Parkview Gardens Care Center

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 47 (N.L.R.B. 1986)

PARKVIEW GARDENS CARE CENTER 47
Beverly Enterprises, Inc. d/b/a Parkview Gardens
Care Center and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America. Case 18-CA-9125
30 May 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 6 February 1986 Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Beverly En-
terprises, Inc., d/b/a Parkview Gardens Care
Center, Waterloo, Iowa, its officers , agents, succes-
sors, and assigns , shall take the action set forth in
the Order.
1 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In finding that the Respondent violated Sec . 8(axl) when St . Paul Ad-
ministrator Waalen told employees , that if they went on strike they would
have to resign from the Union in order to return to work, the judge
stated that employee Cindy Bakken testified she heard such statements on
16 February 1985 . Employees Michelle Webb, Elneice Pullin, and Alyce
Walter all credibly testified that Waalen made such statements on 16 Feb-
ruary and Webb and Bakken both credibly testified similar statements
were made on 19 and 20 February 1985 We adopt the judge's other find-
ings and conclusions concerning the three meetings.
cultural Implement Workers of America (the Union or
Charging Party). An amended charge was filed on 14
April 1985 and a complaint thereon was issued on 17
April 1985 alleging that Beverly Enterprises, Inc., d/b/a
Parkview Gardens Care Center (the Employer or Re-
spondent) coercively threatened, interrogated, and made
promises to employees in violation of Section 8(a)(1) of
the Act and further that Respondent violated Section
8(a)(5) of the Act by unlawfully withdrawing recogni-
tion from the Union, and thereafter unilaterally imple-
menting changes in wages, benefits, and working condi-
tions. On 7 May 1985 an amendment to the complaint
issued alleging that Respondent violated Section 8(a)(l)
of the Act by permitting solicitation of signatures for a
decertification petition while maintaining and enforcing a
no-solicitation rule. At the hearing, the complaint was
further amended to allege an incident of interrogation in
violation of Section 8(a)(1) of the Act. Answers thereto
have been timely filed by Respondent. Pursuant to notice
a hearing was held before me on 26 and 27 June 1985.
Briefs have been timely filed by the General Counsel and
Respondent, which have been considered.
FINDINGS OF 'F'ACT
1. EMPLOYER 'S BUSINESS
The Employer is a California corporation with an
office and place of business in Waterloo , Iowa, where it
is engaged in the operation of a nursing home facility
providing convalescent care to the aged and infirm.
During the past calendar year, the Employer derived
gross revenues in excess of $100,000 from its Waterloo
facility and derived gross revenues in excess of $10,000
from sales or performance of services directly to custom-
ers outside the State of Iowa . It purchased and received
at its Waterloo, Iowa facility products , goods, and mate-
rials valued in excess of $5000 directly from points out-
side the State of Iowa . The complaint alleges, the Em-
ployer admits, and I find that the Employer is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Larry Witherell Esq., for the General Counsel.
Howard E Cole, Esq., of Pasadena, California, for the
Respondent.
Walter Schneider, of Waterloo, Iowa, for the Charging
Party.
DECISION
STATEMENT OF THE CASE./
PETER E. DONNELLY, Administrative Law Judge. The
original charge was filed on 6 March 1985 by Interns-
' tional Union, United Automobile, Aerospace and Agri-
A. Facts'
As noted above, Respondent operates a nursing home,
caring for the aged and infirm in Waterloo, Iowa. On 22
i There is conflicting testimony regarding some of the allegations of
the complaint . In resolving these conflicts I have taken into consider-
ations the apparent interests of the witnesses . In addition , I have consid-
ered in the inherent probabilities, the probabilities in light of other events;
corroboration or lack of it; and consistencies or inconsistencies within the
testimony of each witness and between the testimony of each and that of
other witnesses with similar apparent interests . In evaluating the testimo-
ny of witnesses , I rely specifically on their demeanor and have made my
findings accordingly While apart from considerations of demeanor, I
Continued
280 NLRB No. 5
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 1983 the Union was certified as the collective-
bargaining representative of some 75 employees in a bar-
gaining unit described in the complaint as:
All full-time and regular part-time employees, in-
cluding nurses aides , medical aides , records clerk,
dietary aides , cooks, housekeepers , activity aides,
therapy aides, laundry workers and maintenance
employees ; excluding licensed practical nurses, reg-
istered nurses, office clerical employees , profession-
al employees , guards and supervisors as defined in
the Act.
Negotiations , in an effort to reach agreement on a con-
tract, were conducted thereafter without success until
February 1985, when International Representative
Walter Schneider, on 14 February 1985,2 sent a letter to
Respondent giving notice of the Union's intention to
strike. The letter reads:
This will serve as the official ten (10) day notifi-
cation from the International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW) and its affiliated Local
838, that unless we are able to resolve our differ-
ences for our first Labor Agreement by 7:00 A.M.
February 26, 1985, a strike of your facility will take
place at that time.
It would be my recommendation that we sched-
ule a series of consecutive day meetings in an at-
tempt to resolve our differences prior to this dead-
line.
My schedule is open-I am available any time.
On 16 February 1985 Joleen Waalen, administrator of
Respondent's facility in St. Paul, Minnesota, arrived at
Respondent's Waterloo, Iowa facility to assist in making
strike preparations. To that end she spoke at various
times to groups of unit employees covering those mat-
ters. While addressing employees shortly after her arrival
on 16 February, Waalen spoke about Respondent's con-
tinuing obligation to care for patients during a strike and
the work options available to employees in the event of a
strike. In this regard Michelle Webb, an employee, testi-
fied that on 20 February Waalen reiterated her remarks
of 16 February. Webb testified, "Well, she again basical-
ly just repeated everything they had told us on Saturday
[16 February]. Told us that they had received the strike
notice, and that preparations were being made and that
she again said that we'd have to resign from the Union if
we wanted to work or if we wanted to come back to
work if we went out on strike." Employees Cindy
Bakken, Elniece Pullin, and Alyce Walter all testified
that they were told by Waalen at employee meetings on
16 February that if the employees went on strike, they
would have to resign from the Union before they could
return to work.
Waalen denied having told employees that they would
have to resign to either continue working during the
have taken into account the above-noted credibility considerations, my
failure to detail each of these is not to be deemed a failure on my part not
to have fully considered it Walker's, 159 NLRB 1159 (1966)
2 All dates refer to 1985 unless otherwise indicated
strike or to return if they went on strike. Rather, Waalen
testified concerning the 16 February meeting, with re-
spect to the matter of resignation, "I told them that they
had a right to stay and work that they did not have to
go on stike, and if they were going to do that then, and
if they were dues paying members then they would have
the option of resigning from the union or talking to their
union representative about finding out what they could
do, and the possibility that there might be some fines or
some penalties that could be assessed to them if they de-
cided to work and did not go out on the strike." Waalen
was asked: "If a strike occurred, did you tell the employ-
ees that if they wanted to work at the facility, that is not
to go out on strike, that they would be required to resign
from the union if they wanted to work at the facility? I
see a blank expression on your face, do you understand
the question?" Waalen responded: "Yes. As I previously
stated it was in the context of if they were dues paying
members in that there might be a possibility of some
fines or penalties. We know that this does happen in case
of strike situations, that to possibly avoid these types of
fines or penalties they should resign from the union prior
to the strike notice date." However, lined out item five
of handwritten notes prepared by Waalen on the morn-
ing of 16 February, from which her talk was delivered,
was not so qualified. It read:
If emp. wants to work, and they are a dues paying
member, they must resign from the union before the
strike.
Waalen did not testify concerning the lined out language,
that is, why, how, when, or where it came to be lined
out. Neither did she make the statement which appears
as item five of the handwritten notes. In the absence of
such testimony, and especially in view of Webb's testi-
mony, I do not accept the assumption proposed by Re-
spondent in its brief that item five of the handwritten
notes was crossed out when prepared rather than after
the fact.3 Finally, in crediting the mutually corroborative
testimony of Webb, Bakken, Pullin, and Walters, I con-
clude that Waalen told employees at the 16 February
meeting that their continued employment as well as their
employment after a strike began was conditioned on
their resignation from the Union.
In another incident on 16 February, Beth Harvey, a
nurses aide who was at home on maternity leave until 18
March, received a telephone call from Ann Rogers, di-
rector of nursing, who was attempting to determine, for
staffing purposes, which employees intended to strike
and which intended to work. According to Harvey, she
was told by Rogers that if she went on strike she could
be terminated and wanted her answer within 2 days. By
letter to Rogers dated 18 February, Harvey complained
that she had not been given enough time to make the de-
cision, and stating that she would give Rogers her deci-
sion when her maternity leave ended on 18 March.
Rogers recalls a telephone conversation with Harvey,
2 Conlon testified that he could not recall Waalen having mentioned
anything about resignation . However, because Waalen testified that she
did mention resignation, Conlon's testimony must be discounted,
PARKVIEW. GARDENS CARE CENTER 49
but denies ever telling her that she would be terminated
if she went on strike. Rogers testified that she told
Harvey she wanted her to return when her maternity
leave ended, and only that any striking employee would
be permanently replaced. Having carefully reviewed the
record I credit Rogers, and conclude that she did not
threaten Harvey with termination if she joined the strik-
ers, particularly since, under the circumstances, any
threat would have been gratuitous and unnecessary at
that time because Harvey was not even scheduled to
return to work until 18 March. It is not improbable that
Harvey, not being particularly sensitive to words of art
in the world of labor relations, interpreted "permanently
replaced" to mean "terminated," particularly since the
immediate result would be the same, i.e., loss of employ-
ment.
In another 16 February incident involving Rogers and
nurses aides Brenda Jones and Laura Gillette, Jones testi-
fied that about 10:30 a.m. Rogers approached her and
Gillette, ' asking Jones if she was going to strike or not.
Jones testified that before she could answer Rogers told
her that "if I walked out that I would be through be-
cause I was on probation." Jones replied that "if that
was the case I'd probably have to stay and not walk
out." Rogers recalled a conversation with Jones and Gil-
lette in which she inquired whether Jones intended to
work in the event of a strike, but denies ever saying that
she would be fired if she went on strike, only that strik-
ers could be permanently replaced. Rogers concedes that
she reminded Jones that she was on "orientation," i.e.,
probation,'' but does not know why she said it. Because
it appears that Respondent was making an effort to con-
tinue patient care during the strike, it was not coercive
to ask these employees if they intended to work during
the strike to be able to adequately staff the facility to
ensure adequate patient care. Hovever, in these circum-
stances, I am satisfied that Rogers' remarks were coer-
cive to the extent that they suggested to Jones that she
would be discharged, particularly in view of her proba-
tionary status, if she elected to strike.
Waalen again addressed the employees on 19 and 20
February5 about matters dealing with preparing for the
strike set for 26 February. Webb testified that on 20 Feb-
ruary, Waalen repeated basically what she had said the
previous Saturday, 16 February, including reminders to
the effect that if the employees went on strike and
wanted to return to work, they would have to first
resign from the Union. Bakken testified that at a meeting
on 20 February Waalen told those employees assembled
that if they struck and wanted to return to work they
would have to write a letter to the administrator stating
that they would not be represented by the Union.
Waalen said that thereafter they would be considered for
employment along with new applicants as job openings
came up. Further, those who returned would come back
as new employees , without seniority. According to
Bakken, Waalen delivered essentially the same address
4 Rogers testified that orientation/probation is a 3-month period during
which employees may be discharged without notice
5 The parties stipulated that employee meetings were held on 16, 19,
and 20 February.
on 20 February, as 16 February, including statements to
the effect that striking employees who wanted to return
to work would have to advise Respondent that they had
resigned from the Union. Waalen, whose testimony in
this regard is corroborated by housekeeping aide Sandy
Buenneke, denies having made any such statement.
Waalen testified that her remarks were limited to certain
handwritten notes drafted by her on the morning of 20
February. Those notes treat, inter alia, the matter of how
striking employees could be considered for reemploy-
ment and do not contain any requirement that strikers
resign from the Union to return to work. However, in all
the circumstances, particularly because I have concluded
that Waalen made such a statement to employees on 16
February, it is not unlikely that she would have repeated
those remarks on 20 February and, in crediting the testi-
mony of Webb and Bakken, I so find.6
In another incident, at the conclusion of the meeting
on 20 February, therapy aide Marietta Bagby ap-
proached Waalen and they discussed such matters as em-
ployee protection and surveillance during the anticipated
strike. Bagby told Waalen that she had heard about some
unionized nursing homes' in Minneapolis and she asked
Waalen about them. According to Bagby, Waalen avoid-
ed the question by responding that there was a Beverly
Nursing Home in Minneapolis, but that it had been de-
certified and that those employees got a 3-percent raise
and an additional raise after that. Waalen also said that
she was not telling Bagby that the employees at the Wa-
terloo facility would get such a raise , only that it was an
example of what happened at one home in Minneapolis.
Waalen generally denied promising employees increased
wages or benefits, but did not testify about any conversa-
tion with Bagby. In these circumstances, I conclude that
Bagby's version is substantially accurate; however, I
cannot conclude that such a remark violates Section
8(a)(1) of the Act. This was essentially merely an obser-
vation being made by Waalen in response to Bagby's
question, and any coercive implication would have been
dissipated by Waalen's telling Bagby that this was "one
example," and not any representation that the same thing
would happen at the Beverly Nursing Home in Water-
loo.
About 19 February, after the decertification petition
had begun circulating among the employees, Doris Ost-
dahl, nursing supervisor, came into the janitor room
where Walter was getting supplies for her cart. Walter
testified that Ostdahl told her that a petition was being
circulated to decertify the Union and that if a certain
percentage, which Walter could not recall, signed the
petition then things could get back to normal. Ostdahl
also testified that he made such remarks, but that they
were in response to a question asked by another employ-
ee, who she thinks was either Betty O'Leary or Cather-
ine Arnold. In any event, Walter testified that later that
" The complaint also alleges that Respondent violated Sec . 8(axl) of
the Act by threatening striking employees that if they engaged in a strike
they would be required to submit a new application to be rehired; that
they would be rehired only at the mmium wage rate, and that they
would suffer a change in hours or work ; however , the record is totally
insufficient to support these contentions
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same day, as Walter was leaving the facility, and while
Ostdahl was on a break, Ostdahl asked her if she was
going to to sign the petition and Walter replied that she
would have to think about it. Despite Ostdahl' s denial, a
careful review of the testimony of both Walter and Ost-
dahl convinces me that Walter's version was the more
credible and I conclude that such interrogation concern-
ing Walter's intention about the decertification petition
was unlawful under Section 8(a)(1) of the Act.
Concerning the decertification petition, it appears that
Nancy Schares, a dietary cook, first raised the matter on
16 February after a meeting at which Conlon and
Waalen addressed the employees. One of the employees
asked Conlon how they could get the Union out. Conlon
told him that they would have to do it themselves.
Thereafter Schares pursued the matter with Conlon
asking him how this could be done. Conlon responded
that the employees could draw up a petition signed by 50
percent of the employees saying that they no longer
wanted a union, and "that would take care of it." There-
after, on 18 February , Schares asked Jean Biers, nursing
supervisor, to help her to word the heading for a decerti-
fication petition . Biers wrote out a heading that said,
"We the undersign [sic] no longer wish to be represented
by Local 838." Schares copied this on another sheet of
paper and left. Schares signed the petition on 18 Febru-
ary and by Saturday, 23 February, had obtained signa-
tures from majority of the unit employees.'
On 23 February Schares called Conlon from Biers'
office where they met. Schares told him that she had a
petition with 48 names and did not know what to do
with it. Conlon told her that she could either give it to
the National Labor Relations Board on Monday or give
it to him and he would take the appropriate action.
Schares then left , obtained an additional signature, and
about one-half hour later returned to Biers' office where
she gave the petition to Conlon , who then met with
Davis and Waalen. They went over a list of employees,
and after determining that a majority of the unit had
signed the petition, Conlon called Chad Spawr, Re-
spondent 's director of labor relations . After some discus-
sion, Conlon sent the petition to Spawr on Monday, 25
February. Also on 25 February Conlon held two staff
meetings at the facility. At these meetings Conlon read
the following prepared statement to the employees:
Respondent had in effect at this time a document entitled "Employ-
er's Policies," which contained a section captioned "Solicitations" which
reads:
Solicitation by salesmen or representatives of outside organiza-
tions, not associated with the day -to-day operations of the Center,
are prohibited during an employee 's working time or in areas fre-
quented by residents of the Center No written materials , circulars or
petitions are to be circulated . These restrictions apply to religious,
fraternal and similar organizations.
Each employee is expected to report any violation of this rule, or
the presence of any outside solicitor , to the Center office immediate-
ly.
Despite this prohibition , it appears that solicitations in violation of the
rule were conducted among and by both employees and supervisors.
These solicitations included cookies and calendars for the Girl Scouts,
pizzas for the Sweet Adobnes, T-shirts for the American Health Care As-
sociation, and Tupperware . It also appears that eggs were sold and dehv-
ered at this facility.
1. We have received a petition from the majority
of the union bargaining unit stating they no longer
wish the union to represent them.
2. In effect what that means is we as the employ-
er no longer have to recognize the union as the bar-
gaining agent for you our employees.
3. We greatly appreciate your support and as a
result of the action you employees have taken we
will be able to present to you within the week re-
garding benefits [sic] and wage increases.
I reline [sic] there will probably be some very un-
happy people when they hear this news as well as
some very, very happy people. We would ask that
we put all of this union business behind us and get
back to normal operation . If some individual chose
[sic] not to do that I can only remind them that we
will take whatever appropriate legal action to main-
tain the normal working operation of our facility.
Again I thank you and we will be getting back to
you.
Having thus concluded that the Union no longer rep-
resented a majority of Respondent's employees, Re-
spondent sent a mailgram dated 23 February from Spawr
to Schneider reading:
THE EMPLOYER IS IN POSSESSION OF OB-
JECTIVE EVIDENCE WHICH RAISES A
REASONABLE DOUBT THAT YOUR UNION
REPRESENTS A MAJORITY OF EMPLOYEES
IN THE ABOVE REFERENCED FACILITY.
ACCORDINGLY, THE EMPLOYER WITH-
DRAWS RECOGNITION FROM YOUR UNION
EFFECTIVE AT 9 O'CLOCK AM MONDAY,
FEBRUARY 25, 1985. ALL MEETINGS ARE
CANCELLED.
It is undisputed that about 28 February Respondent
unilaterally implemented a new wage and benefits pro-
gram known as the "Northern Division" program.
B. Analysis and Recommendation
1. The 8(a)(1) threats and interrogation
As noted above, I have concluded that Waalen in re-
marks made to employees on 16 and 20 February advised
them that if they wanted to continue to work, or if they
went on strike and later wanted to come back to work, it
would be necessary for them to first resign from the
Union. Such remarks are coercive since Respondent may
not legally condition employment on union membership
considerations and statements which impose such restric-
tions on employment are coercive within the meaning of
Section 8(aXl) of the Act.
With respect to the incident wherein Rogers, in con-
versation with Jones , indicated that in view of her proba-
tionary status she would be terminated if she went on
strike, these remarks are clearly a threat to Jones' em-
ployment in the event she elected to exercise her statuto-
ry right to strike , and as such violate Section 8 (axl) of
the Act.
PARKVIEW GARDENS CARE CENTER
As set out more fully above, it appears that Ostdahl
did advise Walters about the petition being circulated
and that signing by a certain percentage of employees
would get things back to normal . Later she asked Wal-
ters if she intended to sign it. In these circumstances, the
interrogation by Ostdahl was coercive and constitutes in-
terference by Respondent within the meaning of Section
8(a)(1) of the Act.
The General Counsel also contends that disparate ap-
plication of Respondent's no-solicitation rule constitutes
interference with employee rights under Section 8(a)(1)
of the Act.8 In order for the General Counsel to prevail,
she must show more than the mere existence of the rule9
and permitting the circulation of the decertification peti-
tion. The General Counsel must establish that Respond-
ent permitted solicitation of the decertification petition
while at the same time enforcing the no-solicitation rule
concerning other types of solicitation. The record does
not support this conclusion . What the record shows is
that Respondent did allow solicitation among its employ-
ees for other purposes, such as Girl Scouts , Sweet Ado-
lines, American Health Care Association , Tupperware,
and the sale and distribution of eggs . It is also clear that
Respondent 's supervisors were aware and involved in
these solicitations . In these circumstances , I cannot con-
clude that the rule was applied disparately to permit so-
licitation of the decertification petition.
2. The 8(aX5) refusal-to-bargain allegations
The General Counsel also alleges that Respondent, in
violation of Section 8(aX5) of the Act, refused to bargain
with the Union by unlawfully withdrawing recognition
from the Union and instituting new wages and working
conditions, i.e., the Northern Division program. The
General Counsel theorizes that because the decertifica-
tion petition was tainted by Respondent's unfair labor
practices, any withdrawal of recognition or unilateral
changes in wages or working conditions which depend
on the decertification petition for their validity are un-
lawful in violation of Section 8(a)(5) of the Act concern-
ing both the withdrawal of recognition and the unilateral
changes.
First, Respondent admits that it both withdrew recog-
nition from the Union and instituted the "Northern Divi-
sion" program . This being the case, the General Coun-
sel's position depends on whether the decertification peti-
tion was tainted. Because I have already concluded that
Respondent did not violate the Act by the disparate en-
forcement of the no-solicitation rule, I conclude that the
decertification petition was not tainted in that manner.
However , there remains the issue of whether the coer-
cion found in the statements made by Waalen to the em-
ployees and the coercive remarks by Rogers and Ostdahl
were sufficient to have tainted the decertification peti-
tion.
It is necessary in this regard to consider the nature of
the remarks and the context in which they were made.
s The General Counsel does not allege that Respondent unilaterally as-
sisted in the formulation and circulation of the decertification petition,
and that matter is not treated herein.
9 No contention is made that the rule as written is invalid.
51
As set out more fully above, Waalen addressed virtually
all the employees telling them, inter alia, that if they
wanted to keep working , or to return to work after they
struck, they would have to resign from the Union. After
the meeting on 16 February , Schares was advised by
Conlon that decertification could be accomplished by a
petition from 50 percent of the employees. Thereafter,
Biers drafted decertification language for the petition and
Schares obtained the signatures . Thereafter Schares
turned in the decertification petition to Conlon. The de-
certification then became the documentary basis for Re-
spondent's withdrawal of recognition and unilaterally in-
stituted a new employment program.
In matters concerning employer assistance in the initi-
ation and circulation of a decertification petition, the
Board has held, "In short, the essential inquiry is wheth-
er 'the preparation , circulation and signing of the petition
constituted the free and uncoerced act of the employees'
concerned."' Eastern States Optical Co., 275 NLRB 371
(1985), citing KONO-TV-Mission Telecasting Corp., 163
NLRB 1005 , 1006 (1967). In applying that principle to
the instant case, it is difficult to conclude that employee
support for the decertification was uncovered in circum-
stances where Respondent both prior to and during the
circulation of the petition was pressuring unit employees
to resign from the Union as a condition of their contin-
ued employment . It appears to me that the logical and
foreseeable impact of Waalen's coercive union resigna-
tion remarks and those of Rogers and Ostdahl would be
to induce employees to sign the decertification petition
then circulating , and having done so, satisfied Respond-
ent's demand that employees resign to continue to work
during the strike . Also, given the small majority who
signed the petition, i.e., 49 out of a unit of 94, it is entire-
ly possible that without this coercion no decertification
majority would have been acquired.
In short, when an employer insists on resignation from
a union as a condition of both continued employment
and reemployment after a strike, and who thereafter as-
sists in advising , drafting, and promoting a decertification
petition which essentially serves as a vehicle to accom-
plish that objective, the product of that effort is tainted
and may not be used to support a withdrawal of recogni-
tion from the Union based thereon.
Accordingly , I conclude that Respondent was not jus-
tified in either withdrawing recognition from the Union
or unilaterally instituting a new employment program,
and having done so, violated Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, in connection with Respondent 's operations de-
scribed in section I, above, have a close and intimate re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
Having concluded that Respondent unlawfully with-
drew recognition from the Union, I shall recommend
that Respondent recognize and bargain with the Union
as the collective-bargaining representative of its employ-
ees in the appropriate unit set out below.
Having further concluded that Respondent violated
Section 8(a)(5) of the Act by implementing the changes
in wages, benefits, and working conditions of the
"Northern Division" program , I shall recommend that
those wages, benefits , and working conditions in effect
prior to the implementation of the "Northern Division"
program be reestablished ; however, such reestablishment
is not to reduce any greater wages, benefits, or working
conditions presently in effect . I shall also recommend
that any backpay or moneys due to employees as a result
of this recommended remedy be provided with interest,
computed in the manner described in F W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).10
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By telling employees before and during the circula-
tion of the certification petition that they would have to
resign from the Union as a condition of their employ-
ment, Respondent violated Section 8(a)(1) of the Act.
4. By threatening employees with discharge in the
event they went on strike, Respondent violated Section
8(a)(1) of the Act.
5. By interrogating employees concerning their union
sentiments, Respondent has violated Section 8 (a)(1) of
the Act.
6. All full-time and regular part-time employees, in-
cluding nurses aides , medical aides, records clerk, dietary
aides, cooks, housekeepers , activity aides, therapy aides,
laundry workers and maintenance employees ; excluding
licensed practical nurses, registered nurses, office clerical
employees , professional employees, guards and supervi-
sors as defined in the Act, constitute a unit appropriate
for the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act.
7. At all times material herein the Union has been and
is the exclusive representative of the employees of Re-
spondent within the unit herein found appropriate for
purposes of collective bargaining.
8. About 25 February 1985 Respondent violated Sec-
tion 8(a)(5) of the Act by withdrawing recognition from
the Union as the collective-bargaining representative of
the employees in the above-described bargaining unit.
9. About 29 February 1985 Respondent violated Sec-
tion 8(a)(5) of the Act by unilaterally changing wages,
benefits, and other conditions of employment by unilater-
ally implementing a new employment program known as
the "Northern Division" program.
to See generally Isis Plumbing Co., 138 NLRB 716 (1962).
ed"
ORDER
The Respondent , Beverly Enterprises, Inc., d/b/a
Parkview Gardens Care Center, Waterloo, Iowa, its offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Telling employees that they would have to resign
from the Union as a condition of their employment.
(b) Threatening employees with discharge in the event
that they went on strike.
(c) Interrogating employees concerning their union
sentiments.
(d) Failing and refusing to recognize and bargain with
the Union by unlawfully withdrawing recognition from
the Union as the collective-bargaining representative of
the employees in the above -described unit.
(e) Unilaterally changing wages, benefits , and other
conditions of employment by unilaterally implementing
the employment program known as the "Northern Divi-
sion" program.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with the Union as the exclusive representative of all em-
ployees in the appropriate unit described above regard-
ing rates of pay, hours of employment , and other terms
and conditions of employment.
(b) Reinstitute , to the extent that wages, benefits, and
other working conditions are not reduced , those wages,
benefits, and working conditions in effect prior to the un-
lawful implementation of the "Northern Division" pro-
gram.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Waterloo, Iowa, copies of the
attached notice marked "Appendix." 12 Copies of the
notice, on forms provided by the Regional Director for
Region 18 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
11 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur.
poses.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
PARKVIEW GARDENS CARE CENTER 53
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees that they must resign
from the Union as a condition of their employment
WE WILL NOT threaten employees with discharge in
the event that they go on strike
WE WILL NOT interrogate employees concerning their
union sentiments
WE WILL NOT fall or refuse to recognize or bargain
with International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America by un-
lawfully withdrawing recognition from it as the collec-
tive-bargaining representative of our employees
WE WILL NOT unilaterally change wages , benefits, and
other conditions of employment
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL recognize and, on request, bargain collec-
tively with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America as the exclusive representative of all employees
in the appropriate unit regarding rates of pay, hours of
employment , and other terms and conditions of employ-
ment
WE WILL reinstitute, to the extent that wages, benefits,
and other working conditions are not reduced, those
wages, benefits, and working conditions in effect prior to
the unlawful implementation of the "Northern Division"
program
BEVERLY ENTERPRISES, INC, D/B/A PARK-
VIEW GARDENS CARE CENTER