Notre Dame Hills Medical Services

National Labor Relations Board - Board Decisions

Feb 7, 1980

247 N.L.R.B. 957 (N.L.R.B. 1980)

NOTRE DAME HILLS MEDICAL SERVICES
Notre Dame Hills Medical Services, Inc., d/b/a
Notre Dame Hills Convalescent Center and Jon
Sutton and Laborers International Union of North
America, Local Union No. 459, AFL-CIO. Cases
14-CA-10958, 14-CA-11074, and 14-RC-8629
February 7, 1980
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On October 26, 1979, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision' in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge, to
modify his remedy, 4 and to adopt his recommended
Order,5 as modified herein.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
I The Administrative Law Judge's Decision contains several inadvertent
errors which are hereby corrected. At sec. ii, A, par. 5 and at sec. IIt C, par. 2,
the Administrative Law Judge refers to the General Counsel's argument that
Respondent offered employees a free Christmas party after learning of the
union activities through Supervisor Porter on December 23, 1977. or through
Supervisor Santos on November 28. 1977. Based on the testimony of Hattie
Gladney and noting that Respondent posted the notice regarding the
Christmas party on or about December I, 1977, it is apparent that the
reference to Supervisor Porter should state November 23 and not December
23. In addition, at sec. i. A. par. 8, the Administrative Law Judge's Decision
should state October 1977. not October 1976.
: Based upon principles enunciated in N. LR.B. v. Exchange Paris
Company. 375 U.S. 405 (1964), we find that Respondent's December 22, 1977.
wage increase was presumptively unlawful. The presumption has not been
rebutted and, therefore. we agree with the Administrative Law Judge's unfair
labor practice finding regarding that increase. We also agree with the
Administrative Law Judge's finding that Respondent's no-solicitation rule
which proscribes solicitation "during working hours without the approval of
the administrator" is overly broad on its face.
We agree with the Administrative Law Judge's conclusion that Respon-
dent violated Sec 8(aXI) by Administrator Janson's statement to employee
Selver that, if the employees did not vote against the Union in the January 4,
1978. election, Respondent's facility would become unionized which would
hurt employees' chances of wage increases. job security, and working
conditions. The complaint alleges that this incident occurred on or about
December 7, 1977, and the record indicates that it took place on December 9.
At sec. II, C, par. 12, of his Decision the Administrative Law Judge appears to
make separate 8(a)(l) findings based on Janson's statements to Selver
allegedly on December 7 and on December 9. We conclude that these findings
247 NLRB No. 126
below, and hereby orders that the Respondent, Notre
Dame Hills Medical Services, Inc., d/b/a Notre Dame
Hills Convalescent Center, Belleville, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b):
"(b) Threatening employees with loss of employ-
ment, more onerous working conditions, and the loss
of wage increases if they choose to be represented by a
union, granting the employees wage increases and
other benefits in order to undermine their support of
the Union, and promulgating, maintaining in effect, or
enforcing any rule or regulation prohibiting its em-
ployees from soliciting, collecting funds, and/or circu-
lating literature of any nature during working hours."
2. Add the following as paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
3. Substitute the following for paragraph 2(a):
"(a) Offer Jon Sutton immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without loss of seniority or other rights and privileges
previously enjoyed, and make him whole for any loss
of earnings he may have suffered because of Respon-
dent's discrimination against him in the manner set
forth in the section of the Administrative Law Judge's
Decision entitled 'The Remedy' as modified by the
Board's Decision."
4. Substitute the attached notice for that of the
Administrative Law Judge.
refer to the same incident on December 9 and do not require a separate
conclusion of law.
' The Administrative Law Judge inadvertently specified interest at 6
percent as in Isis Plumbing & Heating Co. In accordance with our decision in
Florida Steel Corporation. 231 NLRB 651 (1977), we shall apply the "adjusted
prime interest rate" as used by the Internal Revenue Service.
' In light of Hickmott Foods. Inc. 242 NLRB 1357 (1979), we find that the
narrow cease-and-desist language "in any like or related manner" is adequate
to remedy the violations here. We shall modify the recommended Order and
the notice accordingly. We shall also modify par. 2(a) of the recommended
Order and the notice by adding the standard reinstatement language "or, if
that position no longer exists, to a substantially equivalent position." The
Administrative Law Judge also inadvertently omitted 8(aX1) language from
the recommended Order and notice which we shall further modify according-
ly.
'The Administrative Law Judge directs the Regional Director to open and
count the challenged ballot of Jon Sutton and to certify the election results in
Case 14-RC-8629. The General Counsel excepts to the Administrative Law
Judge's failure to recommend that the objections in the representation
proceeding be sustained if the counting of this ballot results in the Union, the
objecting party, losing the election. We find merit in these exceptions. The
alleged objectionable conduct is the same conduct that the Administrative
Law Judge finds violative of Sec. 8(a)
3
) and (I). We also find that the
objections have merit and they are hereby sustained. Consistent with this
finding we shall direct the Regional Director that, if the counting of Jon
Sutton's challenged ballot does not result in the Union receiving a majority of
the valid votes cast, the election held on January 4, 1978, be set aside and a
new election be conducted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the proceeding in
Case 14-RC-8629 be, and it hereby is, remanded to
the Regional Director for Region 14 to take the
necessary action pursuant to the following Direction.
DIRECTION
The Regional Director for Region 14 is hereby
directed to open and count the ballot cast by Jon
Sutton in the election held on January 4, 1978, and to
issue a revised tally of ballots. If the results show that
the Petitioner, Laborers International Union of North
America, Local Union No. 459, AFL-CIO, has
received a majority of the votes cast, the Regional
Director shall issue a certification of representative. If
the revised tally indicates that the Petitioner has not
received a majority of the votes cast, then the Regional
Director shall set aside the election held on January 4,
1978, and conduct a new election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employees because of member-
ship in or activity on behalf of Laborers Interna-
tional Union of North America, Local Union No.
459, AFL-CIO, or any other labor organization,
or for engaging in protected union activity or
exercising rights guaranteed by the National
Labor Relations Act.
WE WILL NOT threaten employees with loss of
employment, more onerous working conditions,
and the loss of wage increases if they choose to be
represented by a union, grant the employees wage
increases and other benefits in order to under-
mine their support of the union, and promulgate,
maintain in effect, or enforce any rule or regula-
tion prohibiting our employees from soliciting,
collecting funds, and/or circulating literature of
any nature during working hours.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Jon Sutton immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent job,
without prejudice to seniority or other rights and
privileges previously enjoyed, and WE WILL
make him whole for any wages lost as a result of
our discrimination against him, plus interest.
NOTRE DAME HILLS MEDICAL SERVICES,
INC., D/B/A NOTRE DAME HILLS
CONVALESCENT CENTER
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: The
hearing in this case was held on March 1, 1978, in St. Louis,
Missouri, based on the complaint issued by the Regional
Director for Region 14 on January 17, 1978, amended by
order issued February 17, at which time the cases were
consolidated for hearing. In substance, the complaint alleged
that since on or about early November 1977 through
December 22, 1977, Respondent, by its administrator,
Naomi Janson, granted employees a free Christmas party,
threatened them with loss of employment and more onerous
working conditions and loss of a wage increase if they chose
to be represented by a union, and on December 22 gave them
a $10 bonus in order to discourage their support of the
Union and gave them a wage increase for the same purpose.
The complaint further alleged that on November 29 Respon-
dent discharged Jon Sutton because of his having engaged in
union or concerted activities, and since that time has failed
and refused to reinstate him to his former or a substantially
equivalent position, thereby engaging in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act. On
February 9, the Regional Director issued his report on
challenged ballots and objections together with a recommen-
dation, and ordered the cases consolidated with Case 14-
RC-8629 for the purposes of hearing. In its answer to the
amended complaint, received on February 13, Respondent
admitted certain allegations and that it had discharged
Sutton on November 29, but alleged that he was terminated
for just cause. Further, Respondent denied that it had
engaged in any unfair labor practices.
Upon the entire record in the case and from my
observation of the witnesses as they testified and a consider-
ation of the briefs filed with me by counsel for Respondent
and the General Counsel, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Illinois corporation, maintains its only
office and place of business in the city of Belleville, Illinois,
where it is engaged in providing health care and convales-
cent services. It admits and I find that during the calendar
year preceding the issuance of the complaint Respondent
performed health care services valued in excess of $100,000
and purchased and caused to be transported and delivered to
the Belleville facility goods valued in excess of $50,000
which goods, in the same amount, were transported and
delivered to that facility from points outside the State of
Illinois. Respondent admits and I find that it has been at all
times an employer engaged in commerce within the meaning
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NOTRE DAME HILLS MEDICAL SERVICES
of Section 2(2), (6) and (7) of the Act and that at all material
times the following persons occupied the positions set
opposite their names and, as of the date of the complaint,
were supervisors and agents within the meaning of Section
2(11) of the Act: Naomi Janson, administrator; Ambrose
Frey, associate administrator; Virginia Jackson, executive
director of facility services from May 16 through November
11, 1977, when she terminated her employment; and Lenora
Porter, dietary supervisor.
II. THE ALLEGED UNFAIR ABOR PRACTICES
A. Interference. Restraint, and Coercion
On November 21, 1977, Sutton met with another employ-
ee, Nola Lehman, for the purpose of planning organizational
strategy on behalf of Laborers International Union of North
America, Local Union No. 459, AFL-CIO, herein called the
Union. Between November 22 and 29, the date of Sutton's
discharge, Sutton was actively involved in procuring union
authorization cards from employees in the bargaining unit.
On November 24 and 26, Sutton openly discussed the Union
and revealed a petition on behalf of the Union to Lenora
Porter, the dietary supervisor. On November 28, Barbara
Santos, a nursing supervisor, advised Janson that an employ-
ee had threatened another employee in order to obtain
support for the Union. On the following day, without any
prior notice, Janson discharged Sutton.
On November 29, the Union filed a petition for represen-
tation with the Regional Office of the Board. The petition
was served on Respondent on or about the same day. On or
about December 1, Respondent posted a notice informing
employees that the Christmas party scheduled for December
3 would be free to employees, although Respondent had
notified the employees early in November that there would
be a $5.50 charge per person for the party. On December 7,
Janson personally handed paychecks to employees and, on
the same date, told Kathryn Selver, an employee, so Selver
testified, that, if the employees did not vote against the
Union in the election scheduled for January 4, the facility
would become unionized which would hurt chances of wage
increases, job security, and working conditions. On or about
December 22, all employees received their paychecks, a
letter advising them of wage increases, and a $10 bill.
An election was held on January 4. Sixteen valid votes
were cast for the Union and the same number were cast
against the Union. Sutton's ballot was challenged by
Respondent on the ground that he was not on the payroll on
the date of the election. Accordingly, it is obvious that his
vote would determine the final result of the election. Timely
objections were filed by the Union on January 11, and the
Regional Director of Region 14 issued his report on
challenged ballots and objections. He ordered that the
objections be consolidated with the unfair labor practice case
for determination of substantive credibility issues by an
administrative law judge. On or about February 10, Respon-
dent issued rules of conduct which included the following
rule concerning solicitation, violation of which would
constitute cause for discharge: "Soliciting, collecting funds,
and/or circulating literature of any nature on Nursing Home
Property during working hours without the approval of the
Administrator." Counsel for the General Counsel argues
that this rule is "overly broad."
Respondent admits posting the notice concerning the free
Christmas party as well as the substance of it but contends
that it was posted before it obtained knowledge of union
activities. Hattie Gladney, an employee, recalled seeing the
notice a day or two before payday, which was December 2,
1977. Counsel for the General Counsel contends that since
the testimony of Janson "was impeached by Respondent's
witnesses, her testimony should be discredited." In addition,
he points out that Respondent offered no evidence to rebut
Gladney's testimony with respect to the date that Respon-
dent notified employees of the free Christmas party.
Administrator Janson testified that Respondent deter-
mined to grant its employees a free Christmas party because
the finances of Respondent had improved due to a reim-
bursement made by Medicare early in November of approxi-
mately $21,000 and that on or about December 21 Respon-
dent's facility achieved full occupancy. Counsel for the
General Counsel, however, contends that this defense is
"specious" and should be discredited. He points out that
Respondent admits that since January 1977 the facility has
never operated at a profit and that the losses fluctuated
between $20,000 and $7,000 per month. He also calls
attention to the fact that in the early part of November 1977,
due to its financial condition, Respondent was forced to lay
off employees and reduce working hours. He also calls
attention to the fact that the occupancy of the home
fluctuates by approximately 10 to 15 individuals per month.
Accordingly, he argues that it is "contrary to business reality
and decision making for an Employer to grant benefits to
employees while undergoing such long term financial hard-
ships." He asserts that the more plausible explanation is
that, upon gaining knowledge of the union activities through
Supervisor Porter on December 23, or through Supervisor
Santos on November 28, Respondent "offered employees a
free Christmas party in order to dissuade their activities on
behalf of the Union in violation of Section 8(a)(l) of the
Act."
On December 9, the employees were advised that Admin-
istrator Janson wished to speak to each employee before
picking up his or her paycheck and that paychecks would be
available at 3 p.m. Selver testified that she arrived at
Janson's office at 3 o'clock and waited in line with other
employees. At approximately 4 o'clock she was called into
Janson's office. Janson and Associate Administrator Frey
were there. According to Selver, Administrator Janson said
"We, the administrators of the nursing home, encourage you
to vote no on the January 4 election." Selver further testified
that Janson stated that if the employees did not vote no in
that election the home would become unionized and it would
definitely hurt the employees' chances of wage increases, and
that it would also hurt their job security and the possibility
for improvement in working conditions. Counsel for the
General Counsel further contends that Administrator Jan-
son's credibility "is further damaged by the testimony of
Ellen Kaemmer who in direct conflict with Janson's denial,
testified that Janson instructed her to vote no in the
upcoming election."
It is the position of counsel for the General Counsel that
the statement of Administrator Janson to employee Selver
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(1) of the Act for the reason that it
constituted a threat of loss of employment, more onerous
working conditions, and loss of wage increases if employees
chose to be represented by the Union.
Counsel for the General Counsel points out that Respon-
dent admitted that on or about December 22 it distributed a
letter to employees informing them of a raise and enclosed a
$10 bill. Respondent admits that the enclosure of the $10 bill
was motivated by the union representation petition filed in
early December. Counsel for the General Counsel points out
that the record establishes that in December 1976 the
employees of Respondent received a turkey as a Christmas
bonus. In October 1976, Dr. Rosenberg, Respondent's
chairman of the board of directors, told Administrator
Janson that, due to Respondent's precarious financial
position, turkeys should be distributed only to employees
who had been employed I year or longer and, possibly, to
supervisors. Early in December, after Respondent had been
notified of the representation petition filed by the Union,
Respondent decided to give each employee a $10 bonus
without regard to length of employment.
Counsel for the General Counsel contends that the $10
bonus, prior to the union election, constitutes a grant of
benefits in order to discourage employee support for the
Union and that the grant of the bonus was motivated by the
petition of the Union. He further argues that the record
shows that, but for the petition, Respondent would not have
given a Christmas bonus to all employees. He points out
that, as previously indicated, Respondent had been operating
at a loss for every month of the calendar year and that
Respondent's financial condition became so severe in No-
vember that it laid off employees and reduced hours of
employment. In addition, he argues that the record estab-
lishes that Respondent granted some employees both the $10
bonus and turkeys and that, contrary to the assertion made
by Respondent, turkeys were not given to all employees who
had been employed for more than a year.' Finally, counsel
for the General Counsel contends that, by giving some
employees both a turkey and $10, Respondent "destroyed
any semblance of uniform conduct which it wished to
establish" and that the effect "was a grant of benefits in
violation of Section 8(a)(l)."
B. The Termination of Sutton
Sutton was hired by Virginia Jackson, his supervisor, on
June 9, 1977, as a maintenance man. On September 12,
Jackson made her initial 3-month evaluation of Sutton's
performance. In it she stated, among other things, that the
quality and quantity of his work were above average and
that his dependability, cooperation, and initiative were
outstanding.
Supervisor Jackson resigned on November 12 and pre-
pared a written evaluation of all employees under her
supervision. On November 16, Associate Administrator
Frey, who assumed Jackson's responsibilities, prepared
another evaluation of Sutton. In it he indicated that Sutton's
cooperation was above average, his personality average, his
' He points out that the record shows that Ardel White and Mary Williams,
who were employed more than I year, did not receive a turkey and that
Gladney, who had quit in May and was rehired in July 1977. received a turkey
self-improvement average, and his quality of work were
below average. He added the comment that Sutton had not
been completing his assignments repeatedly and stood
around talking instead of working. Frey testified that before
Sutton was hired he had a long conversation with him
concerning his capabilities for that position. He testified that
at first he thought that Sutton was just new at the job and
that he needed help and, therefore, "gave him a lot of leeway
to do the jobs of ordinary maintenance and repair that were
necessary." He added that Sutton seemed eager, anxious,
and willing to do the job, and he tried to encourage Sutton as
much as possible but that, gradually, he "found out that he
didn't know as much as he had led me to believe about
electrical or plumbing or maintenance and so, I began to be a
little discouraged with him." This led him to look more
carefully at what he was doing and that he gradually
"discovered that he was not only incompetent but that he
was kind of loafing on the job" and that these two things
"disenchanted me with his working." Frey further testified
that in October or November he frequently had occasion to
go to the administrative area of Respondent to discuss
matters with the supervisor of the kitchen, to see if the
maintenance was being taken care of, to receive shipments
that would come in and make sure they were put in the
proper places, and further matters of that nature. He had
frequent occasion to observe the performance of Sutton and
observed that "he didn't complete jobs that I had assigned to
him, in particular and that after a long period of time and
many times reminding him that I wanted it done and
making sure he had the equipment to do it, also seeing him
oftentimes just socializing with the other employees
throughout the center." Asked to explain what he meant by
socializing, Frey testified that he "would see him standing at
the nurse's desk on either hall, conversing with the nurses or
kidding around with the other employees, or sometime[s]
with a resident which happens now and then, too." Asked to
be more specific about the jobs Sutton had been given which
he would not perform, Frey stated that there was a sewer
opening in the physical therapy room, about a 3-inch pipe
that was sealed with plaster, and that the inspector had
pointed it out to him stating that it was not a proper way of
closing that pipe and that he wanted it sealed properly. Frey
went on to say that he instructed Sutton to go to the
plumbing shop and get a piece of pipe, to seal the pipe with
caulking and, if possible, to thread the new pipe onto the
existing sewer pipe. He added that he reminded Sutton
several times that it was not yet done and was never done by
him. Frey stated that this incident occurred around the
beginning of November. Sometime later, so Frey testified, he
wanted the air conditioners caulked because rain was
blowing against the building and leaking into the rooms
around the air conditioners. Frey testified that he obtained
the caulking necessary to do this work and he pointed the
matter out to Sutton and directed him to do the caulking but
testified that Sutton "finally got to it" which was "about a
month after I got the caulking." In consequence, according
to Frey, he was "getting very dissatisfied" with Sutton's
operation. Concerning the evaluation report he prepared on
while Selver, who had been fired in November 1976 and rehired in February
1977, did not receive a turkey.
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NOTRE DAME HILLS MEDICAL SERVICES
Sutton, Frey testified that he was "definitely deciding that he
was not the man for that job at all." He related that he
cautioned Sutton about his performance and told him that
he "was taking him off the maintenance operation" and that
he was attempting to obtain a man who could come in on
call to do the maintenance which, according to Frey, Sutton
could not do. He thereupon took Sutton off maintenance and
told him that he was supposed to do whatever was necessary
at the time, whether it was in housekeeping, laundry,
delivering packages, or whatever he needed a man to do,
such as move beds or furniture. Frey testified that about the
middle of November he talked to Jackson about the manner
in which Sutton was doing things or not doing them and
together they decided "that we would probably not keep him
in the future." About that time Frey went to California to
attend the funeral of his wife's mother. When he came back
he learned that Sutton had been fired during his absence.
Mary Ann Lopez, an employee, testified that she had an
opportunity to observe Sutton in the performance of his
duties, stating that that was part of her job. She related that
when Sutton was hired he worked "real hard" and was
doing "a real good job." However, she testified that Sutton's
work "slowly dwindled down" beginning "possibly" in or
about October. She stated that she "had a hard time finding
him for jobs that had to be done." Andrea Kay Byrd, a nurse
aide, testified that Sutton, when he first began working for
Respondent, was "pretty good," but that as time went by he
"started to goof off" and that it "got to where he wouldn't
do anything." Counsel for Respondent states that the
testimony of fellow employees of Sutton, as well as Respon-
dent's records, substantiates the fact that the efficiency and
performance of Sutton deteriorated even though he had at
one time been rated as an excellent employee.
Supervisor Porter testified that she became aware of a
union petition being circulated by Sutton and that she saw
him doing so in the kitchen, but she could not recall the
exact date, although in a prior statement she stated that it
was about 3 weeks after she went to work for Respondent on
November 1. She testified that she did not advise any
member of the administration of Respondent or any supervi-
sor about it. She did corroborate Sutton's testimony that she
told him she would not sign anything like a union petition
because she was a supervisor. Supervisor Santos testified that
she spoke with a Mr. Kuklinski concerning an incident that
happened to him. She related that Kuklinski was upset and
stated that an employee had threatened him about signing
the union petition. She did not state who had threatened
Kuklinski but that Kuklinski said he had been threatened by
several people. Kuklinski also told her whom he thought had
started the petition and that she reported this to Administra-
tor Janson. She testified that Lehman, one of the house-
keepers, had started the petition. As previously pointed out,
Sutton met with Lehman on November 21 for the purpose of
planning organizational strategy on behalf of the Union.
Moreover, as previously related, Sutton openly discussed the
Union and revealed the petition on behalf of the Union to
Supervisor Porter. As related above, on November 28
Supervisor Santos advised Administrator Janson that an
employee had threatened another employee in order to
obtain support for the Union.
C. Discussion and Conclusions
We turn first to a consideration of the conduct alleged to
constitute independent violations of Section 8(a)(1) of the
Act. According to Administrator Janson, the decision to
make the Christmas party free to employees was made at the
home of Associate Administrator Frey on November 21 or
22 because, as she testified, "the employees had done a good
job and we felt that even though it was going to hurt us
financially, we wanted to do this for our employees." Frey
testified that he did not think that the Christmas party was
discussed "in a definitive way." According to him, the
having of a Christmas party was discussed at a special
meeting in Janson's office prior to the meeting at his home.
Nursing Supervisor Santos testified that she was at the party
at Frey's home and that having a Christmas party was
discussed at supervisor meetings prior to the meeting at
Frey's home. She stated that Respondent had received a very
large Medicare check and that it was thereupon decided "as
a token of good will or to show our appreciation to
everybody in the facility for having worked so hard we
would pay for their meal but that their guests would have to
buy a ticket to the dinner." Inasmuch as the testimony of
Janson was contradicted by Respondent's witnesses Frey
and Santos, it is my view that her testimony is entitled to
very little credence. In addition, Respondent offered no
evidence to contradict the testimony of Gladney with respect
to the date Respondent notified employees of the free
Christmas party.
Respondent contends that the grant of the free Christmas
party was occasioned by sudden economic success on or
about November 21. It further relies on evidence that on
November 7 Medicare made a $21,000 rebate and that about
December 21 Respondent facility achieved full occupancy.
In my opinion, this defense based on economic prosperity is
specious. Respondent admits that since January 1977 the
facility never operated at a profit and the losses fluctuated
between $20,000 and $7,000 per month. It also should be
pointed out that between June and November 1977 Respon-
dent lost approximately $82,000. Moreover, during the early
part of November Respondent, because of its financial
condition, was forced to lay off employees and reduce
working hours. In addition, the occupancy of the home
fluctuated by approximately 10 to 15 individuals per month.
I agree with the statement of counsel for the General
Counsel in his brief that it is "contrary to business reality
and decision making for an Employer to grant benefits to
employees while undergoing such long term financial hard-
ships." I also agree with him that a "more plausible
explanation is that upon gaining knowledge of the Union
activities through Supervisor Porter on December 23, 1977,
or through Supervisor Santos on November 28, 1977,
Respondent offered employees a free Christmas party in
order to dissuade their activities on behalf of the Union in
violation of Section 8(aX)() of the Act."
The employees were told on December 9 that Administra-
tor Janson wished to speak to each employee before they
picked up their paychecks, which would be available at 3
p.m. Selver testified that she arrived at Janson's office at 3
o'clock and waited in line with other employees. About an
hour later she was called into Janson's office where she and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associate Administrator Frey were. According to Selver,
whom I credit, Janson said that, "We, the administrators of
the nursing home, encourage you to vote no on the January
4 election" and further stated that if the employees did not
vote no in that election the home would become unionized
and it would definitely hurt the employees' chances of wage
increases, hurt their job security, and also hurt the possibili-
ty of improvement as far as working conditions were
concerned. I so find. I further find that by Janson's
instruction to Kaemmer to vote "no" in the election
Respondent violated Section 8(a)(l) of the Act.
We now turn to a consideration of the reasons advanced
by Respondent for the termination of Sutton. As previously
found, Jackson, who was Sutton's supervisor, made an initial
3-month evaluation of Sutton's performance on September
12, 1977. She stated that the quality and quantity of his work
were above average and that his dependability, cooperation,
and initiative were outstanding. As previously related,
Jackson resigned on November 12 and prepared a written
evaluation of all employees under her supervision. Associate
Administrator Frey assumed Jackson's responsibilities and,
on November 16, prepared another evaluation of Sutton. He
indicated that Sutton's cooperation was above average, his
personality average, his self-improvement average, and the
quantity and quality of his work were below average. He
further added that Sutton repeatedly had not been complet-
ing his assignments and stood around rather than working.
According to Frey, before Sutton was hired he had long
conversations with him concerning his capabilities for the
position, and he testified that he first thought that Sutton
was just new at the job and that he needed help and,
accordingly, "gave him a lot of leeway to do the jobs of
ordinary maintenance and repair that was necessary." He
further stated that Sutton seemed to be eager, anxious, and
willing to do the job, and that he tried to encourage him as
much as possible. However, Frey related that gradually he
found out that Sutton did not know as much as he had led
him to believe about electrical work, plumbing, or mainte-
nance, and therefore felt somewhat discouraged with him.
He stated that he looked more carefully at what Sutton was
doing and gradually discovred that he was not only
incompetent but that he was loafing on the job and this
disenchanted him with Sutton's work. In addition, Frey
testified that in October or November he frequently had
occasion to go to the administrative area of Respondent to
discuss matters with the kitchen supervisor, to see if the
maintenance was being taken care of, to receive shipments
that would come in, and make sure they were put in proper
places. He testified that he had frequent occasion to observe
the performance of Sutton. He observed that Sutton did not
complete jobs to which he had been assigned and that, after
a long period of time, and several reminders, and making
sure that he had the equipment to do the work, he would see
Sutton socializing with other employees. Frey related that
Sutton delayed doing work assigned to him, with the result
that Frey was "getting very dissatisfied" with Sutton's
operation. Frey testified that the evaluation report he
prepared on Sutton led him to the conclusion that Sutton
was not the man for the job, and, in consequence, he advised
Sutton that he was removing him from the maintenance
operation.
As we have seen, Janson, who hired Sutton, after
observing his work performance for a period of 3 months,
gave him a very favorable evaluation. On the other hand,
Associate Administrator Frey, who succeeded Janson when
she resigned on November 12, gave Sutton a much less
favorable evaluation on the basis of observing Sutton's work
performance for 4 days. In my opinion, Frey's evaluation is
entitled to very little credit.
Counsel for Respondent, in his brief, argues that the
testimony of follow employees of Sutton, as well as the
records of Respondent, "substantiate the fact that the
efficiency and performance" of Sutton deteriorated, "even
though he had at one time been rated as an excellent
employee," and that this was the cause of his termination.
On the other hand, counsel for the General Counsel points
to several factors which lead to the conclusion that the
reason Sutton was terminated was because of his union
activity and not because of his work performance. It is his
contention that the "precipitious discharge is typical of an
employer who discovers that an employee, whom the
employer had strained to keep on the payroll despite poor
evaluations, was one of the instigators of a Union organiza-
tionl campaign." He calls attention to the fact that Sutton
was terminated at midday without prior warning. Sutton
reported to work as usual on November 29 and when he
attempted to check out for lunch he noticed that his
timecard was missing. He left for lunch, in the belief that
Respondent was working on the payroll. When he returned
and noticed his timecard was still missing, he brought this to
the attention of a secretary who did not know where his
timecard was and helped him search for it. Sutton then went
into Administrator Janson's office, and she told him that he
was fired because his job "hadn't been satisfactory in the last
few days." She then handed Sutton two handwritten checks,
one for services rendered and the other for 2 weeks'
severance pay. Normally, payroll checks are prepared by a
computer located outside the facility.
Administrator Janson claimed that she came to the
decision to discharge Sutton about a week before the
discharge; however, she admitted that she did not communi-
cate this decision to anyone, including Associate Adminis-
trator Frey, Sutton's immediate supervisor. This is borne out
by the fact that Sutton telephoned Frey at him home
following his termination; Sutton told Frey that he had been
discharged. Frey admitted expressing surprise and stated
that he did not understand why Sutton had been terminatedl
Frey assured Sutton that he would speak with Janson about
the discharge. Counsel for the General Counsel points out
that inasmuch as Frey was not in the facility from November
25 through November 29, he was not aware of Sutton's
union activity and, therefore, would harbor no animus
toward Sutton. The following day, November 30, Sutton
returned to the facility in order to return his keys. He spoke
with Frey, who offered to give Sutton a complimentary
reference. Counsel for the General Counsel points out that,
if the discharge were based on poor work performance, Frey
would have told Sutton this and would not have offered to
give him a flattering reference for employment. He also calls
attention to the fact that Frey had complimented Sutton on
his work during the months preceding his discharge and as
late as the party on November 21.
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NOTRE DAME HILLS MEDICAL SERVICES
It is the position of counsel for the General Counsel that
neither Janson nor Frey had an adequate opportunity to
observe Sutton prior to his termination. Sutton had been
under the close and direct supervison of Jackson until
November 12, when she resigned. Associate Administrator
Frey took over Jackson's supervision over housekeeping,
laundry, and maintenance in addition to his prior adminis-
trative duties. He argues that the record shows that Janson
and Frey were not able to observe Sutton adequately since
the administrative officers were situated in the front of the
facility while the maintenance and laundry areas were in the
rear. It is his position that Janson and Frey only ventured
into the patient area two or three times a day and that
Sutton only saw Janson once a day, as he testified. When
Sutton was discharged, Janson told him that his work had
not been satisfactory "in the last few days." The record
establishes that during the period immediately preceding the
discharge, Sutton was not scheduled to work on November
19, 20. 24, 26, and 27. Associate Administrator Frey was in
California from November 25 through 29.
Counsel for the General Counsel contends that Respon-
dent's reliance on the evaluations given Sutton "are ques-
tionable." The evaluation given Sutton by Jackson under
date of September 12 indicated that Sutton was an outstand-
ing employee. However, Sutton's performance then began
deteriorating in the eyes of supervision. At the time
Administrator Jackson resigned on November 12, she
recommended that Sutton be discharged. Jackson testified
that Associate Administrator Frey had not complained to
her about Sutton's performance, although she did bring
Sutton's performance to Frey's attention. Frey's reply was "I
am sure things will work out." Despite Jackson's recommen-
dation, Respondent kept Sutton as an employee until
November 29, the day after Janson learned of the union
activities in the facility.
It is the contention of counsel for the General Counsel
that when Frey assumed Jackson's responsibility on Novem-
ber 12, a few days later Frey prepared an evaluation of
Sutton "which is highly suspect." Respondent's stated policy
is to review employees after 3 months and on their following
anniversary date. Employees are counseled regarding their
evaluation and asked to sign the evaluation. This procedure
was followed during the September 12 evaluation of Sutton.
The evaluation dated November 16 was prepared only a few
days after Frey had taken over the position as Sutton's
supervisor, approximately 2 months after the September
evaluation of Sutton and a few days after Jackson's evalu-
ation of November 12. It was not shown to or discussed with
Sutton, and the only evaluation prepared at that time was for
Sutton. As counsel for the General Counsel points out, the
record establishes that Associate Administrator Frey pre-
pared evaluations for employees after they had left the
employment of Respondent and that these evaluations
uniformly indicated that the employee performed at a
substandard level. Counsel for the General Counsel suggests
that these facts raise the inference that the evaluation was
prepared in the same manner as for other employees who
quit or were terminated.
Administrator Janson testified that she did not fire Sutton
until November 29 because of her inability to replace him.
She testified that Respondent had tried to find a replacement
for Sutton since October. Associate Administrator Frey
testified that Respondent was unable to find someone to do
Sutton's mopping job. I agree with counsel for the General
Counsel that this is "patently incredible," in view of the fact
that mopping is not the sort of job that would require a 2-
month search for a replacement. Administrator Janson at
first took the position that Respondent was unable to find an
employee to perform the maintenance duties and then
shifted to the position that Respondent was unable to find a
replacement for him in the laundry. In my opinion, the
record establishes that both positions are untenable. Janson
testified that a Mr. Porter, who performed maintenance
work on a contract basis, had completely taken over the
maintenance duties of Sutton approximately a month before
Sutton was discharged. With respect to the laundry duties,
the record shows that Respondent had laid off an employee
referred to as Willie in early November 1977. At the time
Willie was laid off, Jackson told her that she hated to let her
go because she was one of the best employees but that there
was a money problem. Counsel for the General Counsel
suggests that had Respondent "harbored the intention of
finding a replacement for Sutton since October" Respondent
would have laid off Sutton rather than Willie He also makes
the point that if Respondent had made the decision to
discharge Sutton during the following weeks it could have
recalled Willie to replace him. In addition, the record
establishes that, during the month preceding the discharge of
Sutton, Respondent had approximately 7 persons who
applied for employment in any position at the facility and 13
persons who applied to work in the laundry. After having
been unable to find a replacement for Sutton since October,
Respondent finally contacted Sharon Simmons but not until
November 29, although she had applied at an earlier time.
Simmons had been employed by Respondent from Novem-
ber 23, 1976, until March 24, 1977, and Respondent had the
prior employment record of Simmons at its disposal when it
hired Simmons. The record shows that Simmons was
discharged on November 24, 1977, and the evaluation of her
employment states that Simmons was an average employee
and her supervisor recommended that Simmons not be
considered for further employment; nevertheless, despite this
information, Respondent hired Simmons to replace Sutton.
To conclude, I find that Respondent independently
violated Section 8(a)( 1 ) of the Act (a) by the action of Janson
in telling employee Selver, on December 7 that if the
employees did not vote against the Union in the election
scheduled for January 4 the facility would become unionized
which would hurt chances of wage increases, job security,
and working conditions; (b) by advising the employees about
December 22 by letter of wage increases and enclosing a $10
bill; (c) by issuing rules of conduct about February 10
concerning solicitation during working hours without ap-
proval of the facility's administrator, which rule, in my
opinion, was overly broad; (d) by posting, in early Decem-
ber, a notice concerning a free Christmas party in order to
dissuade their activities on behalf of the Union; and (e) by
the action of Administrator Janson in telling employee
Selver, on or about December 9, that the administrators of
the facility encouraged employees to vote no in the January
4 election for the reason that if the facility became unionized
it would hurt the employees' chances of wage increases, their
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job security, and the possibility for improvement in working
conditions. I find that this statement constituted a threat of
loss of employment, more onerous working conditions, and
the loss of wage increases if employees chose to be
represented by the Union. I find that Respondent violated
Section 8(a)(3) and (1) of the Act by terminating Sutton on
November 29, 1977, because of his activities in support of
the Union.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the
free now of commerce.
CONCLUSIONS OF LAW
I. 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. Respondent interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act (a) on or
about February 10, 1977, by issuing rules of conduct
containing an overly broad nosolicitation rule barring
soliciting, collecting funds, and/or circulating literature of
any nature during working hours without the approval of
the administrator of the nursing home property; (b) on
December 7, 1977, by the action of Administrator Janson in
advising Kathryn Selver, an employee, that if the employees
did not vote against the Union in the election scheduled for
January 4, 1978, Respondent's facility would become union-
ized which would hurt employees' chances of wage in-
creases, job security, and working conditions; and (c) giving
its employees a free Christmas party and each of them $10
along with a letter advising them of a wage increase.
4. By terminating Jon Sutton on November 29, 1977,
Respondent violated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that Respondent unlawfully discriminated
against Jon Sutton. I will, therefore, recommend that
Respondent offer him immediate reinstatement to his former
position, without loss of seniority or other rights or
privileges, and make him whole for any loss of earnings he
I In the event no exceptions are filed as provided by Sec 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
may have suffered by payment to him of a sum of money
equal to the amount he normally would have earned from
the date of the discrimination against him to the date of
Respondent's offer of reinstatement, in accordance with the
Board's formula set forth in F: W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Inasmuch as I have found that Sutton was discriminatori-
ly terminated, and the election results resulted in an equal
number of votes for and against the Union, with Sutton's
ballot challenged, it follows that his ballot should be opened
and counted by the Regional Director and the results
certified. He is directed to do so.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'
The Respondent, Notre Dame Medical Services, Inc.,
d/b/a Notre Dame Hills Convalescent Center, Belleville,
Illinois, officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or in any other manner discriminating
against any employee because of membership in or activity
in behalf of the Union or any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named or any
other labor organization, to bargain collectively through
representatives of their own choosing, to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement conforming to the provisions of
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Jon Sutton immediate reinstatement to his
former position without loss of seniority or other rights and
privileges and make him whole for any loss of earnings he
may have suffered by reason of Respondent's discrimination
against him, in accordance with the provisions in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
determine the amount of backpay due under the terms of
this recommended Order.
(c) Post at its premises in Belleville, Illinois, copies of the
attached notice marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for Region 14, after
being duly signed by a representative of Respondent, shall be
posted for 60 consecutive days thereafter, in conspicuous
' 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 Judgement
of the United States Courts of Appeals Enforcing an Order of the National
Labor Relations Board."
964
NOTRE DAME HILLS MEDICAL SERVICES
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
965