Jencks
whNat she thought would be a fair pay scale for everone in
the nursing home and handed her a piece of paper on which
to note the figures. When Jencks started with $2.30 as the
beginning ratec. D[eJonge injected that this rate would be
$2.0s in Ja nuary and told her to take the paper home and
think about it. l)eJonge also commented that Jencks could
stop the I nion it'f she wanted to. but Jencks replied that she
did not know how to do it. l)eJonge also told Jencks that
she had high hopes for her and that if she watited to return
to school, she could become a nurse or even a director of
nursing. Probably in the same conversation. IDeJonge made
reference to Jencks' request of Director of Nursing Saccoc-
cio for a Iransfr to the day shift, 27 stating. in effect. that she
"hoped [Jencks] realized that [she] would probably be a
night supervisor so [that she] wouldn't be a part of the
union." DeJonge further remarked, in apparent reference to
union activity, that she could understand why people like
Bett5 (Elizabeth) O'Keefe and Marcia Moriarity were
doing this to her but that she could not understand why
Jencks was. In her testimony DeJonge denied threatening
to transfer any employee out of the unit or that she dis-
cussed promoting Jencks to a supervisory position.
hb. Restricted usc of upvastirv bulletin board for posling union
niotJic' and licerature
Respondent on November 14 posted a directive signed by
[)eJonge as administrator that "[n]otice of union activity
shall only be posted on bulletin board in upstairs lunch
room only after approval signed by the management. No-
tices elsewhere will be subject to disciplinary action. Also.
use of working time, stationary or other properties of the
North Kingstown Nursing ('are Center will be subject to
disciplinary action." Another notice to employees was
posted in I)ecember 1977 or January 1978. stating. among
other things. that "[i]f the Bulletin Board is used not ac-
cording to regulations posted it will be removed."
c. Promulgation and posting of?/ "Employee Rules and
Regulations " and Entplvcee Code of' (Cnduct"
In September, shortly after Saccoccio was employed by
Respondent as director of nursing, she drafted and posted a
two-page set of rules and regulations which, with some revi-
sion, substantially embodied existing rules and practices
concerning employees' responsibilities and methods of op-
eration.'? It appears to be a State Health Department re-
quirement that standards be established by nursing homes
which are to be conveyed to their staffs. On November 23.
without consulting the Union. the employees' certified bar-
gaining representative. Respondent unilaterally promul-
2 t he evidence indicates that Jencks had requested Sacscccio a transfer
ito the day shift and that although Saccoccio pronmised her the transfer, with
DeJonge's approval, ater Jencks had submitted her resignation, Saccccio
changed her mind because of objections if other employees. Jencks. there-
upon. in earls December quit her job with Respondent.
2s Saccoccio also customarily posts directives respecting employees' per-
formance iof their duties and responsihilities. treatment of patients. conduct,
and dress. Moreover, it appears that Respondent has alwa!s had in effect a
"policy book" which "explains all the things. such as emergencies.
NORTH KINGSTOWN NURSING CARE CENTER
gated and posted two sets of rules to replace the previously
posted ones. The first set, entitled "Employee Rules and
Regulations," was a four-page document dealing with per-
sonnel procedures, policies, and terms and conditions of
employment and included the application for employment.
interviews, appearance, conduct, uniform requirements.
timeclock. raises, evaluation, breaks, and so on. The second
set of rules, entitled "Employee Code of Conduct." lists 41
grounds for discharge and states that the code of conduct
was promulgated "in order to protect the right and safety of
all employees and patients at North Kingstown Nursing
Care Center." One of the grounds for discharge, as pro-
vided in rule 20 of the code, reads as follows:
Soliciting, collecting funds, and/or circulating litera-
ture of any nature on Nursing Home property during
working hours without the approval of the Administra-
tor.
5. Subsequent events
a. Disciplina'r warning issued to employee O'KAteflf
Elizabeth O'Keefe. a registered nurse employed at the
nursing home since May 1977, became active in the Union
after the election, when she was appointed to the bargain-
ing committee to negotiate a contract with Respondent.
She attended the first bargaining session on October 31 and
the meetings held in December and thereafter. She also par-
ticipated in the drafting of a letter dated January 17. 1978.11
sent to DeJonge and Director of Nursing Saccoccio which
was highly critical of Saccoccio's performance and lack of
concern for her responsibilities, asserting that she acted in
an unprofessional manner and created working conditions
detrimental to the staff and the patients. This letter con-
tained the signatures of 21 employees. headed by that of
O'Keefe, who had circulated the letter among the employ-
ees at work during the week of January 20. 1978.
On January 31. 1978. Saccoccio issued a written warning
to O'Keefe dated January 26 for leaving unlocked on Janu-
ary 25 and 26 medication cabinets containing cubicles
where patients' medications were stored and for leaving
medication and eye drops on the nurses' desk. ' The facts
concerning these incidents are as follows: On January 25.
" Other members of the bargaining committee were employees Brian Wil-
der. Marcia Moriarity. Marian Jencks. Judy Robertson. and others.
0 O'Keefe testified that the letter was actually composed by Marcia Mori-
arity, an LPN and an active union supporter. Moriarity was highly regarded
by management, and, for all that appears, she was not subjected to discrimi-
natory treatment on account of her union activity.
On January 18 the Union also sent a letter to the division of Licensure of'
the State Department of Health, which complained about the conditions at
the nursing home and particularly cited the conditions created by the snow-
storm of the past weekend. when the owner. administrator. and director of
nursing were not present during the emergency. The Division of Licensure
sent Saccoccio a copy of this letter, to which she replied n January 23. In
her letter she expressed resentment at the attack made (in her reputation and
professional standing and contradicted the charges made about her conduct.
B The written warning described the offenses as follows:
I. Medication cubicle (all three cupboards were left wide open and
unlocked and Mrs. O'Keefe was not in the medication area).
2. Medication cubicles were left unlocked on January 25th but doors
were shut and Mrs. O'Keefe was at lunch.
3. Medication and eye drops found on nurses' desk. easily accessible to
patient's reach.
when O'Keefe returned to her desk after having lunch
across the hall. she encountered Saccoccio, who popped
open the medication cupboard doors with her fingers to
demonstrate that O'Keefe had left them unlocked. saying
that she did not "like this." The next day. January 26, while
preparing her morning medications at her desk. O'Keefe
found that she needed to refill an order from stock supplies
in another area. She asked Brian Wilder. a cook. who as
then making a telephone call at the nurses' station. whether
he would be there a minute. Apparently. he answered in the
affirmative. and O'Keefe left to procure the needed pills.
When she returned, Saccoccio was standing at the desk.
Indicating that the cupboards were unlocked. Saccoccio de-
clared that she did not want to see that again. O'Keefe
thanked Saccoccio, and nothing firther was then said about
the matter.
On January 3 1. however, O'Keete was summoned to Sac-
coccio's office, where Saccoccio handed O'Keefe the written
warning mentioned above. In answer to O'Keefe's inquiry.
Saccoccio stated that she did not want to discuss the warn-
ing with her, hut she wanted O'Keefe to read and sign it
and to be aware of the problem. O'Keefe asked for time to
consider the warning and take it with her in order to add
her response to the charges. Saccoccio agreed. Later in the
afternoon O'Keefe returned to Saccoccio the warning with
her remarks noted on it.l' and both women discussed the
matter. O'Keefe denied she was careless in leaving Wilder.
whom she considered reliable. to watch the medicinle cup-
boards. Saccoccio replied that Wilder was not an "appro-
priate person" to watch the cabinets. In response to the
charge of leaving eye drops on the desk. O'Keefe stated that
that was the wan everybody else operated and that the hot-
tles were empty," awaiting refills from the pharmacy. The
conversation ended with O'Keefe charging that the warning
was retaliator. It also appears that January 25 and 26 were
not the onl' occasionts when Saccoccio spoke to O'Keefe
about lea'ing the medicine cabinets unlocked. Just before
the previous ('hristmas holidays she had a similar conversa-
tion with O'Keefe and cautioned her when Saccoccio no-
ticed that O'Keefe had not locked the medicine cabinets.
Moreover, there is no question, and O'Keefe admitted it in
her lestimony,. that it was Respondent's policy that unat-
tended medicine cabinets must be kept under lock and kes
so that medication would not be accessible to patients and
unauthorized persons and that this policy conformed with
State Health Department regulations and professional
practices. Although O'Keefe testified that she saw other
nurses occasionally leave cabinets opened and depart front
the area, there is no evidence that these delinquencies came
to Saccoccio's or other supervisory attention.
2 O'Keefe stated on the warning:
I. While pouring my a.n,. meds, I left the med closet under the watchful
care of a trusted fellow employee to obtain needed stock drugs in an-
other area - I don't feel I was careless but made a conscious tilne sasng
decision to facilitate speedier administering of medicine after having
received a lengthy report from a new night nurse.
2. I ate lunch in full view of m medication closets
3. Medication bottles were those that were empty and waiting for reor-
der from the pharmacy.
I According to Saccoccio's testimon?. some ee drop bottles were empty.
while others were not
61
DE)CISIONS OF: NATIONAL. LABOR RELATIONS BOARD
Saccoccio denied that she was influenced by O'Keefe's
union activity in warning her about unlocked medicine
cabinets.
b. Wildcrv discharge
As previously indicated. Wilder was an active union ad-
herent and a member of its bargaining committee. There is
little doubt that his activities came to Respondent's atten-
tion early during the organizational period. On February 7,
1978, Wilder was discharged under these circumstances:
Due to one of the heaviest snowstorms experienced in the
State, which began in the afternoon of February 6, Wilder
and other employees remained in the nursing home over-
night after their shift normally ended. Conditions created
by this storm were such that employees scheduled to come
to work the following morning were unable to report. Con-
sequently, those already in the nursing home assumed the
duties of the absent employees. At 7 a.m. on February 7
Wilder punched in, although his regular shift was not
scheduled to begin until 3:30 in the afternoon, and he pro-
ceeded to help out in the kitchen. After breakfast was
served, he began setting up trays lor lunch and to perform
other kitchen chores. About 9 a.m. Bob Armstrong. I)e-
Jonge's son. entered the kitchen and asked Wilder to help
him shovel the snow from the walk from [)eJonge's cottage
to the nursing home. Wilder agreed to do hall of the walk.
while Armstrong stated he would do the other hall:'. When
Wilder indicated that he would be right out, Armstrong
left. In the meantime, Wilder continued to work in the
kitchen. Shortly thereafter, Assistant Director of Nursing
Higgins entered the kitchen and told Wilder and the full-
time cook, Al Venditto, that DeJonge wanted them to
shovel the path from the cottage to the nursing home and
that she did not want her son to do it because he had a bad
back. Irritated by this request, both Wilder and Venditto
stated that they could not shovel the walk, because they,
too, had bad hacks. Higgins thereupon departed.
Several minutes later Wilder received a telephone call
from DeJonge, who told him that she wanted him to shovel
the walk from the cottage. Wilder replied that although he
was very tired and did not like the way he was being asked,
he would do it. This reply angered DeJonge and provoked
her to say, among other things, that Wilder did not have to
like the way he was being asked. DeJonge concluded the
conversation with the declaration that either Wilder would
shovel the walk, or she would do it herself. In response.
Wilder told DeJonge to do the walk herself. On this note
Wilder punched out and left with employee Mary Aughin-
baugh, who had previously requested Wilder to drive her
home. As Wilder was preparing to drive away he was ap-
proached by Armstrong, who told him that he didn't think
he (Armstrong) was obnoxious in asking Wilder to help
shovel the snow off the walk. Wilder answered that his re-
marks to his mother were not directed to him. Wilder then
offered to shovel the snow for him but not for his mother.
Armstrong declined this offer.
After driving employee Aughinhaugh home. Wilder re-
turned to the nursing home to wait in the lounge for his
regular 3:30 p.m. shift. About 10 a.m. DeJonge called Wil-
der into the hallway and told him to shovel a path from the
nursing home to the generator so that the generator would
be accessible in case it needed maintenance work. In the
course of the conversation, DeJonge angrily declared that
either he could shovel a path, or he could leave. Wilder
replied. "[Fline." got his coat, and went outside and started
his car up. Assertedly fearing that this was a subterfuge to
get rid of him. Wilder turned off the engine and went back
to DeJonge, who was then on the telephone describing,
probably to her attorney, the verbal exchange between Wil-
der and her. Wilder interrupted the telephone conversation
to ask DeJonge where the shovel was. DeJonge inquired
why he wanted it. When Wilder answered that he was going
to shovel the path to the generator,3 4 )e.longe stated that it
was too late, that he had walked out and failed to help her
in an emergency. and that "we can hear your side in a
Labor Relations court on this issue." 5 Wilder nevertheless
insisted that he was there to help out. As he was departing,
Wilder turned back and informed DeJonge that he in-
tended to report for work on his regular 3:30 p.m. shift.
I)cJonge told him not to return, because he had walked out
and quit and failed to help out in an emergency. Wilder
denied that he was quitting and repeated his intention to
return to work his regular 3:30 shift. Again l)eJonge di-
rected him not to. Wilder then went to the lounge and in-
formed two employees of his willingness to return to work
and DeJonge's refusal to permit him to do so. At this point
DeJonge ordered Wilder to leave or to stay in a room by
himself. Wilder thereupon left. A fewk days later Wilder re-
turned to discuss what he mistakenly believed to be an error
in his paycheck and to obtain a stub which was not at-
tached to the check. On this occasion DeJonge warned Wil-
der not to come to the home any more except to visit pa-
lients.
D[e.onge testified that the only reason she terminated
Wilder was his refusal to honor her request to shovel the
walk to the generator in an emergency situation and that
she took this action after consulting her attorney. She also
testified that the prior written warnings Wilder had been
given, which ere discussed earlier in this Decision, played
no part in his discharge. She further conceded that Wilder
was otherwise a dependable employee with no record of
absenteeism.
c. O'AKeei' s peOrlrntman evaluation
Soon after Saccoccio entered Respondent's employ on
September I as director of nursing in charge of all nursing
personnel, some 27 or 28 in number, she undertook to make
changes in existing procedures and to introduce new proce-
dures and methods of operations and counseled these em-
ployees as to hat she expected from them. Apparently,
Saccoccio was not very popular with the employees. either
34 Wilder testified that he offered to shovel the walk. His testimony was
corroborated. in part, by Cheryl Briggs, a registered nurse at the nursing
home. who testified that she overheard Wilder tell DeJonge in the hallway
that he ould shovel the walk for her. DeJonge denied that Wilder made
such an offer. I credit Wilder's corroborated testimony.
"5On January 13. 1978. the Union had tiled an amended unfair labor
practice charge in Case I CA 13947. alleging, among other things, that in
late October or early November 1977 Respondent had issued two, written
warnings to Wilder because of his support ol the Union
62
NORTH KINGSTOWN NI[RSING (ARE C('ENI'FR
on account of these changes or on account of the wa'5 she
functioned. Prompted by the inadequac 5 of the inlormation
contained in files of the nursing personnel and the require-
ment of the State Health Department that these employees
be evaluated periodically. Saccoccio initiated a system of
performance evaluations. ' 6 Because Saccoccio was not suffi-
ciently familiar with the employees' performance to evalu-
ate them in early September. she directed the licensed
nurses to evaluate each other and the aides working under
them and then studied the results. Saccoccio also adopted
the policy of reevaluating employees every 6 months or
sooner if circumstances required it. such as where the indi-
vidual was a new employee or where an employee's evalu-
ation was poor. Moreover. she determined that she herself
would evaluate the nursing employees in 6 months, when
she would be in a better position to assess their perform-
ance. Accordingly, in the latter part of February 1978 she
began her 6-month evaluation of the nursing personnel in
Respondent's employ since the previous September. includ-
ing O'Keefe. a registered nurse for 16 ears, but was unable
to cover all the employees because of the intervening hear-
ing in this case. Complaint is made only with respect to the
evaluation of O'Keefe alleged to be discriminatory.
Upon reporting for work on the morning of FebruarN 28,
1978. O'Keefe left a note in Saccoccio's message envelope.
stating that she was subpenaed to testify in court on March
8 and needed time off to attend the trial. An hour and a half
later Saccoccio acknowledged to O'Keefe that she had re-
ceived this note and shortly thereafter posted a notice on
the bulletin board, requesting O'Keefe and three or four
other licensed personnel to contact her by March I to ar-
range for an appointment to be interviewed for a perform-
ance evaluation. When O'Keefe had the occasion to speak
to Saccoccio on the telephone in the afternoon, she inquired
when Saccoccio wanted to see her for the evaluation. Sac-
coccio stated she was ready at that time. and O'Keefe went
to Saccoccio's office. It appears that, in addition to
O'Keefe, Saccoccio interviewed and evaluated three other
licensed nurses on the same day and a number of others on
subsequent days.
At her interview, Saccoccio handed O'Keefe her "Em-
ployee Evaluation Report." which Saccoccio had prepared
the day before. The evaluation included an "Overall Rat-
ing" of "Substandard But Making Progress." the second
lowest category out of five categories, the lowest being "Un-
satisfactory," and a statement that O'Keefe was to be
placed on 2 weeks' probation, with the next evaluation
scheduled for March 14. 1978. In an explanatory note. Sac-
coccio wrote: "Some progress has been noted in the com-
plete follow through of pt's [patient's] progress notes, tran-
scribing orders. Still not completing special assignments as
quickly as could be done. Supervision of N. [nursing] aides
could be more thorough. Takes more than necessary
"In the first set of Employee Rules and Regulations promulgated by
Saccoccio in about September provision was made under the item of raises
that "All employees will be evaluated every 3 6 months b all other employ-
ees he or she works with and charge personnel." This provision was contin-
ued in the revised Employee Rules and Regulations which became effective
November 23.
amount of' time t give medication thus causing her to stay
on dutN extra-time to complete special assiginments."'7
In an additional note to the c'aluation, Saccoccio stated
that she flt that O'Keefe "has the abilit to become orga-
nized and more efficient if she tried harder to apply her-
sel'." In the ensuing discussion of the evaluation, O')Keefe
voiced disagreement with it. while Saccoccio justified her
conclusions. he interview ended with Saccoccio granting
O'Keefe's request to take the evaluation report with her in
order to write her response and to make a cop of the
e,aluation. he response. as it appears on the evalu;lation
report. states: "I neither agree with or feel the evaluation is
lair I don't feel that some of these criticisms ha' e actuall b
ever been concretely established."
Concerning O'Keefe's perform;ance. Saccoccio credibls
testified, without substantial contradiction, that on various
occasions before the above evaluation and interview. she
discussed with O'Keefe her deficiencies and counseled her
on how to improve and that she (Saccoccio) observed some
improvement in the performance of' certain aspects of her
duties. In ftact, in her testimon> O'Keefe admitted that
there was supervisory dissatisfaction with some aspects of
her work and that Saccoccio previously criticized her for
failing to complete special assignments in time and for lea-
ing medical cabinets unlocked. O'Keefe further conceded
that she was told by Saccoccio to improve her "organiza-
tion" and that Saccoccio continually urged her to get more
work done. At the hearing O'Keefe attributed her inabilit
to accomplish more than she did to the "difference in priori-
ties" between Saccoccio and her. O'Keefe also admitted
that Saccoccio and eJonge had spoken to her bout the
time she spent passing out medication to the patients. How-
ever. it is undisputed that O'Keefe had an excellent rapport
with patients, being alert to their emotional needs., for
which Saccoccio and other supervisors complimented her.
7 Under the heading "Rating of Emplo),ee." Sccoccio stated the follow-
ing
A. Qualit, of VWork: t'ould be better
B Quantit, of \,ork: nsatsfactors
C. Personality: SaitsactorD
D. Personal A\ppearance: Could be better
E. Attendance (kOccasionall lard
F. Dependabhllit Satlsfactors
The next day. March . O'Keefe as esaluated hby Assistant Director of
Nursing Higgins. with whom O'Keefe concededly had a god relationship
In this evaluation Higgins gave O'Keete an "Oserall Rating" of "Substan-
dard But Making Progress." In the part of the evaluation entitled "Rating of
Employee". Higgins made the ollowing comments:
A. Quality of Work: satisfactory-excellent especiall) tending emotional
needs of pts [patients].
B. Quantity of Work: unsatisfactory has been able only to do basic
minimum care passing meds) unless specially assigned other work
Seems to have some diff. difficultyl being charge nurse
C. Personalit): satlslfctor
D. Attendance: satlslactory excellent
E. Dependabilit: dependabl) late'
As her answer to Higgins' evaluation. O'Keefe wrote on this report that
she "cannot give nursing care and take care of m spcial assignments hen
Ishe isl so ften left in the afternoon alone on the floor or made to share an
aide [ithj another floor." I)uring her interview with Higgins concerning her
rating. O'Keefe testified. she told Higgins that she felt as frustrated in not
being able to get her paperwork done as Higgins and Sacc.ccilo were in
finding it not done. attributing this situation to understaffing. O'Keefe also
told Higgins that her cntinuous lateness was due to a problem she had in
getting her children off to schxol.
63
I)[('ISIO()NS OF NII()NAI\. I.ABOR RIlAlI()NS BOARD)
Saccocclo also testified that ()'Keefe was a hard worker and
did not loaf on tile job. Moreover it is tincontradicted that
about a week before her evaluation ()'Keefe was com-
mended for the good job she did in filling out a new pa-
tient's admission lorrll and for the way ()O'Keeie conducted
herself during a fire drill held on ehru;arv 2. In addition. it
is clear that, as ()'Keee testified. she received a raise the
latter part of' ehruarN. According to Saccoccio. she had
recommended this raise but could not testilf offhand to the
amount or the date it was given except that it was at ia time
when most employees were granted raises after a certain
period of time in Respondent's employ and it' they were
qualified.
Saccoccio testified that she had no knowledge of the rea-
son why O'Keefe was subpenaed and that she herself was
unaware that she was involved in this case or that she
would be subpenaed by the Gieneral Counsel to be a witness
until March 5. when she received a subpena by registered
mail, although she had been interviewed by a Board agent
the previous February 15. Saccoccio further categorically
denied that her evaluation of O'Keefe's job performance
was in any wise influenced by O'Keefe's union adherence.
Indeed. there is evidence that other aggressive supporters of
the Union such as Marcia Moriarity, an LPN. who was
concededly well thought of by Respondent's supervisors
received good evaluations. Moriarity was evaluated the
same day as O'Keefe. receiving an overall rating of'"Above
Average."
C. ('o/ctluding F'i'ndtl'ngs
I. With respect to Respondent's alleged interference with
its employees' organizational efforts and its alleged
preelection misconduct
As discussed above. Respondent on August 1. within a
few days after repossessing the nursing home, changed cer-
tain working conditions on the third shift prevailing while
the lessee ran the home by requiring the employees to per-
form limited housekeeping chores and by no longer permit-
ting them to read or watch television when not busy with
patients. In addition. on or about August 12 Respondent
eliminated the paid lunch period and free meals for all em-
ployees which they enjoyed under the lessee. These changes
were but a reinstatement of working conditions which pre-
vailed when Respondent operated the nursing home before
it was leased. I find, contrary to the General Counsel, insuf-
ficient evidence to warrant a finding that Respondent's ac-
tion was motivated by a desire to undermine the Union's
organizational efforts or to defeat the Union at the polls, in
violation of Section 8(a)( I and (3) of the Act. Rather, Re-
spondent's conduct was consistent with management's as-
serted legitimate aim to make its operation more efficient
and profitable. Indeed. the record does not clearly establish
that on August I Respondent was even aware of an organi-
zational campaign. Accordingly. these allegations of the
complaint will be dismissed.
However I am in partial agreement with the General
Counsel that Respondent engaged in other conduct de-
signed to undermine the Union's efforts to secure certifica-
tion by winning a Board election. Specifically I find that in
a convcrsesition with employee Brian Wilder which Respon-
dent's owner. Virginia DeJonge. had with him in early Au-
gust. I)eJonge interrogated Wilder regarding his union
views and coupled the interrogation with a threat to close
the nursiing home if the Utnion came in because it would
cost too mnuch to operate a unionized establishment; im-
pliedlN threatened to discharge employees if the, engaged
in a strike, referring to a recent strike at another nursing
home where the employer terminated all 42 of' his striking
employees' and declared that she knew who was behind he
I nion's campaign, implying it was Marian Jencks an LPN
at the home, thereby giving the impression of surveillance.
In another conversation with Wilder, a day before the Sep-
tember 30 scheduled Board election. DeJonge resumed her
interrogation of Wilder concerning the Utnion and accused
him of trying to crucify her. Clearly, eJonge's interroga-
tion of Wilder, coupled as it was with threats to close the
nursing home and to discharge employees for supporting
the Union. and her giving Wilder the impression of surveil-
lalice of union activity constituted interference. restraint.
and coercion of employees in the exercise of their guaran-
teed self-organizational rights to select a union to represent
them. and Respondent thereby violated Section 8(a)( I) of
the Act.
Similarly violative of Section 8(a)(1) of the Act is Re-
spondent's ofler to its employees of a group insurance plan
as "a new voluntary fringe benefit program." Although em-
ployees would be obligated to pay the entire premium un-
der this plan. it would obviously he less than they would be
required to pay if they sought the insurance as individuals.
I find that the offered insurance plan was a fringe benefit-
so regarded by Respondent itself calculated to dissuade
the employees from supporting the Union at the polls.'"
Also constituting thinly veiled threats to close down the
nursing home if the Union won the election were the orders
of Director of Nursing Saccoccio and Administrator Ma-
guire issued to employee O'Keefe a registered nurse at the
nursing home. 2 days before the scheduled Board election.
As previously discussed. Saccoccio directed O'Keefe to pre-
pare fiorms for the transfer of a large number of patients to
another facility. while Administrator Maguire ordered
O'Keefe to pack the belongings of all the patients in prepa-
ration of their transfer. In addition. Saccoccio informed
O'Keefe a day before the election that Respondent would
not accept the return of a named patient who was being
released from a hospital because of "the conditions that
were going on" at the nursing home. There can be no ques-
tion that the foregoing conduct of Respondent's top officials
tell within the proscription of Section 8(a)( 1 of the Act."
Indeed. that the unprecedented orders were only intended
to deter employees from voting for the Union is indicated in
the timing and the fact that Respondent actually never ef-
fectuated any transfers.
In view of Respondent's above conduct found to be vio-
lative of' Section 8a)( I) of the Act, I find, as the General
is Respondent apparently made no reply to the Lnion's charge in one ol
its distributed circulars that the insurance offer was being made to influence
enpltoree votes.
3. It is noted hat Respondent did not disavow the tnion's charactiriza-
ionn in its campaign posters of Respondent's foregolng conduct as threats ol
C I s ure.
64
NORIH KINGS1OWN NURSIN(G (ARE ('ENTER
Counsel contends. that DeJonge's note to employee Jencks
the evenine hefore the election that Jencks was hurting her
and her family and that DeJonge hoped that Jencks "would
get [hersj in the end" amounted to an implied threat of
reprisal for her union activities. Accordingly. the note, too.,
violated Section 8(a)( 1}.
On the other hand. I am not convinced that Respondent
interfered with the employees' exercise of their self-organi-
zational rights in violation of Section 8(a)( I ) of the Act h
barring the posting of union material on the downstairs
bulletin board reserved for nursing directives about a week
before the election. It is settled law that the Act does not
grant employees or their unions the right to use comlpan\
bulletin boards to post notices in furtherance of their or-
ganizational efforts.' While there are circumstances where
such a restriction might he viewed as a discriminatory inter-
ference with the Union's and employees' right to communi-
cate with each other, the record does not necessarily estab-
lish that this is the case here. Instead, it is equally
reasonable to infer that the exclusive use of the downstairs
bulletin board was designed to serve management's need
for a vehicle whereby to transmit nursing directives unham-
pered by the posting of other material on the bulletin
board. Moreover, apart from the fact that there is no evi-
dence that use of the upstairs bulletin board was similarly
barred to the Union during the election period, it is clear
that the Union and employees posted their propaganda on
the walls and other places throughout the nursing home.
where they also distributed union leaflets among the em-
ployees. The fact that before the election Respondent
posted an insurance brochure on the downstairs bulletin
board, which it removed shortly after its posting when its
attention was called to the fact that the brochure was not a
nursing directive, or the fact that someone posted a newspa-
per article dealing with a gardening project which was writ-
ten by an employee does not show that Respondent made
its downstairs bulletin board generally available for non-
company matters or such disparate treatment as to warrant
a finding that the denial of access to the Union and employ-
ees to this bulletin board amounted to unlawful preelection
conduct on Respondent's part.41 The cases cited by the
General Counsel to support his position are factually distin-
guishable. Accordingly, the relevant allegations of the com-
plaint will be dismissed.
The complaint also alleges a violation of Section 8(a)(l)
in Respondent's posting of a directive on November 14.
following the Union's certification, that reads. in part. that
"[nlotice for union activity shall only be posted on bulletin
board in upstairs lunch room only after approval signed by
the management. Notices elsewhere will be subject to disci-
plinary action." In another management announcement to
employees, posted a month or two later, it was stated that
"[i]f the Bulletin Board is used not according to regulations
posted it will be removed."
4 Eastex Incorporated, 215 NLRB 271. 272 (19741: cf. Nugent Servece. Inc..
207 NLRB 158, 160-161 (1973).
41 Nor is Respondent's downstairs bulletin board prohibition during the
election campaign illegalized by the fact that 3 months later an announce-
ment of a Christmas party was placed on this bulletin board or by the fact
that a notice of an offer to give away puppies was posted in February 1978.
The General C('ounsel's suggestion to the contrary is rejected
I find that by making the upstairs bulletin board aa;lil-
able to employees for posting of union matter. Respon-
dent's imposition of management approval as a condition
precedent to such posting is a form of censorship of union
communications. Such a restriction. without demonstrated
justitving circumstances, in my opinion interferes with the
employees' free exercise of rights guaranteed b Section 7
of the Act aind therefore violates Section (a(lI).
2. With respect to DeJonge's postelection remarks to
Wilder
As discussed above, several weeks after the election.
which the Union won. [)eJonge engaged Wilder. a union
leader, in a coniversation in which she asserted that the
union election leaflets contained a lot of lies. specifying that
one of them falsely set forth benefits not enjoyed by Re-
spondent's employees: that unions were communistic: that
as soon tas the Union obtained a contract. the employees
would no longer see any union representative: and, finally.
that union representative Hamelin told her that the only
reason he was organizing Respondent's employees was to
collect their dues. Hamelin denied ever making the latter
statement attributed to him. The General Counsel argues
that DeJonge's disparaging remarks violated Section 8(a)( I)
because they were calculated to undermine the Union and
amounted to solicitation of' Wilder to abanltdon that organi-
7,ation.
I reject the General Counsel's contention finding instead
that DeJonge's remarks were privileged expressions of opin-
ion which, however false or unsubstantiated, did not rise to
the level of interference, restraint, or coercion prohibited by
Section 8(a)(I) of the Act. The pertinent allegations of the
complaint will therefore be dismissed.
3. With respect to DeJonge's alleged unlawful dealing
with employee Jencks concerning a fir wage scale and
soliciting Jencks to abandon the Union
Following the Union's certification and shortly after Re-
spondent and the Union held their first bargaining session
on October 31. DeJonge engaged employee Jencks in a
length, conversation in which DeJonge asked Jencks for
her views concerning a fair pay scale for all the employees
at the nursing home and requested her to think about it at
home and to note her ideas on a piece of paper which De-
Jonge handed her. I find, in agreement with the General
Counsel, that this conduct was tantamount to Respondent's
direct dealing with an individual employee in derogation of
the Union's status as the exclusive bargaining representa-
tive of Respondent's employees. Under settled law. such
conduct constitutes a breach of Respondent's statutory bar-
gaining obligation to the Union and violated Section 8(a)(5)
and (I) of the Act.
In the same conversation DeJonge told Jencks that she
could not understand Jencks' involvement in the Uinion:
that Jencks could stop the Union if she reall\ wanted to:
that she had high hopes for her, adding that if Jencks
wanted to return to school, she could become a nurse or
even a director of nursing: and that she hoped that Jencks
realized that she would probably become a night supervi-
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
sor, so she would no longer be part of the Union. I find that
by thus soliciting Jencks to abandon the Union, coupled as
it was with suggestions of a probable promotion to night
supervisor, which would remove her from the bargaining
unit, and of other possibilities of advancement, Respondent
engaged in conduct which also undermined the Union's
representative status and interfered with, restrained, and
coerced Jencks in the exercise of her Section 7 rights, in
violation of Section 8(a)(5) and ( I ) of the Act.
4. With respect to Respondent's unilateral action
As discussed above, during a hiatus in contract negotia-
tions Respondent, without first consulting or otherwise bar-
gaining with the Union, promulgated and put into effect on
November 23 employee rules and regulations which modi-
fied the rules and regulations in existence prior to the
Union's certification and a newly formulated employee
code of conduct, listing 41 grounds for discharge. I find, as
the General Counsel argues, that as the November 23 rules
and regulations and the code of conduct altered existing
terms and conditions of employment. Respondent's failure
to afford the Union an opportunity to bargain over these
matters in advance of the promulgation of these rules dis-
paraged the bargaining process and undercut the Union's
representative status, in violation of Section 8(a)(5) and (I)
of the Act.42
However, I find, contrary to the General Counsel's posi-
tion, that Respondent did not breach its bargaining duty
when in February 1978 it unilaterally implemented its em-
ployee performance evaluation program. It is undisputed
that the evaluation program was instituted during the previ-
ous September, before the Union's certification, and pro-
vided for the evaluation of employees every 6 months or
sooner if circumstances required it. such as where the indi-
vidual was a new employee or where the employee's earlier
evaluation was negative. As Respondent was simply effec-
tuating a long-existing policy respecting a term of employ-
ment when it conducted performance evaluations of em-
ployees, I find no unfair labor practice was committed, and
such allegations of the complaint will be dismissed.43
5. With respect to Respondent's no-solicitation and no-
circulation rule
Rule 20 of the employee code of conduct prohibits, under
penalty of discharge:
Soliciting, collecting funds, and/or circulating litera-
ture of any nature on Nursing Home property during
working hours without the approval of the Administra-
tor.
Under well-established principles, an employer, absent
special circumstances, may not prohibit employees from so-
liciting union support during their nonworking time or from
distributing union literature during their nonworking time
42 Amsterdam Printing and Litho Corp., 223 NLRB 370, 372 1976).
,1 The General Counsel's reliance on Amsterdam Printing, supra, is mis-
placed inasmuch as the evaluation of employees in the instant case was
manifestly not a change in a condition of employment, as was the situation
in the cited case.
in nonworking areas. As Respondent has not demonstrated
that special circumstances exist requiring greater restric-
tions, I find, in agreement with the General Counsel, that
the above-quoted rule is unduly broad and violates Section
8(a)( 1 ) of the Act.
6. With respect to the alleged discriminatory discharge of
employee Margaret Busald
The General Counsel maintains that DeJonge discharged
Busald on August 10 in violation of Section 8(a)(3) and (I)
of the Act because of her participation in the paycheck
incident of July 29. 1 find, however, that the record falls far
short of' sustaining the General Counsel's position. As pre-
viously found. Busald actually quit her job because of her
resentment over what she regarded as DeJonge's unwar-
ranted intrusion into her personal telephone conversation.
When Busald, at the suggestion of another nurse's aide,
nevertheless reported for work the following night. DeJonge
was obviously not obligated to permit her to return to view
of the fact that she had quit, and DeJonge had a low esti-
mate of her performance-justified or not which was
based on complaints DeJonge had received about Busald's
deficiencies from the charge nurse, Hopkins himself a
union supporter, who could not get along with Busald."
Whether or not DeJonge acted reasonably in refusing to
permit Busald to return, it was management's prerogative
to act, under the circumstances, as it saw fit. It is too well
settled law to require citation of authority that an employer
may terminate an employee for any reason, good, bad, or
indifferent, so long as it is not based on union consider-
ations or other protected concerted activity. I find no evi-
dence that such was Respondent's motivation.
It is clear that Busaid was only one of some 18 employees
who understandably on July 29 had congregated on the
lawn in front of the nursing home to collect their paychecks
earned during the lessee's incumbency, which they feared
might not be forthcoming. Moreover. Busald was only one
of a number of employees who spoke directly to DeJonge
concerning the employees' pay. At that time DeJonge was
in possession of the nursing home for only a day or two and
was preoccupied with persuading the State to release to her
moneys due the nursing home so that the employees could
be paid. Not only was Busald unknown to DeJonge on this
occasion of the paycheck incident, but it is hardly likely
that DeJonge was able to associate Busald with her involve-
ment in the paycheck episode., '
In sum, I find that the General Counsel failed to sustain
his burden of proving by a preponderance of the evidence
" According to DeJonge's testimony, Hopkins had previously handed her
a list of complaints against Busald for refusing to go to her assigned floor,
talking back, sleeping on duty, and not getting along with other employees.
DeJonge further testified that she intended to discuss these and other com-
plaints with Busald before she had quit.
4" Whether or not DeJonge was aware of the Union's organizational cam-
paign at the time of the paycheck incident -and the record does not clearly
establish such knowledge-I find no evidence that DeJonge believed that the
employees' gathering on the front lawn of the nursing home to collect their
wages was union inspired. The fact that at a contract negotiation meeting
held 5 months later. in December, Respondent was reluctant to grant the
Union access to the nursing home for the asserted reason that it did not want
a recurrence of the July 29 mess does not establish that in July or at the time
of Busald's separation Respondent associated the paycheck gathering with
union activity.
66
NORTH KINGSIOWN NL RSING (ARE (ENJl'ER
his assertion that Respondent discharged Busald in order to
rid the nursing home of an employee who appeared to be a
leader in the paycheck "demonstration." Although the pay-
check incident was undoubtedly ai form of protected con-
certed activity, Busald's separation was not shown to be
attributable to her participation in it. Nor am I able to find.
as the General Counsel urges, disparate treatment accorded
to Busald, as compared with that given other employees.
from which an inference of illegal motivation could be
drawn. The facts surrounding the discipline meted out to
the other employees are plainly different from those involv-
ing Busald. As the evidence does not establish that Busald's
discharge was in violation of Section 8(a)(3) or (I) of the
Act, the applicable allegations of the complaint will be dis-
missed.
7. With respect to the alleged disciplinary note to
employee Marian Jencks
On or about September II Jencks, an LPN. while the
charge nurse on duty on her assigned floor, undertook to
wash dishes because the dishwasher failed to report for
work. When this came to the attention of Director of Nurs-
ing Saccoccio, she expressed her disapproval to Jencks.
pointing out that Jencks had greater responsibilities as
charge nurse to be on the floor and serving the patients and
that she should have assigned a nurse's aide to help out
with the dishwashing. A day or two later Saccoccio sent
Jencks a note, reminding her of her responsibilities as
charge nurse and instructing her to refrain from performing
dishwasher functions while on duty as charge nurse. The
General Counsel contends that Saccoccio's note to Jencks
was a disciplinary warning issued to Jencks only because of
her prominent union activities and that Respondent
thereby violated Section 8(a)(3) and (1) of the Act. Whether
or not the note is viewed as a disciplinary warning, as the
General Counsel urges; or simply as a directive, as Respon-
dent insists it is; or as a reprimand, which it appears to be
at least, I find insufficient evidence in the record from which
an inference of discriminatory motivation can be drawn.
No matter how commendable was Jencks' cooperative atti-
tude in an emergency situation, her union activities and
Saccoccio's dislike of unions, relied upon by the General
Counsel to support an inference of discrimination. certainly
do not preclude Respondent from instructing Jencks to act
in conformity with her professional responsibilities. The rel-
evant allegations of the complaint will be dismissed.
8. With respect to the issuance of disciplinary warnings to
employee Brian Wilder
On October 27 Wilder was given two written warnings
the first for not wearing a full white uniform and a cook's
hat and for not crushing cans before their disposal and the
second for calling Respondent's owner, Virginia DeJonge.
one of the "scummiest" persons he had ever met. The Gen-
eral Counsel argues that these warnings were discriminator-
ily motivated by Wilder's union leadership and hence vio-
lated Section 8(a)(3) and (I) of the Act. Here, too, I find
that the General Counsel failed to sustain his burden of
proving discrimination by a preponderance of the evidence.
Without repeating the details, it is clear that Wilder ,,as
guilty of' the offenses charged. It is undisputed that Wilder's
failure to ear a full white uniform and it cook's hat vio-
lated Respondent's rules and State liealth l)epartment re-
quirements. Indeed. only a few 'xeeks before the ssu.lnce of
the written warning. Administrator Mlaguire in his perform-
ance evaluation of Wilder stated that he "would like to see
... [Wilder] in white uniform. IThis is a must." And 2 nights
before the written warning DeJonge erhall, reprimanded
him for wearing a dirty unilorm. On the other hand, there
can be little doubt that the issuance of the first sv arnimg on
October 27 was not beyond suspicion in view of the fact
that Respondent was generally lax in enforcing its rules
regarding the wearing of white unif'orms and head co orr-
ings, as well as the crushing of cans. However. the circum-
stances of the second warning. gien right after the issuance
of' the first warning in response to Wilder's calling l)eJonge
to her face one of the "scummiest" persons he had e er met.
militates against a finding that the first warning, as well as
the second one, was discriminatorily motivated. For if IDe-
Jonge were determined to penalize Wilder for his union
involvement rather than for his offenses, she could ha ve
terminated him on the spot for his insulting remark instead
of limiting the discipline to a warning. This is so no matter
how provoked Wilder might have been to make that re-
mark by I)eJonge's unfortunate and tasteless joke that she
had previously played on employee O'Keefe, a registered
nurse and Wilder's girl friend, regarding the tfilse VD re-
port. Indeed, when Wilder was given the second warning
he untruthfully disavowed making the insulting remark be-
cause, as he testified, he feared he would be fired or that
reason. Yet DeJonge afforded Wilder an opportunity to ad-
mit the falsity of' his disavowal and to apologize for his
conduct. This Wilder did after consulting his union repre-
sentative, with the result that he was permitted to continue
in Respondent's employ until his termination 3-1/2 months
later under the circumstances to be separately discussed.
in/r?.
All things being considered. I find, contrary to the Gen-
eral Counsel's position, that the evidence does not establish
that the disciplinary warnings were pretextual or retaliatory
responses to Wilder's union involvement rather than
prompted by Wilder's failure to comply with Respondent's
rules and by his insolent remark to DeJonge. Certainly, an
employee's union activity does not insulate him from disci-
pline for legitimate reasons, as appears to be the case here.
even though the employer is opposed to the Union. Nor do
I find such disparate treatment accorded to Wilder. con-
trasted with that given to other employees, as to support an
inference of unlawful discrimination against Wilder. In
fact, the warning issued by Respondent to employee Ken
Olsen, which the General Counsel cites, does not demon-
strate the asserted disparate treatment. Ift'anything. it shows
that Olsen was disciplined for a less serious offense4' which
" I disagree with the General Counsel's assessment of Wilder's remark as
a "relatively mild epithet" and )eJonge's warning response as so "dispro-
portionate" as to indicate it was pretextual
7 The warning given to Olsen on October 20 states that it was issued tor
"speaking in a loud voice and using improper tone and language. tits re-
marks were overheard h the nursing staff. patients and visitors"
67
DF8 CISIONS OF NATIONAL l.ABOR RELATIONS BOARI)
did not involve an insulting remark to the owner of the
nursing home, as did Wilder's.
The allegations concerning Wilder's warnings will there-
fore also be dismissed.
9. With respect to Wilder's discharge
Wilder was terminated on February 7. 1978. by )eJonge
for the asserted reason that he refused her request to shovel
the snow off the walk leading to the generator in an emer-
gency situation created by the heaviest snowstorm experi-
enced in the State, which began in the afternoon of Febru-
ary 6. Admittedly, this action was taken by I)eJonge after
Wilder had earlier also refused to shovel a walk to De-
Jonge's cottage when Assistant Director of Nursing Higgins
conveyed DeJonge's message to him to do it and DeJonge
herself had telephoned him, although initially he had
agreed with DeJonge's son that he would shovel half of that
cottage walk. The General Counsel, nevertheless, argues
that DeJonge's decision was really discriminatorily moti-
vated, seizing upon the generator incident as an excuse to
get rid of the most active unionist in the nursing home. The
General Counsel reasons that an inference of discrimina-
tion is warranted because despite the fact that Wilder re-
fused DeJonge's request to shovel the generator walk and
left the nursing home, he soon returned and informed De-
Jonge that he was ready to do it. Previously, Wilder had
told DeJonge to shovel that walk herself, but, as he himself
testified, he changed his mind because he feared that he
might be discharged on account of his refusal. DeJonge.
however, who had consulted with her attorney in the mean-
time, rejected Wilder's offer, stating that it was too late and
that he was terminated for not helping out in an emergency.
I find, as I have with respect to the warnings issued to
Wilder, that the General Counsel has failed to sustain his
burden of proving by a preponderance of the evidence that
Wilder's union involvement in any wise entered into De-
Jonge's decision to terminate him. On the contrary, as I
have previously noted, if DeJonge were determined to get
rid of a union activist, she had the perfect opportunity to
discharge Wilder when 3-1/2 months earlier he called her
the "scummiest" person he had ever met. Instead, DeJonge
forgave him when he apologized. Moreover, the fact that
Wilder ultimately changed his mind for fear of losing his
job and offered to shovel the generator walk did not obli-
gate Respondent to permit him to continue his employment
lest it be charged with discrimination. When Wilder refused
DeJonge's request, he acted at his peril. Nor am I im-
pressed with the General Counsel's reliance, as evidence of
discrimination, on a petition containing the signatures of 32
employees. among which was Wilder's, which was sub-
mitted to DeJonge about February 3, endorsing the
Union's contract proposals and urging Respondent to bar-
gain in good faith.
As Wilder's union activities obviously did not bar Re-
spondent from discharging him for cause, I find that the
General Counsel failed to substantiate the complaint's alle-
gations of discrimination against Wilder, which will accord-
ingly be dismissed.
10. With respect to the disciplinary warning Director of
Nursing Saccoccio issued to registered nurse Elizabeth
O' Keefe
As previously discussed, on January 31. 1978., Saccoccio
issued a written warning to O'Keefe, a registered nurse at
the nursing home, fbr. among other reasons, leaving medi-
cine cabinets unlocked on Januar 5 25 and 26 while away
from the area. There is no question that O'Keefe did leave
these cabinets unlocked on the indicated occasions, al-
though she insisted that on the January 26 occasion she
asked Wilder, a cook, who was then making a telephone
call at the nurses' station, to keep an ee on the cabinets. In
Respondent's view, Wilder was not a person authorized to
watch the cabinets. It also appears that just prior to the
Christmas holidays Saccoccio had cautioned O'Keefe for
leaving medicine cabinets unlocked. Admittedly, leaving
cabinets unlocked while not properly attended was in con-
travention of the rules and regulations of Respondent and
the State Department of Health and professional practices.
The General Counsel, nevertheless, argues that Saccoccio
was prompted to issue the warning in retaliation for a letter
dated January 17, 1978, sent by the nursing staff to Saccoc-
cio and Respondent's owner, I)eJonge, which was highly
critical of Saccoccio's performance s director of nursing
and her lack of concern for her responsibilities, asserting
that she acted in an unprofessional manner and created
working conditions detrimental to the staff and patients.
This letter was signed by 21 nursing employees, including
O'Keefe, whose name led the list.
Granting that this letter was a form of protected union or
other concerted activity, I find that the General Counsel
failed to substantiate his contention by a preponderance of
the evidence that the written warning was an unlawful re-
prisal measure rather than a legitimate disciplinary action.
The mere presence of O'Keefe's name on the letter or the
fact that O'Keefe was a member of the Union's negotiation
committee or otherwise supported the Union does not in-
escapably establish that the written warning was discrimi-
natorily motivated. Nor am I able to find in O'Keefe's testi-
mony that other nurses at Respondent's facility
occasionally leave cabinets unlocked a sufficient basis for
an inference of disparate treatment or that the warning was
really a pretext. Significantly, no evidence was adduced that
such neglect of responsibilities by other nurses came to Sac-
coccio's attention, much less that it was condoned. Equally
unpersuasive as evidence of discrimination is the Union's
January 14 letter to the Rhode Island Division of Licensure
relied upon by the General Counsel which was also severely
critical of Saccoccio's professional performance, even
though Saccoccio regarded the letter as an assault on her
reputation and testified that it contained misrepresentations
furnished by employees.
As I find that the claim that the warning was discrimina-
torily issued to O'Keefe was not sustained, the pertinent
allegations of the complaint will be dismissed.
II. With respect to O'Keefe's performance evaluation
As noted in the preceding part of this Decision, O'Keefe
was given a 6-month performance evaluation by Director of
68
NORTH KINGSTOWN NURSING CARE CENTER
Nursing Saccoccio on February 28, 1978. in accordance
with Respondent's policy adopted the previous September
as required by the State Department of Health regulations.
O'Keefe's overall performance was rated by Saccoccio as
"Substandard But Making Progress." the second lowest
category, the lowest being "Unsatisfactory." This was the
same overall rating that Assistant Director of Nursing Hig-
gins, with whom O'Keefe had a good relationship. gave her
the following day, although the evaluation differed from
Saccoccio's in various details. Three other nursing staff em-
ployees were also evaluated and interviewed the same day
as O'Keefe, while a number of other nursing employees
were evaluated in subsequent days.
Here, too. I find unsupported by the record the General
Counsel's contention that O'Keefe was given a negative
evaluation because of her union activities and because she
was subpenaed to testify in the instant proceeding and that
Respondent thereby violated Section 8(a)(3), (4), and () of
the Act. I find that. at best, there was a mere difference of
opinion respecting O'Keefe's job performance between her
and management. From a practical point of view, it is not
for the Board to substitute its judgment for that of an em-
ployer regarding the merits of an employee's job perform-
ance, absent, of course, convincing evidence that the em-
ployer's appraisal was improperly motivated by union
considerations. which I find not shown here. Indeed, some
of the shortcomings listed in Saccoccio's and Higgins'
evaluations of O'Keefe were subjects about which O'Keefe
conceded Saccoccio had previously spoken to her. More-
over, not without significance is the fact that several em-
ployees, and Marcia Moriarity in particular, who were also
active in the Union were given good evaluations. While the
fact that O'Keefe, along with other employees, received a
wage raise sometime during the latter part of February
1978, on Saccoccio's recommendation. might cast suspicion
on O'Keefe's negative evaluation, it is clear that the evalu-
ation noted that O'Keefe was making progress and that she
was not rated unsatisfactory. which probably would have
disqualified her for a raise. Besides. suspicion is an inad-
equate substitute for preponderance of evidence that the
Act requires to warrant a finding of discrimination.
Accordingly. the relevant allegations of the complaint
will be dismissed.
IV. ri1 RIEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that Respondent be ordered to cease and de-
sist from engaging in the unfair labor practices found and in
like or related conduct and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case. I make the following:
CoN(CUSIoNs () L.AW
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 within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating an employee concerning
his union views and sympathies. by threatening employees
to close the nursing home if the ULnion succeeded in its
organizational efforts and in order to discourage them from
voting for the Union in a scheduled Board-conducted rep-
resentation election. by threatening to discharge employees
if they engaged in a strike called by the lnion, bh giing an
employee the impression of surveillance of union activit\
by identifying a leader of the Union's campaign. b offering
employees an opportunity to hus group insurance as a
fringe benefit to discourage them from supporting the
Union at the polls, by threatening an employee with repri-
sals on account of her union activities, by requiring advance
approval of management before the posting of union no-
tices and literature on the upstairs lunchroom bulletin
board. and by promulgating and maintaining in effect an
unduly hoard no-solicitation and no-distribution rule which
prohibits employees from engaging in union solicitation on
nursing home property during their nonworking time and
from distributing union literature on nursing home propert
during nonworking time in nonworking areas, without
showing special circumstances requiring such restrictions.
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights in violation
of Section 8(a)( I ) of the Act.
4. All full-time and regularly scheduled part-time em-
ployees. including registered nurses. licensed practical
nurses, nurses aides, orderlies. housekeeping emplosees. di-
etary employees, cooks, maintenance employees. laundry
employees. and clerical employees employed by North
Kingstown Health (Care Center at its North Kingstown..
Rhode Island. location, but excluding managerial employ-
ees. director of nursing, guards and supervisors as defined
in the Act, constitute a unit appropriate tor the purposes o'
collective bargaining within the meaning of' Section 9(b) of
the Act.
5. A all material imes herein, the U!nion has been the
duly cerllticd andl exclusive bargaining representatite of the
employees in the aforesaid appropriate unit ithin the
meaning of Section 9(a) of the Act.
6. B dealing individually with an employee with respect
to pay scales for all employees in the above appropriate
bargaining unit in disregard of the Union. the employees'
certified and exclusive bargaining representative; by solicit-
ing an employee to abandon the Union. coupling the solici-
tation with suggestions of probable promotion to night u-
pervisor. which would remove her from the bargaining unit.
and further indicating to the employee other advancement
possibilities: and by unilaterally promulgating on Novem-
her 23, 1977, new employee rules and regulations and an
employee code of conduct. which changed existing terms
and conditions of employment. without consulting the
Union in advance and affording it an opportunity to har-
gain with respect to such changes, Respondent engaged in
further unfair labor practices in violation of Section 8(a)(5)
and ( I ) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not engaged in the other unfair labor
practices alleged in the consolidated complaint, as subse-
quently amended, except as found herein.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
69
DECISIONS OF NATIONAL LABOR RELATIONS BOAR)
the Act, as amended. I hereby issue the following recom-
mended:
ORDER 41
The Respondent. North Kingstown Nursing Care Center.
North Kingstown. Rhode Island. its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
union views or sympathies.
(b) Threatening employees to close the nursing home if'
the United Health C('are Employees, a Division of Rhode
Island Workers Union, succeeded in its organizational ef-
forts or threatening employees with other reprisals for their
union activities or to discourage them from voting for the
Union in a Board-conducted representation election.
(c) Threatening to discharge employees if they engaged
in a strike called by the above-named Union.
(d) Giving employees the impression of surveillance by
identifying leaders or other activists in the Union's cam-
paign.
(e) Offering employees an opportunity to buy group in-
surance as a fringe benefit to discourage them from sup-
porting the Union in a Board-conducted representation
election.
(f) Requiring advance approval of' management before
the posting of union notices and literature on the upstairs
lunchroom bulletin board.
(g) Promulgating. maintaining in effect, or enforcing an
unduly broad no-solicitation, no-distribution rule which
prohibits employees from engaging in union solicitation on
nursing home property during their nonworking time and
from distributing union literature on nursing home property
during nonworking time in nonwork areas, unless special
circumstances require such restrictions.
(h) Dealing individually with any employee in the ap-
propriate unit described below with respect to pay scale or
some other term of condition of employment, in disregard
of the above-named Union, as their certified and exclusive
bargaining representative:
All full-time and regularly scheduled part-time em-
ployees, including registered nurses, licensed practical
nurses, nurses aides, orderlies, housekeeping employ-
ees, dietary employees, cooks, maintenance employees.
laundry employees and clerical employees employed
by North Kingstown Health Care Center at its North
Kingstown, Rhode Island, location. but excluding
managerial employees, director of nursing, guards and
supervisors as defined in the Act.
(i) Soliciting any employee to abandon the Union. cou-
pling the solicitation with suggestions of probable promo-
tion to night supervisor, which would remove him or her
from the bargaining unit, or indicating to the employee
other advancement possibilities.
l4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall he deemed
waived for all purposes.
0) Unilaterally promulgating or putting into eect new
employee rules and regulations or a code of conduct or
other directives which change existing terms and conditions
of employment of the employees in the appropriate unit
without first consulting with the above-named Union, as
the employees' certified and exclusive representative, and
aflording that labor organization an opportunity to bargain
with respect to such changes.
(k) In any like or related manner interfering with, re-
straining. or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action, which is neces-
saTr to effectuate the policies of the Act:
(a) Forthwith rescind its rule promulgated and put into
effect on November 23, 1977. which prohibits its employees
from engaging in union solicitation on nursing home prop-
erty during nonworking time and from distributing union
literature on nursing home propert during nonworking
time in nonwork areas.
(b) Forthwith rescind its directives requiring advance ap-
proval of management before the posting of union notices
and literature on the upstairs lunchroom bulletin board.
(c) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
all employees in the aoresaid appropriate unit with respect
to an) changes in terms and conditions of employment that
Respondent instituted by the promulgation of the employee
rules and regulations and the employee code of conduct
effective November 23. 1977. and with respect to any other
changes unilaterally instituted since then.
(d) Post at its nursing home in North Kingstown,. Rhode
Island. the attached notice marked "Appendix."" M Copies of
said notice. on forms provided bN the Regional Director for
Region 1. after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent imme-
diately upon receipt thereof and he maintained by it for 60
consecutive days thereafter, in conspicuous places. includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall he taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
I IS FURTIHIR ORI)ERDI) that the consolidated complaint,
as amended. be dismissed insofar as it alleges violations of
Section 8(a)( 1), (3), (4). and (5) of the Act other than those
found herein to have been committed.
49 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United Stales Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NoT-iE To EMPtI.oYtkS
POSTED BY ORDER OF TIlE
NATIONAL LABOR RELAIIONS BOARD
An Agency of the United States Government
WE WILL. NOT coercively interrogate employees con-
cerning their union views or sympathies.
70
NOR Il KIN(SI'OWN NURSING (CARE (NTI'ER
WI s,11 iI Nol threaten employees o close the nurs-
ing home if l nited Health ('are Fmlploees. a Division
of Rhode Island Workers Union. succeeded in its or-
ganizational efrts or threaten employees with other
reprisals fr their union activities or to discourage
them from voting for the Ulnion in a Board-conducted
representation election.
Wi- it I ol threaten to discharge employees if
they engage in a strike called by the above-named
I nion.
Wl u 1I No() give employees the impression of sur-
veillance by identifing leaders or other activists in the
Union's campaign.
W. wll1. NOI offer employees an opportunity to buy
group insurance as a fringe benefit to discourage them
from supporting the Union in a Board-conducted rep-
resentation election.
Wli: X Vll NO I require advance approval of manage-
ment before the posting of union notices and literature
on the upstairs lunchroom bulletin board.
WE WII. NOt promulgate, maintain in effect. or en-
force an undulv broad no-solicitation, no-distribution
rule which prohibits employees from engaging in union
solicitation on nursing home property during their
nonworking time or from distributing union literature
on nursing home property during nonworking time in
nonwork areas, unless special circumstances require
such restrictions.
WE Wr i. NOi deal individually with any employee
in the appropriate bargaining unit described below
with respect to pay scale or any other term or condi-
tion of' employment in disregard of the above-named
Union as the employees' certified and exclusive bar-
gaining representative. The bargaining unit is:
All full-time and regularly scheduled part-time em-
ployees, including registered nurses, licensed practical
nurses, nurses aides, orderlies, housekeeping employ-
ees, dietary employees. cooks, maintenance employees.
laundry employees and clerical employees employed
by North Kingstown Health Care Center at its North
Kingstown Rhode Island. location, hut excluding
managerial employees. director of nursing. guards and
supervisors as defined in the Act.
W- will 1 Nt solicit any employee to abandon the
Union. coupling the solicitation with suggestions of
probable promotion to night supervisor or another su-
pervisory position which would remove him or her
trom the bargai iing unit or indicating to the emplo -
ees other advancement possibilities.
Wi- ilI N()I unilaterally promulgate or put into
effect new employee rules and regulations or a code of
conduct or other directives which change existing
terms and conditions of employ ment of unit emplo, ecs
without first consulting with the abose-named Union.
as the employees' certified and exclusive representa-
tive and affording that labor organization n opportl-
nity to bargain with respect to such changes.
Wi: Wi1.i NoI in any like or related manner interfere
with, restrain, or coerce employees in the exercise of'
the rights guaranteed them in Section 7 of the Act.
WEL Whti frthwith rescind our rule promulgated
and put into effect on November 23 1977. which pro-
hibits our employees from engaging in union solicita-
tion on nursing home property during nonworking
time or from distributing union literature on nursing
home property during nonworking time in nonwork
areas.
Wt. wl.t. forthwith rescind our directives requiring
advance approval of management beflre the posting of
union notices and literature on the upstairs lunchroom
bulletin board.
Wi. wiH. bargain collectively, upon request. with the
above-named labor organization as the exclusive repre-
sentative of all employees in the aforesaid appropriate
unit with respect to any changes in terms and condi-
tions of employment that we instituted by the promul-
gation of the employee rules and regulations and the
employee code of conduct effective November 23
1977. and with respect to any other changes unilater-
ally instituted since then.
NORtll KIN(oiSIOW N NI R.SlN( CARL CiNII:R
71