Pleasant View Rest Home

National Labor Relations Board - Board Decisions

Dec 3, 1971

194 N.L.R.B. 426 (N.L.R.B. 1971)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laura E. Weber, d/b/a Weber Nursing Homes and
d/b/a Pleasant View Rest Home and Local 512,
Retail , Wholesale and Department Store Union,
AFL-CIO. Case 7-CA-3977
December 3, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 29, 1971, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
He also found that the Respondent had not engaged
in a certain other alleged unfair labor practice, and
recommended dismissal of those allegations of the
complaint. Thereafter, the Respondent and General
Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs, and the General
Counsel filed a brief in support of certain portions of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as' amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National. Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that Laura E. Weber, d/b/a Weber
Nursing Homes and d/b/a Pleasant View Rest Home,
the Respondent, Indianapolis, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order,
as modified below.
Substitute the following for paragraph 2(c) of the
Trial Examiner's recommended Order:
"(c.) Using said list, offer reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to
three employees as of October 5, 1970, to a fourth
employee as of October 10, 1970, to a fifth employee
as of October 17, 1970, to a sixth employee as of
October 30, 1970, and to the remaining employees to
the extent vacancies have occurred in nurses aide
positions after the strikers applied for reinstatement,
provided that the reinstatements of October 10 and 30
shall be to positions on the second shift and that any
person declining such a position, or any subsequent
opening not on the first shift, because of the hours of
work, - shall not lose her position on the list for
subsequent openings."
1 We note an obvious typographical error in the Trial Examiner's
Decision . In sec D,1. par. 3, the 6th sentence should read as follows: "But
the mere fact "Mader urged them to return for the half hour between 2.30
and 3 p.m. is insufficient basis for finding that they were discharged if they
failed to do so "
In his Decision the Trial Examiner, although not listing Brenda Coy as a
permanent replacement , apparently treated her as such because in his
recommended remedy he did not indicate that a striker was entitled to her
job from the inception of her employment, but only from October 18 when
she was transferred to housekeeping from the position of nurses aide. The
undisputed facts found by the Trial Examiner were that Coy applied for
work as "housekeeper, laundry, kitchen" and shortly after reporting for
work was transferred to that position . Other uncontradicted evidence
shows that her mother, Memweather, who was in charge of the day shift,
did not consider her suitable for the position of nurses aide due to her
emotional feelings about conditions of work in that job. In these
circumstances , the evidence does not establish that her employment as a
nurses aide was other than temporary. We shall, accordingly, modify the
Trial Examiner' s recommended remedy to provide that an additional
opening existed on October 5 rather than on October 18, to which a
discnminatee is entitled with backpay.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Indianapolis, Indiana, on February 9, 10, and 18,
1971,1 pursuant to a charge filed the preceding October 5
and a complaint issued November 30, presents questions of
discharge, reinstatement , and replacement arising out of a
labor dispute which originated at the Pleasant View
Nursing Home (hereafter sometimes referred to as "the
Home") on October 2. Upon the entire record,2 including
my observation of the witnesses, and after due considera-
tion of the briefs filed by General Counsel and by
Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, an individual proprietor, operates two
nursing homes in Indianapolis with total gross annual
1 All other dates mentioned herein except where otherwise indicated,
refer to the yeas 1970.
2 General Counsel's motion to correct certain errors in the transcript
was unopposed and is herewith granted
194 NLRB No. 69
PLEASANT VIEW REST HOME 427
revenue in excess of $250,000, and annually receives goods
and material valued in excess of $50,000 directly from
outside the State. The answer admits, and I find, that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that the
Charging Party, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events of October 2
1. The concerted activity and the discharges
For some days prior to Friday, October 2, a number of
the nurses aides employed on the day shift at the Home had
resented the fact that they had recently been required to
perform certain housekeeping duties in addition to their
normal tasks as aides. On that morning, by prearrangement
among themselves, the nurses aides, after punching in for
work, went to the dining area, instead of going about their
normal duties, and were sitting there when the head nurse,
Martha Meriwether, arrived shortly after 6:30 a.m
Meriwether inquired of them if they were on strike. There is
some conflict in the testimony as to whether they answered
in the affirmative or the negative, but the record is clear
that they told Meriwether they were not going to work until
they had an audience with Mr. C. O. Rader, the
administrator in charge of the Home, about their housek-
eeping complaint. Meriwether replied that Rader would not
be in until about 9 a.m., that the dining area was needed for
the operation of the Home, and that if they were not going
to work they should check out and go home. At this point
there is a sharp conflict in testimony, for most of the aides
testified that Meriwether said, "you're fired," whereas
Menwether, Wilkerson, and a night shift nurses aide who
was nearby, all denied that Meriwether said anything of the
sort.
I find that Meriwether did use the quoted phrase. I am led
to this finding by a number of factors-one of which, my
observation of the demeanor of the witnesses, is probably
sufficient. See N.L.R.B. v. Dinion Coil Co., 201 F.2d 484,
487-490 (C.A. 2, 1952); but cf. the dissenting opinions in
Mark Twain Marine Industries, Inc., 185 NLRB No. 101,
and Peoples Outfitting Co., 184 NLRB No. 47. In addition, I
note that Wilkerson was a completely unreliable witness as
she was prepared to brand as "false" testimony that the
aides even mentioned they wanted to see Rader, although
Meriwether herself testified to that effect. Jacobs, the night
aide, was not directly party to the conversation, was not
close to the table where the other girls were sitting, if indeed
she was inside the room at all, and could well have missed
hearing all that Meriwether said as, according to Jacobs,
Meriwether was facing the girls and had her back to Jacobs.
Meriwether admitted saying immediately after that "her big
3 The group in the dining area included 8 of the 10 women named in the
original complaint and 1, Wilkerson, whose name was added by
amendment at the hearing. Wilkerson had gone about her regular work
upon arriving that morning, but joined the others in the dining area upon
the insistent urging of some of the group. Absent from the group, but
included in the complaint, were Ethel Edwards and Ethel Ross. The former
was not scheduled to work October 2, and Ross was not scheduled October
2,3,or4
mouth" had caused her to be without help that morning, an
expression which makes sense if she had told the girls they
were fired, but does not seem appropriate otherwise as their
refusal to work the first part of the day was not due to her
"big mouth." Also Meriwether called Tabler, one of the
nurses aides then on vacation , asked if Tabler was with the
girls or "wanted to stay," and suggested that the aides who
had left would have trouble getting jobs. Further, the
treatment of Edwards, described infra, is more consistent
with the concept that Meriwether told the other aides they
were discharged than that she did not. Finally, to come full
circle, the conduct of the aides in question is consistent with
their understanding that they were told they were
discharged and, as stated at the outset, I find them credible
and credit their unanimous testimony that Meriwether so
told them.
The aides in question thereupon punched out and went to
the home of one of their number, Lucy Sullivan, to discuss
what to do next. Meanwhile Meriwether called Rader to
advise him of what had occurred. She also told him at that
time that the aides wished to speak to him about the
housekeeping duties .4 Rader told her to try to get the night
aides to stay on, to locate people on leave, and to arrange
for help to come from another nursing home operated by
Respondent. Meriwether was able to piece together enough
help from these sources to service the patients. Among the
people she telephoned was Ethel Edwards, an aide not
scheduled to work that day. Meriwether asked, but did not
order, Edwards to come in, telling her that the other aides
walked out. Edwards declined, stating that she supported
the other aides. Meriwether did not reach Ethel Ross, who
was not scheduled to work until the following Monday.
2. The aides return to the Home, receive their
paychecks, engage in picketing, and loin the Union
The aides returned to the Home shortly before 9 that
morning, having learned that Rader had arrived. As they
entered the Home, Rader came to meet them, telling them
in a rather excited fashion to get out. He testified that he
told them at that time that they were not discharged, but if
he indeed said anything to that effect his words were lost in
the confusion and he did not succeed in communicating
any rescission of the discharges to the aides. Although
Rader knew that the aides wanted to discuss their cleaning
grievance with him, he made no effort to do so at that time
or to suggest any time and place for doing so. The aides told
him that as they had been fired, they wanted their
paychecks, and Rader told them the checks would be
prepared. The aides then left the Home and returned to
Sullivan's. The group at the Home did not yet include Ethel
Edwards (Wilkerson's testimony to the contrary is
rejected),5 but Rader promptly instructed his secretary to
prepare final paychecks for all the aides here involved,
including Wilkerson and Edwards (but not Ross).
4 Rader denied that Menwether so advised him. I credit her testimony
that she told him, but the matter is of no great moment , and I attribute
Rader's testimony to a faulty memory rather than to deliberate falsehood.
5 Edwards' testimony, confirmed by other aides , is that she did not meet
the group until they returned to Sullivan's after seeing Rader Wilkerson
testified that Edwards was at Sullivan 's before they went to the Home. I
have already noted one error in Wilkerson 's testimony, and I also find that
her testimony in other respects is unworthy of belief.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The aides, this time accompanied by Edwards, went to
the office of the State Labor Board, where their complaints
about conditions at the Home set in motion an inquiry by
the State Board of Health. They then returned-to the Home
where they commenced picketing with handmade signs.
At about 11 a.m. Rader came to the gate and handed
paychecks to the pickets, but apparently Sullivan, Edwards,
and Beverly Mayes were temporarily absent from the
group. Rader also handed, or attempted to hand, to each of
the girls present the following written statement:
To the day-shift Aides:
This is to inform you that we assume since you
requested your checks, that you are voluntarily quitting
our employment. We want to make clear that you are
not discharged. We are hiring replacements to perma-
nately [sic ] replace you.
Several of the aides threw the paper back at Rader,
apparently indignant because in their view they were not
"voluntarily quitting" but had been "fired." In the noise
and confusion at the gate, augmented by the noise of
passing trucks on the nearby highway, Rader's reading of
the above statement was not fully audible.
Mildred Wilkerson, who was present at the gate, did not
receive a paycheck. Rader's secretary had heard from an
aide on the night shift that Wilkerson's participation in the
walkout had been the result of pressure from the other
aides. Wilkerson, not having received a check, went to the
office to inquire into her status. In a brief conversation with
Rader, in which Rader assured her that her housekeeping
duties would be minimal, she agreed to return to work the
next morning.6
The other aides who had not received checks at the gate
(Sullivan, Edwards, and Mayes) went to the office shortly
after 11 a.m., as they had heard their checks were there.
Each there received her check, and Sullivan also was
handed the statement quoted above but declined to accept
it. No such statement was offered to Edwards; the record is
silent as to whether one was given Mayes. Edwards, as
noted above, was not scheduled to work that day and,
unlike the other aides, had not requested a paycheck, but
Rader had instructed his secretary to include Edwards in
the group for whom paychecks were prepared.
The aides, except for Wilkerson, returned to the gate and
resumed picketing. Paul Brokamp, an organizer for the
Union, was passing by, observed the picketing, and
inquired of the pickets as to its cause. In the ensuing
conversation, all the pickets signed union cards authorizing
the Union to represent them.? Brokamp went to a nearby
telephone, called his office to send out regular picket signs,
and also arranged to have Virgil Terry, president of the
Union, come to the scene. Brokamp then returned to the
pickets; it was now about 2:30 p.m.
6 Wilkerson's testimony as to the time of this episode is confused Rader
placed it as about noon. The Company introduced an exhibit (Resp. Exh
11) which would place the episode as occunng after 2:30 p.m. The record
as a whole leads me to the conclusion that the document was prepared by
mistake and that the episode occurred at the time Rader stated. The parties
in their briefs seem to agree that it occurred after 2:30, which , of course, is
consistent with Exh . 11, but inconsistent with other evidence in the record,
3. The discharges are rescinded; Rader leaves the
office and later hires "replacements"
When Brokamp returned to the gate at 2:30, he observed
Rader reading the following statement to the assembled
pickets:
In order to make it perfectly clear that you have not
been discharged, we hereby invite you to return to your
regular job at Pleasant View Rest Home. Due to the
necessity of providing proper care for our patients, we
will be forced to immediately seek a replacement for
you if you do not return.
After reading the statement, which all the aides heard,
either directly from Rader or immediately thereafter from
their fellow aides, Rader pointed out to the group that their
scheduled shift did not end until 3 p.m., a half hour later.
He stated that they could return to work, but that if they
did not, replacements would be hired. Brokamp then
introduced himself to Rader, stating that he represented the
picketing aides and that he would discuss the matter with
Rader in the office in a few minutes.
Rader went back into the building and almost immedi-
ately left by another exit to go downtown to keep an
appointment on a matter unrelated to this litigation. Before
leaving he instructed his secretary and Meriwether to get
the names of potential permanent replacements for the
aides.
Brokamp waited at the gate for Terry, who arrived before
3 p.m., and the two promptly proceeded to the office,
hoping to discuss matters with Rader before the "deadline."
They learned, however, that Rader had left the building.
The union men and the aides then resumed picketing for
the rest of the day.
Rader returned to his office in the late afternoon or early
evening, and spent the next several hours on the telephone
arranging for a number of people to work the next day.
Details as to these "replacements" are described, infra.
B. The Events of October 3, 4, and 5
On the morning of Saturday, October 3, all the aides here
involved except Ross were scheduled to work, but only
Wilkerson reported for duty. A number of the
"replacements" hired by Rader the previous evening, with
some additional help from employees at the other nursing
home and from volunteer workers, provided the services
necessary to operate the Home. That morning, about 1 hour
after the day shift was scheduled to report, the union
representatives came to the Home, found Rader, and told
him that they wanted to discuss getting the aides back to
work. Rader told them to talk to his lawyer. The union
representatives made strenuous efforts on both Saturday
and Sunday to communicate with counsel for the Home,
but were unable to reach him. 11
On Sunday none of the aides in question reported for
work (Ross was not scheduled), and the necessary services
including the testimony that Wilkerson, who left at 3 p.m., spent a
considerable amount of time after her interview with Rader just watching
the picketing, and the evidence that Rader left the Home almost
immediately after reading the 2:30 p.m. letter to the strikers . Whether the
Wilkerson-Rader exchange occurred at noon or at 2:30 is not critical to the
case
7 The Union does normally represent employees of nursing homes.
PLEASANT VIEW REST HOME
were provided by the same group that worked Saturday.
During the afternoon , acting at the suggestion of the
Union, a number of the absent aides telephoned Rader,
advising him in each case that the caller was prepared to
resume work on Monday . Rader replied in each case that
the caller had been permanently replaced.
On Monday morning all the aides in question , including
Ross, appeared at the Home at the normal starting hour,
ready to go to work. Rader ordered all of them, including
Ross, to leave the Home, stating that they had all been
permanently replaced . The aides thereupon resumed their
picketing , joined now by Ross, who received her paycheck
in the mail about 2 weeks later.
C. The Replacements
As noted above Rader arranged for replacements to work
as nurses aides at the Home beginning Saturday , October 3.
The evidence with respect to these employees is as follows:
1. Brenda Coy, Mrs. Meriwether's daughter, reported
for work as a nurses aide on October 3 but was transferred
to housekeeping on October 18. In her 2 weeks as a nurses
aide, Coy worked 46-1/2 and 44 hours, respectively. In her
application dated October 3, Coy listed as the employment
she desired "housekeeper, laundry, kitchen" but not nurses
aide.
2. Mary Harvey reported for work October 3 and quit
the week of November 7. She operates her own nursing
home in Connorsville , Indiana, but is a friend of Rader and
was visiting his family when the events occurred . According
to Rader's testimony , Mrs. Harvey, a registered nurse,
"more or less was training people" and "was not a
permanent employee ." She was listed on the payroll as an
"aide" and paid al the rate normally given nurses aides.
3. and 4 . Dorothy and Debra Howard are Rader's niece
and great-niece, respectively . They reported for work on
October 3 and were still employed at the time of the
hearing. Dorothy Howard , however, runs errands and
works in the office "practically'every day" for "most of the
afternoon ." Sometime after Christmas the head nurse, a
supervisor , told a nurses aide that the head nurse expected
Dorothy Howard "would just be there until the strike was
over."
5. Brenda Keith had been employed in the dietary
section until the morning of October 3 when she was
transferred to nurses aide. She was not replaced in her
former job , and there is uncontradicted testimony that prior
to her transfer there was an extra employee in the kitchen.
Keith's hours as a nurses aide averaged 48 per week; the
striking aides normally worked a 40-hour week.
6. Ann Root, who reported for work on the morning of
October 3, is still employed as a nurses aide. Timecards in
evidence for Root showed that she works approximately 32
hours per week.
7. Gloria Stierwalt began work as a nurses aide on the
morning of October 3 and is still so employed . She had
worked for the Home on September 27 as a replacement in
the kitchen.
8. and 9 . Carolyn Ward and Carolle Wicker both
reported on the morning of October 3 and are still working
as nurses aides.
10. Dorothy Reynolds spoke to Meriwether on the
429
telephone on October 3, agreed to report on October 5, did
so (over an hour after the striking aides and Ross had been
refused employment), and went on sick leave , apparently
permanently, on October 24. Reynolds told Menwether
that she (Reynolds) would come to work part time "until
they could find somebody to replace me." During the first
week of Reynolds' employment Rader told her that she
"couldn't quit because he would have to hire somebody off
the picket line to replace [her ]." In that same conversation
Reynolds told Rader she would work "until [she] could be
replaced." Reynolds in her first 2 weeks worked 47 and 44
hours, respectively , and then left during the third week
because of illness.
11. Jessie James started work as a nurses aide on
October 4 and was still so employed at the time of the
hearing. She also worked at a local hospital , so her hours at
the Home fluctuate somewhat but apparently average
about 30 per week . When James agreed to return to the
Home on October 4 (she had previously been employed
there), she told Rader that she "would come in and work
until everything was settled with the girls. " She repeated
that to Rader on more than one occasion after she started
work.
12. Charlotte Hogan arranged with Rader by telephone
on Sunday morning , October 4 , to report the next morning,
and did so. She quit during the week ending October 17.
The foregoing 12 persons are apparently those to whom
Rader referred when on the morning of October 5 he told
Ross and the other 9 aides who were attempting to return to
work that they had been replaced by 12 employees. In
addition , however, the record shows that on October 9 a
nurses aide on the second shift (3 to 11 p .m.) quit and was
replaced by a new hire, Nora Flagg, one week later. The
record further discloses that on or about October 30 two
high school girls, Brenda Overton and Debra Robinson,
were hired at the Home in the nursing department, and
performed tasks similar to those performed by the nurses
aides. The combined weekly hours of these two girls
normally ranged from 28 to 44; they received pay increases
in January 1971 to the rates paid the striking aides, and
during the last 3 weeks for which records were available
(i.e., through January 1971) they worked a combined total
of 44, 42, and 40 hours , respectively . However, as far as the
record shows, they worked during the second shift.
Respondent introduced evidence that at all times it has
provided nursing care in excess of the mimmum required
by the State Board of Health . Rader testified that, although
in the space of 1 week Coy transferred to housekeeping,
Hogan quit, and Reynolds went on indefinite sick leave, he
was sufficiently staffed that he needed no extra help. On the
other hand , Tabler, one of the nonstriking nurses aides,
testified to a conversation late in October with Pearl
Knapp , who is the head nurse and admittedly a supervisor,
in which the latter stated that the Home was
"shorthanded ," that she had to work herself , and that she
could not "hire anybody until after the strike is over"
although "some days we have two or three don't show up."
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Concluding Findings
1. The status of the "strikers" up to the morning
of October 5
Unraveling this somewhat tangled skein, we start with a
protected concerted activity-the meeting in the dining
area in which the aides said they wanted to discuss with
Rader their complaints about their duties. Meriwether
converted this into an unfair labor practice strike when she
discharged the aides for their action. See Time-O-Matic,
Inc. v. N.L.R . B., 264 F.2d 96, 102 (C.A. 7, 1959), and cases
there cited . Rader in effect ratified this discharge when he
ordered that final paychecks be made for all the aides,
including Edwards, although at the time he did , Edwards
had not missed any work time, had not demanded her pay,
and had merely indicated her support of the other aides in
their expressed desire to meet with Rader . Also Rader made
no effort whatsoever to discuss matters with the aides when
they appeared at the Home for that purpose about 9 a.m. In
fairness to Rader it must be added that he was confronted
with an emergency , as he had to arrange for care of the
patients in the Home. On the other hand the nurses aides
enjoyed statutory protection, just as do employees of a
public utility , notwithstanding that their resort to collective
action exerts unusual pressure because of the need which
the employer's customers have for uninterrupted service.
In any event, by 11 a.m. Rader, apparently having
obtained sound legal advice in the interim, took steps to
rescind the discharge . He handed, or attempted to hand, a
statement to each of the aides in question (with the possible
exception of Edwards) which stated in part "you are not
discharged ." Unfortunately , a number of the aides rejected
the slips in some anger because the opening sentence stated
that "you are voluntarily quitting your employment " I find
that at that point Respondent had taken reasonable steps to
rescind the discharges . The aides at this point could have
gone into the office in an effort to speak with Rader and air
their complaints , but none of them did so. As already noted
the aides had not planned to do any work that morning
until they could meet with Rader, who normally arrived at
work about 9 a.m . Theoretically, therefore , the unlawful
discharge that morning deprived the aides, who were
scheduled to work , of compensation from about 9 a.m. to
about 11 a.m. The amount lost is necessarily highly
speculative , as there is no way of knowing whether or when
the aides would have started to work, but would appear at
most to be 2 hours per person. I am inclined to regard that
under all the circumstances of the case as de minimis.
At 2:30 p.m. Rader read another message to the aides
which unequivocally invited them to return to their jobs.
The record is clear that all the aides here involved (except
for Ross, who was not present on Friday , and Wilkerson,
whose reinstatement had already been accomplished) were
aware of this offer. General Counsel suggests that the 2:30
statement was in the form of an ultimatum because Rader
said that they would be replaced if they did not return
immediately . I find that Rader's statement , "we will be
forced to immediately seek a replacement for you," did not
a In the instant case the rescission of the discharge caused the
employees to revert to the status of economic stokers, not unfair labor
preclude the aides from claiming their old jobs the
following morning . To be sure, Rader arranged for
replacements to report the next morning, a step of
necessary prudence in view of his obligation to the patients
as he was uncertain whether the strikers would return. But
the mere fact that Rader urged them to return for the half
hour between 2:30 and 3 p .m. is sufficient basis for finding
that they were discharged if they failed to do so.s
It is, of course , highly unfortunate that Rader left the
office without waiting to see Brokamp and Terry, who
represented the aides , and who wanted to discuss the terms
of their returning to work. The Union was not the statutory
bargaining representative ; it represented at the time only 9
aides of the first shift , and the Home employed well over 20
aides. But Brokamp and Terry were authorized to speak for
the strikers , and the whole episode might have been
satisfactorily resolved had Rader given them a chance to do
so. Indeed , the entire affair up to this point could have been
avoided or averted if Meriwether had not told the girls they
were fired, if Rader had met with them at 9 a.m ., or if he
had waited for Brokamp and Terry . But Rader's failure to
meet with the union people , howsoever unfortunate, was
not an unfair labor practice.
If the striking aides had reported for work on Saturday
morning, and if Respondent had declined to reinstate them,
a nice question would have been raised as to whether they
had been replaced under the doctrine recently reiterated in
H. & F. Binch Co., 188 NLRB No. 98, that replacement
becomes effective when the employer concludes definite
arrangements with the replacement . Rader testified that he
would have reinstated the aides , and in any event they did
not show up for work that morning. At a fairly early hour,
but well after the start of the shift , union representatives
saw Rader , but at that time the replacements were already
at work. On Sunday several of the aides told Rader they
would report for work Monday, and he replied that they
had been replaced. Nevertheless they all appeared for work
on Monday , at which time (except for Ross) they were in
the status of strikers who had allegedly been replaced. We
turn, therefore , to a consideration of the replacement
picture on and after October 5.
2. The rights of the strikers on and after
October 5
On the morning of October 5 the nine striking nurses
aides (i.e., those who had been scheduled to work Saturday
and Sunday but had not done so) reported for work in a
group, accompanied by Ethel Ross, who had been on leave
during the last 3 days and had not missed any work. When
the group announced to Rader that they were reporting for
work, he told all of them (including Ross) that "you've been
replaced with twelve other girls." The aides, including Ross,
went out to picket, and Ross received her paycheck in the
mail some days later.
Insofar as Ross is concerned , it is probable that Rader
simply erred in including her with the striking employees.
He had no basis for replacing her other than the belief that
she had made common cause with the others. Perhaps if she
practice stokers, as the discharge was, up to that point , the sole unfair
labor practice
PLEASANT VIEW REST HOME
had asserted herself at the time and apprised him of all the
facts, he would have permitted her to work. But on the
record as made, Rader in effect discharged her, and
Respondent cannot escape liability because Ross did not
try to argue with Rader at the time. Just as an employer
violates the Act for discharging an employee out of a
mistaken belief that he has engaged in union activity, so
Respondent violated the Act by discharging Ross because
of its mistaken belief that she engaged in concerted activity.
N.L.R.B. v. American Casting Service, Inc., 365 F.2d 168,
174 (C.A. 7, 1966); see also Atlas Linen and Industrial
Supply, 134 NLRB 1230, 1232, adopting 130 NLRB 761.
As to the remaining 9 nurses aides (or all 10 , if I am in
error as to Ross), their position as economic strikers
applying for reinstatement entitled them to any jobs filled
by temporary replacements and to any vacancies thereafter
occurring. The Laidlaw Corporation, 171 NLRB No. 175,
enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920.
At the time the strikers reported for work on Monday,
October 5 ,, Respondent allegedly had hired the 12
replacements discussed above. Of these, Rader admitted
that Mary Harvey was not a permanent replacement, and
James and Reynolds had made it clear that they would
work only until the strike was settled. Subtracting these 3
from the 12 leaves 9 replacements for the 10 aides, but as
already noted Ross was an immediate victim of discrimina-
tion , and at this point in our discussion we are still left with
9 strikers. General Counsel argues that Keith should not be
considered a permanent replacement as she was transferred
from the dietary unit to replace a striker . But Keith's job in
dietary was not filled, and Rader testified that the Home
had need for only the four remaining employees in dietary.
I therefore cannot count Keith as a temporary replacement.
Ann Root and Dorothy Howard, however, did not work
full shifts as nurses aides, and hence together can be
considered as only a single replacement. This affords room
for reinstating as of October 5 one more striker in addition
to Ross. On October 9 an aide on the second shift quit,
thereby creating a second vacancy which should have been
offered to a striker.9 In the week ending October 17, Coy
transferred to housekeeping and Hogan quit , thus creating
two more vacancies . In short, as of the time of the hearing
there were six permanent replacements employed on the
first shift (Keith, Debra Howard, Stierwalt, Wicker, Ward,
and the combination of Root-Dorothy Howard) leaving
four vacancies on that shift, plus the vacancy created on the
second shift. The failure to recall five of the aides (Ross and
one other on October 5, another on the second shift after
October 9, and two more a week later) violated the Act
under the Laidlaw doctrine. It also, of course, reconverted
the strike into an unfair labor practice strike.
Respondent argues that it has been fully staffed at all
times. In part this results from the hiring of a replacement
on the second shift, by the hiring of the high school girls at
the end of October, and by the continued employment of
9 It is, of course , conceivable that none of the strikers would accept a
job on the second shift Should this prove to be the case, no monetary
liability will result from the failure to offer that job to a striker.
10 This has later developed into a full-time job.
11 General Counsel urges that the refusal to reinstate the strikers was in
part the result of Respondent's resentment over their having joined the
Union, and was thus violative of Section 8(a)(3) as well as of 8(a )(1). I do
431
James despite her statement that she would work only until
the strike was settled . Further, the adequacy of the staffing
is open to some question in the light of Knapp 's comment
to Tabler that the Home was shorthanded . In any event,
granting that the Home is meeting the minimum standards
of the State Board of Health, the fact remains that prior to
the strike it had full time positions for the 10 aides in
question, and under the analysis detailed above 5 of those
10 have been wrongfully denied reinstatement, as the
overall needs of the Home have not been changed.
Finally, a question arises as to the jobs filled by the high
school girls after October 31. These were on the second
shift , and, at least at first , amounted, in terms of combined
hours, to less than one full-time job , although the hours
later increased to equal a single full -time job . In terms of
duties and of compensation , they were for all intents and
purposes nurses aides . Moreover, in the light of Rader's
avowed hostility to "hiring off the picket line" and of
Knapp's recognition late in October that she was
"shorthanded" it is a reasonable inference that Respon-
dent's need for these two new jobs arose, at least in part,
from the adjustments occasioned by employing inexperi-
enced aides on the first shift. I therefore find that
Respondent should have offered employment to one of the
strikers for at least a half-time job on the second shift
beginning October 30,10 and that its failure to do so further
violated the Act.11
CONCLUSIONS OF LAW
1. By discharging a number of nurses aides on October
2 because they engaged in a protected concerted activity
Respondent engaged in an unfair labor practice affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
2. Respondent effectively rescinded these unlawful
discharges on October 2, but on October 5 committed the
same unfair labor practice with respect to Ethel Ross
because of its mistaken belief that she had engaged in a
concerted activity.
3. Respondent by failing to offer reinstatement to
strikers when vacancies arose after their unconditional
request for reinstatement engaged in an unfair labor
practice affecting commerce within the meaning of Sections
8(a)(1) and 2 (6) and (7) of the Act.
I shall recommend that Respondent cease and desist
from its unfair labor practices , that it offer reinstatement to
Ethel Ross, with backpay from October 5, 1970,12 that it
offer reinstatement to the nine striking aides to the extent
that their jobs were not filled by permanent replacements or
that other comparable positions became available, that it
make the reinstated strikers whole for any losses incurred
from the delay in reinstating them, and that it place the
remaining strikers on a preferential hiring list. More
specifically, as discussed above, in addition to Ross, one
not draw the inference that the advent of the Union contributed to
Respondent's action . In any event the remedy is the same , whether the
violation was of both subsections or only of one.
12 Assuming arguendo that I am in error in finding a specific violation in
Ross' case , she is at the worst relegated to a panty with the other strikers
Of course , if Ross is not reinstated as of October 5, this creates a vacancy
on that date for someone else.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
striker should be reinstated with backpay from October 5,
another on the second shift with backpay from October 10,
two more with backpay from October 17, and a sixth with
backpay from October 30, with the latter's backpay to be
computed by using the combined earnings of Robinson and
Overton as a measure. In addition any nurses aide
vacancies occurring since the date of the hearing must be
offered to the strikers, with backpay from the date of the
vacancy. Also Respondent cannot continue employing
James, who was only a temporary replacement, and Flagg,
Overton, and Robinson, who were hired subsequent to the
strikers' application for reinstatement, unless it has offered
reinstatement to each of the strikers.
The computation of backpay in a case of this nature is
fraught with grave difficulties. Suppose, for example, that
as of October 5 striker A should have been offered
reinstatement and would have accepted it, but by the time
of compliance A no longer desires the job and it goes to
striker G, as B, C, D, E, and F are reinstated to other jobs.
Equitable considerations would seem to require that A
receive backpay up to the time she would have declined
reinstatement, and that the backpay after that date should
go to G. Problems of this nature are best left to compliance
negotiations, and can -be the subject of further proceedings
if not amicably resolved. To facilitate compliance, I shall
recommend an order directing Respondent to reinstate
Ross and to list the nine strikers in the order in which it
would have offered them reinstatement, using any fair,
equitable, and lawful method (such as seniority, for
example) in compiling the list. Such a list should be
furnished to the Regional Director for Region 25, to the
Charging Party, and to each of the strikers. It will serve as
the basis for offering reinstatement to the places already
specified and to subsequent vacancies which may occur
prior to the time of compliance with this decision, and, to
the, extent any names remain on the list, they will constitute
the preferential hiring list mentioned above. Finally, I
should add that nothing herein is intended to preclude any
other division of the total net backpay which may
commend itself to the affected parties, such as, for example,
an equal division among all, the persons named in the
original complaint as victims of unlawful treatment. All
sums due under this recommended Order shall be
computed in accordance with the formulas set forth in F.
W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. As previously noted I
consider the time lost on October 2 because of the unlawful
discharges speculative and de minimis.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 13
ORDER
Respondent Laura E. Weber, doing business as Weber
13 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
Nursing Homes and as Pleasant View Rest Home, her
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate any employees
because such employee has engaged with other employees
in concerted activity for mutual aid or protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Prepare a list, in the manner prescribed in the section
of the Trial Examiner's Decision entitled "The Remedy," of
the 10 employees, to whom it refused employment on
October 5, 1970, listing the employees (headed by Ethel
Ross) in the rotation in which it would offer them
reinstatement to positions as nurses aides at Pleasant View
Rest Home. -
(b) Serve copies of said list upon each of the 10
employees, the Regional Director for Region 25, and the
Charging Party.
(c) Using said list, offer reinstatement to their former
jobs, without prejudice to their seniority or other-rights and
privileges, to two employees as of October 5, 1970, to a
third employee. as of October, 10, 1970, to a fourth and fifth
employee as of October 17, 1970, to a sixth employee as of
October 30, 1970, and to the remaining employees to the
extent vacancies have occurred in nurses aide positions
after the strikers applied for reinstatement, provided that
the reinstatements of October 10 and 30 shall be to
positions on the second shift and that any person declining
such a position, or any subsequent opening not on the first
shift, because of the hours, of work, shall not lose her
position on the list for subsequent openings.
(d) To the extent that any names remain on the list after
compliance with the foregoing provisions, retain the list as
the basis for offering reinstatement when subsequent
vacancies occur.
(e) Make whole the reinstated employees for losses
sustained as a result of the delay in reinstating them,
following the formulas prescribed in the section of the Trial
Examiner's Decision entitled "The Remedy."
(f) Notify each of the employees on the above-mentioned
list, if presently serving in the Armed Forces of the United
States of her right to full reinstatement or to preferential
listing upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the
Armed Forces.
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, as well as all other records necessary to
analyze and compute the amount of backpay due under the
terms of the recommended Order.
(h) Post at the Pleasant View Rest Home copies of the
attached notice marked "Appendix." 14 Copies of said
be deemed waived for all purposes.
14 In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
PLEASANT VIEW REST HOME 433
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director for Region 25, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.15
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF, THE NATIONAL LABOR RELATIONS BOARD."
15 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 25, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
nurses aides not hired as permanent replacements and
any persons performing the work of nurses aides hired
after October 5, 1970:
Norma Kay Alte Beverly Mayes
Bette A. Biggs Ethel Ross
Ethel Edwards Lucy Sullivan
Rose Hildebrand Gloria Tapp
Sharon Kesler Nita Taylor
To the extent that nurses aide positions are not now
available for any of the above-named employees, WE
WILL place them on a preferential hiring list for
vacancies as they occur.
WE WILL make whole the employees we reinstate for
any losses they incurred as a result of their not having
been reinstated when positions first became available
which they could fill, including two positions on
October 5, 1970, and four more positions later in that
month.
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 refuse to reinstate any
employee because that employee has gone on strike or
has otherwise engaged with fellow employees in
concerted activity for mutual aid or protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any employee in the exercise of
his right to join or assist a labor union or to engage in
other concerted activity for mutual aid or protection.
WE WILL reinstate to their positions as nurses aides
the following employees to the extent that positions are
now available for them, discharging if necessary any
LAURA E. WEBER, D/B/A
PLEASANT VIEW REST
HOME
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. '
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 614
ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.