Regency Manor Nursing Home

National Labor Relations Board - Board Decisions

Jul 31, 1985

275 N.L.R.B. 1261 (N.L.R.B. 1985)

REGENCY MANOR NURSING HOME ' `
Jean Foust, Sole Proprietor , doing business ' as'Re-
gency Manor Nursing Home and United Food
and Commercial Workers International Union,
Local 1099, AFL-CIO-CLC. Cases ' 9-CA-.
,19047 and 9-RC-14151
31 July 1985
DECISION AND-ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On- 8 December 1983 Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a.supporting brief.
The National Labor Relations Board has delegat-
ed its. authority in this proceeding to a three-
member panel. , •
The Board has considered the decision and the
record in light of the 'exceptions and brief and has-
decided to affirm the judge's rulings,, findings,' and
conclusions and to adopt the • recommended Order
as modified.
We agree with the judge that the Respondent
committed. various violations of Section. 8(a)(1),2
unlawfully discharged Melvin Hughes and Nancy.
Helton,3 and unlawfully, coerced employees into
accepting "supervisory" -positions ina scheme to
undermine union support among employees and to
interfere with the employees' right to vote in the
Board-conducted election. We also agree that the
challenges to the ballots of Melvin Hughes, Nancy
Helton,-Joyce Miller, and Beverly Smith should be
overruled and their ballots opened and counted.4
Finally, we agree that the Respondent should be
ordered to bargain with the Union in the appropri-
ate unit.5
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless-the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB '544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings -
2 We shall correct the judge's recommended Order. to reflect his find-
ing, with which we agree, that the 'Respondent' unlawfully threateiied to
close its doors in the event of a strike - - ' '
-
'
3 In discussing Helton's discharge, the judge misstated the Board's
Wright Line test Under that test, once the General Counsel makes out a
prima facie case of discrimination, the burden shifts to the respondent to
demonstrate that it would have taken the same action even in tfie'absence
of the employee's protected activity Wright Line, 251 NLRB 1083, 1089
(1980) Despite that misstatement, the judge's analysis and conclusion
were correct -
4 In overruling the challenges to' the ballots of Miller and Smith, we
rely on the judge's finding that neither Miller nor Smith assumed supervi-
sory duties despite the' Respondent designating them supervisors' In so
doing, we do not rely on the judge's discussion of Stotler Industries; 244
NLRB 144 (1979)
5 We modify the Judge's decision to date the bargaining obligation as
of the first unfair labor practice (30 September 1982), rather than the
Union's demand for recognition (13 September 1982) Pope Maintenance
Corp, 228 NLRB 326 fn 2 (1977) In addition, we shall modify the rec-
ommended Order to provide that the Union is entitled to both a bargain-
1261
We do not agree, however, with the judge's rec-
ommendation - that -the challenge to Sharon
Strause's ballot should be overruled. As found- by
the judge, Strause was not coerced into accepting
the, position of resident care coordinator and that
position clearly was vested with supervisory au-
thority. Accordingly, we find that Strause was in-
eligible to vote in'the election and the challenge to
her ballot is sustained.
In addition, we disagree with the judge's findings
that-Chief Administrator Pat Schroer's statements
to various employees that they could lose benefits
if they chose to be represented by the Union were
unlawful. Our review of the record reveals that
these statements were made in the context of a de-
scription of the give and take of future collective
bargaining. Thus, Schroer told employees that the
bargaining process could yield losses of current
benefits in exchange for gains of other benefits.
Viewed,in. its proper context, we find such a state-
ment lawful.6
ORDER
The National Labor Relations Board adopts the
recommended Order of - the administrative law
judge as modified below and orders that the Re-
spondent, Jean Foust, Sole Proprietor, doing busi-
ness as Regency' Manor Nursing Home, Independ-
ence, Kentucky, her agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied. -
1. Substitute the following for paragraph 1(c).
"(c) Threatening employees with discharge or
change of jobs for ' assisting or supporting the
Union or any other labor organization; threatening
employees that it would close its doors in the event
of. a - strike; promising or granting benefits to em-
ployees to induce them to refrain from supporting
the Union or any other labor organization; creating
and, by threats and coercion, assigning supervisory
job classifications to employees in order to under-
mine union. support among -employees or in order
to, interfere with their right to vote. in Board-con-
ducted -elections." . , -
mg order and a certification of representative in the event the revised
tally of ballots shows that it won the election See Gordonsville Industries,
252 NLRB 563, 604 (1980), and the cases it cites
In finding a bargaining order appropriate Chairman Dotson relies par-
ticularly on'the finding that the Respondent concocted and implemented
a scheme whereby it sought to and did coerce employees into accepting
"supervisory" positions in an effort'to preclude prounion employees from
voting in the election Such actions seriously impair the integrity of the
Board's electoral process, making it highly unlikely that a free and fair
election could be held -
Member Johansen agrees that a bargaining order is appropriate and
finds it unnecessary to .pass on the standards espoused by Member
Dennis
c See Hasa Chemical, 235 NLRB 903, 908 (1978)
275 NLRB No. 171.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the following for paragraph 2(b)..
"(b) Recognize and,. on request, bargain with the
Union as the exclusive representative of the em-
ployees in the- appropriate unit set forth above on
terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding
in a signed agreement."
3. Substitute the following for the paragraph fol-
lowing 2(f).
"IT IS FURTHER ORDERED that the challenges to
the ballots of Melvin Hughes, Nancy Helton, Joyce
Miller, and Betty Smith having been overruled,
they shall be opened and counted and a revised
tally of ballots be issued and served upon the par-
ties. If 'the tally shows a majority vote for the
Union, then the Union shall be certified as repre-
sentative in the above appropriate unit. If the re-
vised tally fails to show that the Union has 're-
ceived a majority of the valid ballots counted, the
election shall be set aside and the representation
case dismissed. See Gordonsville Industries, 252
NLRB 563, 604-605 (1980)."
4. Substitute the attached notice for that of the
administrative law judge.
MEMBER DENNIS, concurring.
I join my colleagues in adopting the judge's deci-
sion with the exceptions stated in the majority
opinion. I also agree, for the reasons set forth
below, that a bargaining order is appropriate.
Former Chairman Miller observed more than a
decade ago, and it remains true today, that no deci-
sional task "has more perplexed this Board, or con-
founded the courts which' review our decisions,"
than determining "whether an order to bargain is
an appropriate remedy for employer interference
with rights protected by Section 7 of the Act."
General Stencils, -195 NLRB 1109, 1111 (1972) (dis-
senting opinion). ' The difficulty is due largely to
the unique and general standards we must use.
First, in "exceptional" cases of "outrageous" and
"pervasive" unfair labor practices, a bargaining
order is justified because traditional 'remedies
cannot eliminate the coercive effects of the miscon-
duct, and a fair election cannot be held. NLRB v.
Gissel Packing Co., 395 U.S. 575, 613-614' (1969)
(hereinafter Gissel category 1 cases). Second, in
"less extraordinary cases marked by less pervasive
practices," the Board may consider "the extensive-
ness of an, employer's unfair labor practices in
terms of their past effect on' election conditions and
the likelihood of their recurrence in the future." If
"the possibility of erasing' the effects of past prac-
tices and of ensuring a fair election (or fair rerun)
by the use of traditional remedies, though present,
is slight, and . . . employee sentiment once ex-
pressed through cards would, on balance, be better
protected -by a bargaining order, then such, an
order should issue . .. . ." • Id. at 614-615 (Gissel
category 2 cases).' Finally, in cases of "minor or
less extensive unfair labor practices," a bargaining
order is not justified. Id. at 615 (Gissel category 3
cases).
The Board has not made its perplexing task any
less difficult by its proclivity- for issuing or not issu-
ing bargaining orders "without .rhyme, reason or
differentiating factors other than . . . conclusory
statements ."2 The result has been inconsistent deci-
sions , arbitrary results, and repeated circuit court
refusals to enforce Board bargaining orders on the
ground that they lack reviewable standards and
analysis.3 Accordingly, I find -if necessary to out-
line, in necessarily broad terms,-.my views on how
the Board should determine whether a bargaining
order is appropriate.4
In -my opinion, whether a bargaining order is ap-
propriate depends. principally on two factors:' (1)
the nature of the violations committed, and' (2) the
pervasiveness of the violations. In Gissel category 2
cases , a third factor may, be-considered: develop-
ments after the violations were committed' that
mitigate the need for a bargaining order.
1. HOW TO DETERMINE WHETHER A
BARGAINING ORDER IS APPROPRIATE
A. The Nature of the Violations Committed
Over the years, a consensus has developed that
certain violations of the Act are highly coercive:
These so-called hallmark violations include plant
closings, threats of plant closure or loss of employ-
ment, discharge or other serious adverse action
against union adherents, and grants of significant
benefits to employees.5 Because of the seriousness
of the conduct, hallmark violations "may reason-
ably be calculated to have a coercive effect on em-
ployees and to remain in their memories for -a long
period."6 In addition, hallmark violations are par-
' In both Gissel category 1 and 2 cases,'proof of majority status is re-
quired before a bargaining order can issue See my concurring opinion in
Gourmet Foods. 270 NLRB 578 (1984)
2 NLRB v Jamaica Towing, Inc, 632 F 2d 208, 215 (2d Cir 1980)
3 See, e g , Jamaica Towing, supra, NLRB v Armcor Industries, 535
F 2d'239 (3d Cir 1976), Peerless of America, Inc v NLRB, 484 F 2d 1108
(7th Cir '1973), NLRB v. Kaiser Agricultural Chemicals, 473 F 2d 374 (5th
Cir 1973)
4 My views draw extensively on former Chairman Miller's dissent in
General Stencils, supra, and the Second Circuit's opinion in Jamaica
Towing, supra
See Jamaica Towing, 632 F 2d at 212-213, General Stencils, 195
NLRB at 1112-13 (dissenting opinion)
6 Jamaica Towing, 632 F 2d at 212-213 As- former Chairman Miller
stated, the grant of significant benefits and the discharge of principal
union adherents demonstrate that the employer 'will oppose the union by
unlawful means and that employees who support it do so at their grave
peril The message is communicated to all by means which will be clear
4 Continued
REGENCY MANOR NURSING HOME 1263
titularly resistant to traditional remedies . Unlawful-
ly discharged employees typically are not offered
reinstatement for-months or even years , and "thus
the coercive effect of the discrimination is unlikely
ever to be undone ."7 Similarly, because Board
orders do not require the recision of unlawfully
granted benefits such as wage increases , the effect
of the employer ' s misconduct is not erased.
By contrast , less serious violations, such as inter-
rogations , promises of benefits , threats of loss of
benefits, and unlawful expressions of antiunion re-
solve , are not necessarily charged with as coercive
and longstanding an effect . The substance of the re-
marks, while unlawful , is less grave than a threat of
plant closure ." In addition , "talk" is generally less
likely to be taken as seriously as actions . Employ-
ees may disbelieve promises of benefits or they
may view them as an expected ploy or stratagem.
Threats of loss. of benefits may be discounted by
employees who view unionization as an effective,
means of combating such tactics . Although such
conduct is unlawful , one cannot presume a lasting.
effect on election conditions.9
Because non-hallmark violations are less serious,
they "must either be numerous or be coupled with
some other factor intensifying their effect before
they will fall within Gissel's second category and
support an order to bargain."10
B. The Pervasiveness of the Violations
As discussed above, hallmark violations are
highly coercive and have a lasting effect on em-
ployees. " [E]ven with ' respect to these `hallmark-
violations,"' however, "a bargaining order may be
denied for lack of proof of pervasiveness . . . ." I 1
to all In the matter of employer resistance to employee rights, actions do
indeed speak louder than words" General Stencils, 195 NLRB at 1112-13
(dissenting opinion ) While hallmark violations often involve completed •
actions rather than statements , certain remarks (such as . threats of plant
closure) rise to the hallmark level Thus, although a threat of plant clo
sure does not involve completed action, it is "more coercive than any
other threat ," because it "is the one serious threat of economic disadvan-
tage which is wholly beyond the influence of the union or the control of
the employees " Such a threat "has long been recognized as a uniquely
destructive tool " Id at 1113
7 General Stencils, 195 NLRB at 1112 (dissenting opinion)
8 See discussion of plant closing threats in fn 6, supra
9 See Jamaica Towing , 632 F 2d at 214, General Stencils, 195 NLRB at
1113 (dissenting opinion ) Former Chairman Miller's General Stencils dis-
sent identifies three related questions that-are useful in evaluating threats
I What actions were threatened'
2 Were the threats likely to be seriously regarded ' (This question
entails an examination of the source , deliberateness , and specificity of
the threats )
3 Were the threats widely disseminated'' •
195 NLRB at 1113-14 The first item pertains to what I call the "nature
of the violations" factor , the second and third items involve principally
the "pervasiveness" factor
10 Jamaica Towing , 632 F 2d at 213
i i Jamaica Towing, 632 F 2d at 213
The "pervasiveness" factor is a recognition that
even hallmark violations can vary in their impact
upon election results . Common sense and- experi-
ence dictate that the 8 (a)(3) discharge of a relative-
ly inactive union adherent in a unit of 500 employ-
ees is unlikely to have the same impact as the dis-
charge of the principal employee organizer in a 20-
person unit . A plant closure action is all-pervasive;
a single plant closing threat by a first -line supervi-
sor may not be.
In weighing the pervasive effect of a violation,
relevant considerations include the identity of the
perpetrator of the unfair labor practice , the size of
the unit, the' number of employees directly affected
by the violation , and the extent of dissemination
among the work force.
Because the critical question 'in all bargaining
order cases is whether a fair-election can be held, I
believe proof that the violations committed were
disseminated among employees is a particularly im-
portant aspect of the General Counsel 's case. Un-
fortunately , the Board presumes dissemination, a
practice former Chairman Miller justly criticized as
making "no sense ," as follows:'
I am unwilling to engage in the presumption,
of my colleagues , and put the Respondent to
the impossible burden of showing the absence
of dissemination . In evidentiary terms, it makes
no sense whatever to permit the only witness
who heard a threat to testify that the threat
was made but to remain silent on the question
whether , he disclosed the' threat to any other
employee . A chain of dissemination is a rela-
tively easy matter to establish through testimo-
ny, of employees who participated in the trans-
mission ., But nondissemination is virtually im-
possible to prove except by the denial of most
or all of the employees in the affected
group.12 .
While I ' agree in principle with former Chairman
Miller' that the General Counsel should prove dis-
semination, there , are cases in which the number of
violations , relative to the unit size , warrants a bar-
gaining order without proof of dissemination.
C. A Factor in Gissel Category 2 Cases: Mitigation
If hallmark violations of pervasive effect are
proven , and those violations are "outrageous"
within the meaning of the first Gissel category of
"exceptional" cases , a bargaining order should
issue . As the Second Circuit stated in a recent,
post-Jamaica Towing opinion, "Our decisions . . .
have always recognized, as, indeed , the Supreme
i2 General Stencils , 195 NLRB at 1114 (dissenting opinion)
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court's holding in . . . Gissel . . . compelled, that
extensive analysis of other factors is not required as
a condition of issuing a bargaining order in cases
falling within [Gissel's] first category . . . ." 13
In cases not falling within the first Gissel catego-
ry, however, postviolation developments that miti-
gate the need for a bargaining order may be con-
sidered. Three types of mitigating developments
have been specified: (1) changes in management;
(2) employee turnover; and (3) passage of time.14
In considering mitigating developments, the
Board should remember that a bargaining order is
an' extraordinary remedy and that an election is the
preferred method for determining whether employ-
ees desire representation. As the Jamaica Towing
court explained, "[T]here are cases where later rel-
evant events are not of the employer's making and
may, if ignored, result in unnecessarily thwarting
the genuine desires of the current work force. If a
new election would reliably reflect genuine, un-
coerced employee sentiment, it does not reward
the employer to hold one. Instead, it `effectuates
employee rights,' as-Gissel requires . . . .°> 1 s
On the other hand , the "mitigation " factor
should not reward employer misconduct. Turnover
that the employer causes cannot count as mitiga-
tion, and prolonged litigation should not automati-
cally yield an escape from bargaining.
In the bargaining order area, there is a tension
between fostering employee free choice and deter-
ring future violations. See generally, Note, "`After
All, Tomorrow Is Another Day': Should Subse-
quent Events Affect the Validity of Bargaining
Orders?" 31 Stan. L. Rev. 505 (1979). My solution,
admittedly imperfect, is to consider postviolation
mitigation in Gissel category 2 cases, but in doing
so, to bear in mind the two other factors already
discussed: the nature and the pervasiveness of the
violations.
Thus,- serious category 2 cases-those near the
category 1 line (where mitigation need not be con-
sidered)-will be relatively difficult to mitigate.
Category 2 cases that are factually close-those in
which a bargaining order is warranted on the
nature and pervasiveness factors, but only barely-
will be relatively easier to mitigate. In short, miti-
gation is a factor in category 2 cases, but only a
factor;_ the stronger the other factors favoring a
bargaining order, the heavier the employer's
burden of showing mitigation.16
13 Kaynard v MMIC. Inc, 734 F 2d 950, 954 (2d Cir 1984)
14 Jamaica Towing,- 632 F 2d at 214
1.5 632 F 2d at 214
16 Ordinarily, I would not consider evidence of mitigation beyond the
time of the unfair labor practice hearing See Bandag, Inc v NLRB, 583
F 2d 765, 772 (5th Cir 1978) The Board could entertain evidence of
posthearing developments in extraordinary cases , however, upon an em-
II. WHY A BARGAINING ORDER IS APPROPRIATE
IN THIS CASE
In the instant case, the Respondent committed at
least six hallmark violations. It threatened to "close
the doors" in the event of a strike and to discharge
employees by "building a case" against them. Ap-
proximately 2 weeks later, the Respondent dis-
charged Melvin Hughes, the principal union adher-
ent, in precisely the manner it said it would, i.e., by
"building a case" against` him. The Respondent also
discharged employee Nancy Helton when she re-
fused to participate in the Respondent's unlawful
scheme to prevent prounion employees from voting
in the election by promoting them to "supervisory"
positions. In addition, the unlawful 'plan affected
the employment status of two other employees
(Joyce Miller and Betty Smith) because the Re-
spondent coerced them into accepting "superviso-
ry" positions in order to deprive them of their stat-
utory rights.
Such highly coercive unfair labor practices were
likely to have had a profound impact on the em-
ployees for several reasons. First, all the violations
were committed by the Respondent's two highest
management officials: Jean Foust; the Respondent's
sole proprietor, and her daughter, Pat Schroer, the
facility's chief administrator. Second, the unit was
small, consisting of approximately 16 employees.
Third, the employment status of one-fourth of the
unit was directly affected by the Respondent's hall-
mark violations (the discharges of Hughes and
Helton, and the "promotions" of Miller and Smith),
and the threats to discharge employees and "close
the doors" were made at a meeting all employees
attended. Finally, the-record reveals that the em-
ployees frequently held meetings to discuss among
themselves the Repondent's actions. There can be
no doubt in this -case that the Respondent's hall-
mark violations -were brought to every unit em-
ployee's attention.
The Respondent's hallmark violations of perva-
sive effect place this case squarely within Gissel's
second category and support a bargaining order.
Turning to the mitigation factor, evidence of new
management and significant employee turnover is
lacking. The passage of time between the events of
this case and our decision is regrettable, but un-
avoidable, and does not by itself warrant withhold-
ing- a bargaining order. Accordingly, for the above
reasons, I join my colleagues in issuing a , bargain-
ing order. -
plo•er's motion to reopen the record See Sec 102 48(d)(1) of the
Board 's Rules and Regulations
REGENCY MANOR NURSING HOME 1265
APPENDIX
NOTICE- To- EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
I WILL NOT refuse to recognize and bargain col-
lectively - in good faith , on request , with United
Food and Commercial Workers International
Union , Local 1099, AFL-CIO-CLC (the Union) as
the exclusive bargaining representative of all em-
ployees in the following appropriate unit with re-
spect to rates of pay , hours, wages, and other terms
and conditions of employment:
All full-time and regular part -time employees
employed by us at our Independence, Ken-
tucky facility, excluding . all professional em-
ployees, guards, resident care coordinator, as-
sistant care coordinator , charge aide, head
cook, administrator and all other supervisors
as defined in the Act.
I WILL NOT discharge , refuse to hire or reem-
ploy, or otherwise discriminate against my employ-
ees because of their activities on behalf of, member-
ship in , or sympathies for the-Union or any other
labor organization.
I WILL NOT threaten my employees with dis-
charge or change of jobs for assisting or supporting
the Union or any other. labor organization ; threaten
employees that I will close my doors in the eveni
of a strike ; promise or grant benefits to employees
to induce them to refrain from supporting the
Union or any other labor organization ; create and,
by threats and coercion , assign supervisory fob
classifications to employees in order to undermine
union support among my employees or in order to
interfere with their right to vote in Board -conduct-
ed elections.
I WILL NOT coercively interrogate my employees
concerning their union or protected concerted ac-
tivities.
I WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of
their rights to self-organization ; to form, join, or
assist any labor organization, to bargain collective-
ly through representatives of their own choosing;
or to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid;
or to refrain from any and all such activities.
I WILL offer Melvin Hughes, Nancy Helton,
Joyce Miller ,- and Betty Smith immediate and full
reinstatement to their former jobs or , if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and I
WILL make them whole for any loss of earnings
and other benefits resulting from their discharges,
less any net interim earnings, plus interest.
I WILL recognize and, on request, bargain collec-
tively in good faith with the Union as the exclusive
representative of my employees in the above-ap-
propriate unit with respect to rates of pay, hours,
wages, and other terms and conditions of employ-
ment and, if an understanding is reached, embody
such understanding. in a signed agreement.
I WILL expunge from my files any references to
the discharges and failure to reemploy Melvin
Hughes and Nancy Helton, respectively, on 19 and
24 November 1982 and 31 May 1983 and notify
them, in writing, that this has been done-and that
evidence of this unlawful conduct shall not be used
as a basis for future personnel actions against either
of them.
JEAN - FOUST, SOLE PROPRIETOR,
DOING BUSINESS AS REGENCY MANOR
NURSING HOME
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
consolidated matter was tried before me on June 14
through 16, 1983, in Cinncinati, Ohio, on the General
Counsel's amended complaint dated January 26, 1983, as
further amended at the hearing, and Respondent's (Jean
Foust, Sole Proprietor, doing business a Regency Manor
Nursing Home) timely answer, as amended at the hear-
ing. The complaint, as amended, alleges violations of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, including the termination and failure to rehire
two named individuals (Melvin Hughes and Nancy
Helton) and various acts constituting independent viola-
tions of Section 8(a)(5) of the Act involving United Food
and Commercial Workers International Union, Local
1099, AFL-CIO-CLC (the Union) commencing about
September 13, 1982 Respondent admitted various allega-
tions of the complaint, denied others, and denied the
commission of any of the alleged unfair labor practices.
By virtue of ah order dated January 27, 1983, of the
Regional Director for Region 9 of the National Labor
Relations Board, I also took as part of this consolidated
matter evidence concerning challenges to the ballots of
six named persons (the alleged discriminatees, Hughes
and Helton and Joyce Miller, Cheryl Crank, Sharon
Strause, and Betty Smith). Lastly, included was a hear-
ing on both objections to the conduct of the election and
objections affecting the results of the election: the objec-
tions affecting the conduct of the election related to Re-
spondent's alleged failure to cover a window from which
the voters in the Board-conducted election on December
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7, 1982, could be seen, and the objections affecting the
results of the election related, principally, to matters al-
leged as unfair labor practices in the instant consolidated
unfair labor practice case.'
At the hearing, all parties were given full opportunity
to call and examine witnesses, to submit oral and written
evidence, and to argue orally on the record. After close
of the hearing, the General Counsel and Respondent sub-
mitted timely posthearing briefs which have been duly
considered. -
On the entire record, including the briefs, and from
my observations of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. RESPONDENT AS EMPLOYER _ -
The complaint alleges,` Respondent admits, and I find
that the Respondent, Jean Foust, Sole Proprietor, doing
business as Regency Manor Nursing Home, is a sole pro-
prietorship with an office and place of business in Inde-
pendence, Kentucky, where it has been engaged as a
health care institution in the operation of a nursing and
convalescent facility. During the 12 months prior to the
issuance of the complaint, a representative period of is
operations, Respondent in the course and conduct of its
operations derived gross revenues in excess of $100,000
and purchased and received at its Independence, Ken-
tucky facility products, goods, and materials valued in
excess of $10,000 directly from points located outside the
State of Kentucky. Respondent concedes, and I find, that
at all material times it has been, and is, an employer en-
gaged in commerce within the meaning of Section _2(2),
(6), and (7) of the Act and a health care ' institution
within the meaning of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that the Charging
Party, United Food and Commercial Workers Interna-
tional Union, Local 1099, AFL-CIO-CLC (the Union) is
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The. complaint alleges and Respondent admits that at
all material times Jean Foust, Respondent' s; sole proprie-
tor, and her daughter,'Pat Schroer, the administrator of
Regency Manor, have been and are supervisors of Re-
spondent within the meaning of Section 2(11) of the Act
and agents thereof within the meaning of Sectioii 2(13)
of the Act.
Respondent also admits that the following unit of its
employees is appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) ' of the
Act: -
` The underlying charge was filed by the Union 'on December 9, 1982,
and served on Respondent on December -10, 1982
All full-time and regular part-time employees em-
ployed by Respondent at its Indpendence, Ken-
tucky facility, excluding all' professional employees,
guards, resident care coordinator, assistant resident
care coordinator, charge aide, head cook, adminis-
trator, and all other supervisors as defined in the
Act.
About April 1982, Respondent purchased as a going
business the Regency Manor facility, at the same time
hiring all the employees of the predecessor. The chief su-
pervisor in charge of all facility functions, both profes-
sional and administrative, was a registered nurse, Rose-
mary Connor. Jean Foust, at all material times, was and
is employed in a supervisory capacity with another em-
ployer in Cincinnati, Ohio, and regularly spends little, if
any, time at the Regency Manor in any capacity. Com-
mencing in April 1982 with the purchase of the facility,
Foust installed' as the chief administrator of the facility
her daughter, Pat Schroer, a former school teacher ad-
mittedly inexperienced in business affairs generally and in
running a health facility specifically. In the months April
through June, all of the supervisory functions were exe-
cuted by Rosemary Connor, notwithstanding that Pat
Schroer took the title of administrator and was the titu-
lar head of operations.
The operation itself consists of a health care facility
with some 45 to 47 elderly residents who require bath-
ing, administration of drugs, dressing, feeding, and simi-
lar nursing ' and custodial functions. These functions are
performed 24 hours per day, 7 days per week, including
the provision of meals and laundry, by nurses aides,
cooks, and a maintenance staff. There is no dispute that
at all materials times there were no more than 16 persons
employed at the facility, excluding Patricia Schroer. The
nurses aides worked on three overlapping shifts. the first
shift from about 6.30 a.m. to 2:30 p.m., the second shift
from 2:15 until 10:30 p.m., and the third from 10:15 p.m.
to 6:45 a.m.
In the period commencing with the April 1982 pur-
chase through September 1982, there was no hierarchical
organization of a formal nature in Respondent's facility.
Rather, Rosemary Connor ran the entire operation.
Commencing about June 1982, Pat Schroer advised
Connor that she (Schroer) wanted to have Rosemary
Connor devote her time to the health care side of the op-
eration and the direction of the nurses aides and to have
Schroer take over as chief supervisor of the other func-
tions: bookkeeping, maintenance , laundry, cooking and
kitchen activities, purchase of supplies, etc. Rosemary
Connor allegedly did not accept this change and, by the
end of August, she gave notice of her intention to quit.
She did -so at the beginning of September 1982.'
B. The Union's Organizational Drive
About late August 'or early September 1982,• Pat
Schroer cut the hours of nurses aide Debbie Pelfry, not-
withstanding that other nurses aides had less seniority
than Pelfry. As a result of this action, the nurses aides
became -concerned with their terms and conditions of
employment and spoke to Melvin Hughes, Respondent's
REGENCY MANOR NURSING HOME 1267
maintenance man at the Regency Manor facility, con-
cerning their common work problems. Hughes, em-
ployed continuously by Respondent's predecessor'-and by
Respondent since November 1981, telephoned the Union
about September 5 or 6 1982, received and then distribut-
ed union membership application cards to the employees,
and thereafter conducted about 10 union meetings at his
home near the Regency Manor facility Groups of 5 to
12 employees attended these meetings . Hughes distribut-
ed cards to six named employees '(Crank, Hamilton, Pel-
frey, Strause, Smith, and Miller) and returned their
signed cars (all signed in the period September 7 through
September 9, 1982) to Union Representative Wyatt. In
all, the Union was in possession of 13 signed membership
application cards from a total of not more than 16 unit
employees when, on'September 1.3, 1982, it sent a letter
to Respondent (G C. Exh. 3(a)) claiming to represent a
majority of ;Respondent's employees,- mentioning a bar-
gaining unit of nurses aides, cooks, and maintenance em -.
ployees, and -requesting Respondent's bargaining with the
Union as the employees' collective-bargaining representa-
tive.2 The evidence shows that the Union's letter was re-
ceived, by Respondent on September 14. On September
23, 1982, Respondent acknowledged receipt of the
Union's September 13 letter and noted that it was not in
agreement with the claims made by the Union, suggest-
ing that the Union contact the National Labor Relations
Board ("if you wish to pursue this matter"). The record
also shows that at.some time in this period, Respondent
contacted a labor relations consultant, Tom Forshee, and
the law firm which appeared in this proceeding repre-
senting Respondent. -
Meanwhile, on September 22, 1982, the Union filed a
petition for certification in Case 9-RC-14151 in 'the
above-stipulated unit; and on October 25, 1982, executed
with Respondent a Stipulation • for Certification Upon
Consent -Election wherein a December -7, 1982 election
was agreed to. The election was held on December 7;
the Union losing 4 to 6, with 10 votes cast and 6 chal-
lenged ballots. The Union filed timely objections both to
the conduct and the results of the election, most of the
latter of which appear herein as unfair labor practices.
2 The parties stipulated, inter alia, to the existence at the time of the
Union's September 13 request for recognition of 13 unit employees (in-
eluding Cheryl Crank) for purposes of determining majority status based
on 'signed union membership application cards There is no dispute that
on and between September 7 and 9, 10 unit employees' signed union cards
authorizing the Union to represent the signer "for the purpose of collec-
tive bargaining': See G C Exhs 5 and 6(a) et seq Three additional card
signers, persons employed by Respondent (Betty Smith, Sharon Strause,
and Joyce Miller), are alleged by Respondent to be statutory supervisors
at all material times Miller signed on September 9, Strause on September
8, and Smith on September 8 In addition, Cheryl Crank, a card signer
(G C Exh 6(c)) on September 8, was stipulated to have become a super-
visor after the Union's September 13 request for recognition to have her
card counted for recognition purposes but to have her ballot in the elec-
tion, infra, neither opened nor counted
C Alleged Violations of Section 8(a)(1) in the
September 30 and October 4 Interviews with
Employees
On September 22, the Union filed the election petition.
On September 23, Respondent rejected the Union's Sep-
-tember 13 request for recognition.
It is not disputed that on September 30, 1982, Pat
Schroer called employees into her office individually, or
in small groups and spoke to them concerning the Union.
1. Melvin Hughes: Hughes testified that when Pat
Schroer called him alone into her office on September
30, she said she wanted to talk to him about the Union.
He testified, and Pat Schroer conceded, that he immedi-
ately told her that he was for the Union and had been to
every union meeting . Schroer told him that the Union
was a "give and take thing" and that in order to gain a
benefit the employees would have to give up benefits and
that there would be fines, assessments , and dues if the
Union got in. He said that when she also told him that
there would be a "strike clause" in the contract that the
Union might negotiate, he said that the employees would
have to vote before the Union could strike. He said that
Pat Schroer told him that she appreciated his honesty
and they discussed the benefits or lack of benefits which
accrued to Pat Schroer when she belonged to the Teach-
ers Union. Pat Schroer also asked "how the Union got
started." Schroer denied this and testified that she said
only that she was disappointed because the employees
went to a third party to settle their problems and did not
come to her. I conclude that regardless of the words ac-
tually used by' Pat Schroer, whether she actually asked
the question or made a statement, the language used nev-
ertheless invited a response from Hughes (and' from
other employees) 3 In response to Schroer's inquiry or
statement concerning how the Union got started in the
first place, Hughes answered that it came about "[w]hen
you cut back Debbie Pelfrey's hours out of seniority."
He told Schroer that the girls talked to him and he told
them he would call for a union. I also credit Hughes'
recollection that Pat 'Schroer asked how a union could
help them and that he told her that a union could pro-
vide jobs and security and that there would be no firing
of employees over a question -like "how they combed
their hair." I find that Schroer answered that she would
not do anything like that in, any event and merely
wanted to talk to him to get to the bottom of how the
whole "union mess" got started and that she appreciated
his truthfulness. He also recalled Pat Schroer saying that
the Regency Manor (mortgage) would be paid off in 10
years; that she was doing as much as she could do for
the employees; but that when the financial obligation of
paying off the building was completed, Respondent
would do more ,for the employees.
At the hearing, it was evident that Pat Schroer desired
to limit the extent of her prior questioning of Melvin
3 Pat Schroer testified that she could not have overstepped lawful in-
quiry into the area of unlawful interrogation, threats, or promises because
Labor Relations Consultant Tom Forshee had given her a little slip of
paper advising of what she could do and what she could not do The slip
of paper was not produced at the hearing I am not persuaded that Pat
Schroer's conversation remained within lawful bounds
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hughes. Although Hughes was certainly not-as articulate
as Pat Schroer , and notwithstanding that Pat Schroer ap-
peared to me to be an intelligent witness, I nevertheless
conclude that , as above noted , regardless of her denials
and explanations , she was inviting Hughes to state not
only his position with regard to 'the Union but to answer
other questions concerning union activity among' em
ployees . I therefore conclude that sequestering him in
her office , the office of the chief supervisor , and ques-
tioning him-concerning how the union "mess" got start-
ed and what help the Union would be constitutes unlaw-
ful coercive interrogation in violation of Section 8(a)(1)
of the Act. THE Co., 261 NLRB 204, 208 ' ( 1982) In-
addition , Pat Schroer did not fully deny, if at all, the
credited testimony of Hughes in that she said that after
the building mortgage had been paid off, Respondent
could do more for the employees . I regard ' this to be 'an
unlawful promise of benefits to employees coming after
the Union filed its election petition uttered in a context
of open antagonism to the Union , NLRB, v. Exchange
Parts Co., 375 U. S. 405, 409 (1964), which promise un-
lawfully impinges on their freedom of choice in violation
of Section _ 8(a)(1). Lastly, 'Schroer 's statement demon-
strated thai with a• union , the employees would inevita-
bly lose benefits even if they gained others Such a pre-
diction is unlawful
Respondent argues (Br 12 et seq.) that Hughes was in-
credible because he was unsure of and confused about
dates and also confused about certain other threats by
Proprietor Foust herself. I find Hughes to be credible:
As to the confusion , if any, the Board and courts have,
long held that confusion on dates, days, and, even, se-.
quences of events does not necessarily detract from
credibility . Plumbers Local . 195 (Stone &, Webster), 240
NLRB 504 , 514 (1979), enfd . 606 F2d..320, (5th Cir.
1979). As to allegedly confusing what Foust separately;
threatened , it is not Melvin Hughes who . is confused or,
inconsistent, but Respondent. Contrary to Respondent,-
Hughes did testify , and I credit him , that Foust, at a par-
ticular meeting , threatened to "build a case" to get rid of,
union sympathizers ; he merely_ said she-did not," add
"That 's, what I 'm- going to do - here " In sum , Melvin
Hughes' testimony was credible ; Patricia Schroer 's deni-
als were not. On her demeanor , on mutual corroboration
of the . General Counsel's witnesses ,. on their demeanor,
and Schroer 's palpable union animus discussed hereafter,
I would not credit her . On the :basis of these findings, of
violation of Section 8(a)(1) on September 30, 1982, in_
terms of unlawful promises of benefit , threat of inevitable
loss of benefits ,. and unlawful , coercive interrogation, and
these unlawful acts, having also been alleged as.oblection-:
able conduct occurring between the. time of the filing of,
the Union 's petition for certification, (September 22,-
1982) and the election on December 7, 1982, I recom:
mend to .the-Board that the - election be set aside. Thus, I•:
find that these actions by Respondent are not , only objec-i
tionable conduct interfering with the conduct - of,the elec-
tion , but, a fortiori , objectionable because they constitute
unfair labor practices See Ideal -Electric Co., 134 NLRB
1275, 1278 ( 1962), and Dal- Tex Optical C6, 137 NLRB
1782, 1786 ( 1962). . ,
2 Cheryl Lynn Hamilton: Currently employed by Re-
spondent as- a cleaning lady but formerly employed as a
nurses aide, Hamilton -testified that, at the end, of Septem-
ber 1982, she was called into Schroer's office along with
Sharon Strause Strause, though called as a witness by
the General Counsel, did not testify with regard to this
conversation with Hamilton and Pat Schroer Hamilton
testified that she recalled Pat Schroer saying that "we
should be careful about a union", that a union could help
them or hurt them, and they should "watch out" for as-
sessments and the payment of dues, that they should get
everything in_writing from the Union, that it was costing
Respondent a great deal of money to fight the Union;
and. that "there would be no union at Regency Manor."
She, like•,Melvin. Hughes, also recalled Schroer saying
that Respondent would pay for Regency Manor in 10
years and it would "get better for the employees" there-
after. Lastly, she recalled Schroer saying that if a union
got in, Respondent would abide by the union contract,
but that'having a union was a give-and-take situation for
the employees and if the employees got something they
would lose something.
Although Hamilton's testimony was consistent in part
with the testimony of Pat Schroer, there was no question
that Hamilton's testimony substantially corroborated
Melvin Hughes' testimony _ concerning Schroer's state-
ments to employees- in her office in that there was a
promise of benefits down the road after Respondent paid
off 'the cost of obtaining Regency Manor,'which is an
unlawful promise of benefit' within the" meaning 6f-Sec-
tion 8(a)(1), notwithstanding that it was not a promise of
an immediate benefit, and her statement that the employ-
ees would necessarily lose something if the, Employer
gave a bargaining benefit, also is an unlawful statement
of inevitable detriment, violating Section 8(a)(1), which
is not supported by any contract demand or otherwise. I
find that such statements violate Section 8(a)(1) of the
Act because there is no statutory or even 'bargaining ne-
cessity for the employees to give up a benefit in order to
obtain one in collective bargaining. Schroer's, absolute
statements that it was costing Respondent "money to
fight the Union" and that there "would be no union" at
Regency Manor indicate the "futility" of the, employees
seeking their right to, statutory representation It was a
statement of dedication that there would be no' union at
Respondent's facility. Such a statement violates Section
8(a)(1) and demonstrates unremitting animus.
3. Mary Hughes: On September 30, Pat Schroer ap-
proached Mary.Hughes, one of Respondent's cooks, wife
of Melvin, Hughes, in Respondent's kitchen about 2:15
p m. Schroer acknowledged that she came there to talk
of the Union and, according to Mary Hughes, said that
she '.found out',' the employees were organizing a union.
When Schroer asked her if she ever belonged to: one,
Mary 'Hughes answered , that she did. I credit Mary
Hughes' testimony. Given Schroer's accompanying
animus, and the lack of assurance against . retaliation, I
conclude that Schroer, in violation of Section 8(a)(1),
4 This unfair labor practice, also alleged as objectionable conduct,
would be sufficient to set aside the, election See Melvin Hughes. above
REGENCY MANOR NURSING HOME 1269
was coercively interrogating Mary Hughes on September
30. I also credit Mary Hughes' testimony that Schroer
told her, as she told Cheryl Hamilton, both employees
then currently employed by Respondent at the time of
giving testimony, see Georgia Rug.Mill, 131 NLRB 1304,
1305 fn 1 (1961), that Schroer said that she did not want
a union in Respondent, i.e., she did not want a "third
party" interfering in her business. I also credit Mary
Hughes' testimony that Pat Schroer said that her mother,
Jean Foust, would have the establishment paid for in 10
years and after that Foust would "do something" for the
employees. I regard this as an unlawful promise of bene-
fits in violation of Section 8(a)(1). I also credit Mary
Hughes' testimony that Schroer told her, in specific
terms, in violation of Section 8(a)(1) that the employees
would have to give up some benefits that they then en-
joyed, including paid holidays, in-order to get a further
benefit in collective bargaining. I also credit Mary
Hughes' testimony that Schroer unlawfully asked her on
September 30 whether she had ever attended a union
meeting and then expressed disbelief when Mary Hughes
denied attending a union meeting
4 Linda Jo Etler. Linda Jo Etler and Nancy Helton
were nurses aides on the third shift at Regency Manor
on October 4, 1982. About 6:45 a.m. before they left the
premises after completing their night shift, Pat Schroer
called them into her office and told them that she
wanted to talk to them about a Union. She first asked
them if they were familiar with union organizations and
told them that a union would do them more harm than-
good. She said that Respondent had hired Forshee, a
labor consultant; that they should beware of unions and
have the Union put things in writing ; that the Union
might get them a contract that they did not want and the
Union would make decisions for them, that Respondent
could handle problems with employees without the inter-
vention of a third party, and that a union-security clause-
might be. in the contract and, if so, Respondent would
take away a benefit that they already had in order to
gain the benefit of a union-security clause. When Schroer
told them that she assumed that Linda Townsend was
the charge aide on the third shift, they answered that
Linda Townsend was not a charge aide on the third
shift; that there was no charge' aide on, the third shift;
and that the three employees on the shift (Townsend,
Etler, and Helton) all did the same work of sweeping,
dusting, mopping, and checking-on the patients 5 On the'
basis of the credited testimony of Etler, an employee
currently employed at the time of her giving testimony,
as Mary Hughes and Hamilton, above, I conclude that
Respondent unlawfully threatened to take away benefits
already given to employees. Such a statement violates
Section 8(a)(1), though couched in the framework of the
give-and-take bargaining situation These repeated viola-
tions, again, coming after the filing of the Union's elec-
tion petition and before the election, require that the
election be set aside.
5 As a matter of scheduling, on a weekly basis, there were always two
employees on the third shift, except three on Friday night, in caring for
the 45 to 47 elderly people
D. The November 2, 1982 Meeting Between
Respondent and its Employees
The 'Union's petition for certification in the above-cap-
tioned case (9-RC-14151) was filed on September 22,
1982; and Respondent and the Union, at the Board's Re-
gional Office, on October 25, 1982, entered into a Stipu-
lation for Certification Upon Consent Election whereby
the election was to be held by secret ballot on December
7, 1982, in Respondent's conference room at,Regency
Manor.
About October 19, 1982, 1 week before executing the
above stipulation, Respondent distributed a memorandum
to all employees (G.C. Exh. 12) whereby it announced
appointments to supervisory positions effective that day.
The following persons were named to the following po-
sitions. Sharon Strause was named resident care coordi-
nator; Cheryl Crank was named assistant resident care
coordinator; Joyce Miller was named' charge aide
(second shift); Linda Townsend was named charge aide
(third shift); and Betty Smith was named head cook. The
memorandum noted that "these people have new and ex-
panded duties and responsibilities and I [Pat Schroer]
will be looking to them for help in the management of
the Home."
Pursuant to the prior notice posted on the company
bulletin board, Respondent held a meeting with all of its
employees in its conference room about 2:15 p.m. on No-
vember 2, 1982. Present were all employees and Pat
Schroer and her mother, Respondent's sole proprietor,
Jean Foust. Pat Schroer announced that Respondent still
needed two supervisors because of a State of Kentucky
requirement that there be a supervisor assigned to each
shift (i.e.,' each charge aide be a supervisor) and that the
head cook be a supervisor. In substance, she told the em-
ployees that there was no charge aide supervisor on the
third shift (Linda Townsend was indecisive in accepting
the charge aide designation) and that the position of su-
pervisory head cook had not been filled Pat Schroer
told the employees that if no one took those jobs, she
would have to go out "to the street" to hire someone
even if it meant laying off one or more of the employees
who refused to take those supervisory positions.
Melvin Hughes, Mary Hughes, and Cheryl Hamilton
credibly testified with regard to what, in addition, Jean
Foust said at the November 2, 1982 meeting
They recalled that after Pat Schroer went through the
new chain of command at Regency Manor, she gave the
meeting over to Jean Foust, who said it was a "shame"
to have a "third party" consulted to resolve Respond-
ent's problems with its employees and she wanted to
know about this "business of the Union." Foust said that
Pat Schroer had made a mistake (in reducing Debbie
Pelfrey's hours out of seniority) and asked the employees
if Respondent was not allowed to make a mistake. She
told the employees that Debbie Pelfrey's reduction in
hours had been rectified before the advent of the Union,
but Melvin Hughes, contradicting her, said that the recti-
fication occurred only after the advent of the Union.
When Foust said that she was disappointed and could
not understand why the employees sought out the Union
to help with their problems, Melvin Hughes, whose wife
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Hughes is. a cook , said that Respondent ' s nurses
aides should not be allowed , into the kitchen to mess it
up, especially when the State of Kentucky said that only
cooks could gain entrance into the kitchen Foust, after
replying that it was her kitchen and nobody could keep
her out, then turned to Melvin Hughes, told him that he
was outspoken , 'and asked him who made him "spokes-
man for the girls." Hughes told her that no one made his
spokesman but that the nurses aides had become dissatis-
fied and had 'come to him 'to seek out help and to get a
union.
Hamilton recalled that when Foust asked why the em-
ployees had started a union and learned it was due to the
reduction of Debbie Pelfrey's hours out, of seniority,
Hamilton added that if Schroer'and Foust could do this
to Debbie Pelfrey without regard to seniority, then they
could do it to any one of the nurses aides even if the
cause of the change was that Respondent did not like the
way a nurses aide walked or combed her' hair . Foust re-
plied that she could fire any one of them with or without
a union and added that where she worked , if manage-
ment did not like an"employee, it could "build a' case"
against the employees 'even if it was because it did not
like the way the employee walked or dressed Foust also
said that if there was a strike, Respondent could either
close the doors of Regency Manor or- run it by hiring
her relatives . She also said that if there was negotiation
of a contract, the employees would have to go back to
"minimum wage" and start from "ground zero."
The above findings of fact are based on the credited
testimony of Melvin Hughes, Mary' Hughes, and Cheryl
Hamilton To the extent that Pat Schroer and Jean Foust
testified to the contrary, they are not credited. While I
viewed Mary Hughes as having a - particular 'interest in
testifying in support of the testimony of her husband;
Melvin Hughes, I note that Cheryl Lynn Hamilton is -an
employee currently employed-at Regency Manor who
was 'testifying directly in the presence of Pat Schroer
and-against Respondent 's interest As a whole, I was im-
pressed with'the mutually corroborative testimony of the
two Hugheses' and Cheryl Hamilton, including the
normal variations in recollections , and credit -them and
discredit Respondent's 'witnesses' contrary testimony.
Only Foust and Schroer testified on these points as wit-
nesses for Respondent.
Indeed, Foust testified that at the November 2 meet-
ing, her daughter, Pat Schroer, did-all of the speaking'(I
do not credit this testimony); that' Cheryl Hamilton told
the employees that since they signed union -cards, she be-
lieved that they would have to go through with support
of the Union; and that, if they did not, .Respondent
would "let us go" and they would not be able to work
there I do not credit such testimony In response; Foust
testified that she said that if they did their job, there
would be no problems and, if not, they would be let go
I .find that any such latter statement -made' by Foust is
not inconsistent with other testimony-which I have cred-
ited from the two Hugheses and Cheryl Lynn Hamilton.
Foust also testified that she suspected that Melvin
B The record is corrected to show that it was "Foust" rather than
"Strause" who is the speaker
Hughes was involved with the Union and that it made
no difference to her one way or the other whether the
Union came in. I. credit neither the former nor the latter
statement . Her daughter knew that Melvin Hughes de-
clared himself for the Union on September 30. Foust did
not merely suspect Hughes' involvement . She admitted
asking Melvin Hughes at the meeting who made him
spokesman . for the girls and asked him-why the nurses
aides- went to him for advice. Jean Foust's other testimo-
ny was marked by considerable lack of recollection of
events '
Pat Schroer recalled , with regard to the November 2
meeting, only that her mother told the employees that
there was an open-door policy at Respondent's nursing
home ' and that the employees should have gone to Pat
Schroer rather - than -tthe Union if they had any prob-
lems. Schroer testified-that this "open -door policy" exist-
ed ever since mid-September 1982, but she admitted she
had never told the employees of its existence . Rather,
her actions after the September departure of Chief Super-
visor Rosemary Connor were somehow supposed to
demonstrate a new "open-door policy ." I do not credit
the existence of the unannounced "open -door policy": it
was merely a late announcement - of a new device to ame-
liorate employee discontent because of the advent of the
Union. -
As above noted , I credit the General Counsel's wit-
nesses as to the events of November 2. I therefore con-
clude that Respondent , in a prior and present context of
animus by asking the employees how the Union got
started and telling them that it was disappointed and
could not understand how the Union got started, was in-
terrogating the employees concerning the-basis of their
seeking out. and joining the Union I conclude that, as al-
leged , this is coercive interrogation in violation of Sec-
tion 8(a)(1) of the Act. I further conclude that Foust
threatened to discharge, and reserved the right to dis-
charge, anyone by "building a case" against him if she
wished to get rid of him on a pretext I conclude that, as
alleged , this is a threat of discharge in violation of Sec-
tion 8(a)(1) of the Act I further conclude that, in viola-
tion of Section 8(a)(1) of the Act, Foust threatened the
loss of benefits in that any contract negotiated with the
Union would cause the employees to return to pay rates
of the minimum wage and to negotiate from "ground
zero," Belcher Towing Co., 265 NLRB 1258 (1982), and
that Foust also said that she would run Regency Manor
any way she wanted to because it was her business even
if it meant firing every one of the employees . This later
statement was also an unlawful threat of discharge be-
cause of the advent of the Union Similarly , there was an
unlawful threat of "closing the doors " in the event of a
strike even though it was attached to the continuation of
business by the hiring of relatives . At this point in time,
there was no recognized labor organization representing
the employees , there was no bargaining negotiation
threat of a strike, and there was no reason to threaten to
close - Respondent 's doors. This violated Section 8(a)(1)
of the Act.
These violations of Section 8(a)(1) of the Act, also
constituting the timely filed objections affecting the con-
REGENCY MANOR NURSING HOME 1271
duct of the election, lead me to' further recommend to
the Board that the election of December 7, 1982,-be set
aside.
E The Discharge of Melvin Hughes on November 19,
1982
Mary Hughes testified that immediately after the No-
vember 2, 1982 meeting of all the employees with Jean
Foust and Pat Schroer, she asked to speak with Foust
and Schroer privately They went into the office and it is
not disputed that Hughes spoke of Cheryl Crank giving
Mary Hughes a "hard time" over work and calling her
bad names, trying to get her fired because of the Union.
Foust said that this matter should have been brought to
Pat Schroer's attention because of the open-door policy
but Mary Hughes told Foust that Pat Schroer and she
were not on speaking terms. Foust denied that the Union
was discussed. -I do not credit the denial. Mary Hughes
further credibly testified that she told Foust she had
signed a union card and Foust said she could not under-
stand how the Union got started, and again stated that
Respondent did not need a third party interfering with
their problems. Foust also asked Mary Hughes why
Melvin Hughes was involved with the Union and, after a
discussion of Debbie Pelfrey having lost hours out of se-
niority, Mary Hughes further testified (and Foust denied)
that Foust told her that Melvin Hughes' "outspokenness"
could get him fired. I credit Mary Hughes. As I ob-
served her, Mary Hughes was an honest, careful witness.
Respondent's cross-examination further demonstrates
both those qualifications. Foust's threat to fire Melvin
Hughes for his "outspokeness" relates to his speaking out
regarding union activities and violates Section 8(a)(1) of
the Act.
Melvin Hughes was employed by Respondent's prede-
cessor and became one of Respondent's employees upon
Respondent's April 1982 succession. From April 1982
until about September 1982, Hughes, employed 3 days
per week, 4 hours per day (Monday, Wednesday, and
Friday), 8 a.m. to noon , worked as a "light maintenance
man." It was his custom and function to fix and maintain
malfunctioning toilets, doors that closed poorly, light
switches , sweep the floors, and similar items . He became
aware of his everyday maintenance chores by nurses
aides or other employees posting slips on the bulletin
board or giving . him slips noting that things needed
repair
Jim Schroer, husband of Pat Schroer, a carpenter by
trade, was laid off from his carpentry job around mid=
June and commenced performing services without
charge at Regency Manor commencing mid-June 1982
until December 1982. He spent 30 to 35 hours'per.week
at Regency Manor commencing June 1982. In July 1982,
he painted the exterior of Regency Manor and later per-
formed inside maintenance work. He'testified that he ob-
served Hughes 'while at work and determined that
Hughes did not perform his work, which was almost en-
tirely inside work, in an efficient or quick manner. Alleg-
edly by the second week in August, after Pat Schroer
asked him, to guide Melvin Hughes into a better working
routine and especially to have Hughes engaged in pre-
ventive maintenance, he spoke with Hughes and told him
that he was going to set up a daily, weekly , and quarter-
ly maintenance schedule. He testified , in addition , that he
executed ' thre'e schedules for Hughes , the first allegedly
in late August , and told him to fill in the time it took
Hughes to perform the maintenance work . Hughes, ac-
cording to Schroer 's uncontradicted testimony , executed
only one of the three schedules. Jim Schroer said that
Hughes' work never improved and, commencing as early
as the beginnng of August, he allegedly told Pat Schroer
and her mother to get rid of him because Hughes ap
peared to him to be lazy. Indeed, Schroer testified that
as early as his first observation of Hughes in June, he
found Hughes to be an inadequate employee who did not
get enough things 'done. In particular, Schroer testified
that in the period from July to November he told his
wife, Pat Schroer, to fire Melvin Hughes a dozen times
and in the same period told Jean Foust three times to fire
him. For instance, although he did perform the addition-
al functions required on the work schedule such as
sweeping the inside steps and getting rid of the salt in
the main entrance put there during the winter time, he
did not perform additional functions. which were men-
tioned on the work schedules. Only one of the work
schedules was produced at the hearing (R. Exh. 1), but
that was given to Hughes on November 9.7 Although
Jim Schroer testified that, commencing in August, he
told Hughes on several occasions that he thought
Hughes should be doing more than he did, that he again
told him this at the end of August when he presented
him with the first work schedule, and that he thereafter
told' him again in the second week of September, al-
though he allegedly repeatedly recommended to his wife
and Foust firing Hughes commencing in July, he admit-
tedly never did warn Hughes that his failure to improve
his work would lead to any discipline, much less-dis-
charge. Nor did any other person warn Hughes before
the coming of the Union. In particular, he noted that all
through this period, Melvin Hughes failed to properly
clean the grease trap* which had to be cleaned twice a
week . In addition , it took Hughes too long to clean the
grease trap. It also took, too long for Hughes to perform
his sweeping function and .he noticed that Hughes was
always drinking coffee and.talking too much.
Jim Schroer further testified that in mid-November,
-Pat Schroer told Hughes that he was not working up to
par and that Hughes only answered that he was doing
the best he could and did not think that the list or sched-
ule was a good idea In response to this, Pat Schroer said
that they, were going to go by the list to see that the
work got done. Pat Schroer recalled particularly that al-
though her husband came to work at Regency Manor in
June 1982, he was allegedly first introduced as Hughes'
The record is unclear whether Respondent or Hughes had the al-
leged August lists Respondent never sought to subpoena the lists if they
were in Hughes' possession to prove otherwise Jim Schroer 's recollec-
tion and testimony on the point were unclear and unsatisfactory I do not
credit Schroer's testimony and I find that none of the lists was' given to
Hughes before September 30 1 make this finding especially because Jim
Schroer testified that he gave all three of the schedules to his wife at the
end of August for delivery to Hughes and yet Respondent ' s own evi-
dence (R Exh 1) shows that Jim Schroer himself gave Hughes the
schedule on November 8 -
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"supervisor" in the third week of August 1982, and re-
mained Hughes' supervisor until Hughes was fired on
November 19. Jim Schroer testified that he knew that
Hughes would be discharged before the Board election
of December 7 and that after the union organizing cam-
paign, perhaps. in October 1982, Hughe_s', working hours
were changed from 8 a.m. to noon to '9 a.m. to 1 p.m.
This was done because Jim Schroer did not arrive at the
job until 9 a.m. and allegedly wanted to keep a particular
eye on Hughes' work.
In addition to (a) not producing or seeking the work
schedules allegedly given to Hughes in August and Sep-
tember, which might show which functions Melvin
Hughes failed, to perform in addition to the additional
functions he actually did perform pursuant to the ' sched-
ules, Respondent (b) did not produce its timecards to
show when, in particular, Melvin Hughes' hours were
changed from 8 a in to noon to 9 a.m. to 1 p.m. so that
Jim Schroer could "keep an eye on him."
Hughes, contradicting Jim and Pat Schroer, testified
that it was 2 weeks' after his September 30, 1982 interro-
gation in Pat Schroer's office that he received work
schedules and his hours were changed; and that his job
(principally to repair lights, toilet leaks, clean the ,grease
trap, and put groceries away) was increased to pull
weeds and sweep the steps, functions which Schroer ad-
mitted that Melvin Hughes performed, not in August but
after September 30. Hughes testified • that only after he
received work schedules and his hours were changed,
not in August, but in October, did Pat Schroer follow
him around, telling him that she wanted to see what he
was doing and time his work. I credit Hughes and credit
neither Jim nor Pat Schroer. These, changes occurred
after, not before,'the'coming of the Union
On November 19, 1982, a Friday,8 about 11 a.m., Pat
Schroer called Hughes from the basement, where he was
working, into her office. She told him that she was sorry
that they had to let him go because of an "economy
move." She told him that her husband, Jim Schroer,
would do the work for nothing. When she made out-his
check, he asked her what the' real reason for the dis-
charge was and she told him it was his lack of speed and
the lack of quality of his work When he told her that
that was not-the real reason and asked her what the real
reason was, he said that Pat Schroer just laughed. Pat
Schroer then told him that she did not want him on the'
premises anymore.9 -
Jim Schroer testified that, although he had previously
recommended the discharge of Melvin Hughes on a
dozen' or more occasions, in November, when Pat
Schroer and Foust told him that they were discharging
Hughes, there had been no further recommendation for
his discharge by Jim Schroer. Thus, the decision to dis-
charge Hughes did not come on a late recommendation
from Jim Schroer but rather was the decision of Foust
and her daughter.
Pat Schroer testified that she discharged Hughes be-
cause of poor work and slowness and, because her hus-
Payday is each Tuesday of the succeeding week
On November 19, Hughes returned a November 8 work list to Pat
Schroer noting that it had been fully executed (R Exh 4)
band was unemployed and would do the work for noth-
ing. She also testified that she knew that Hughes was a
union sympathizer at least as early as the September 30
meeting in her office with him and that any doubt re-
garding his union sympathies was resolved when she saw
him walking with Union International Representative
David Day on the street in Independence, Kentucky,
after that time Pat Schroer also testified that, despite her
husband's repeated recommendations to fire Hughes
commencing in. July, she first discovered how bad
Melvin Hughes' work was after Labor Day in 1982 10
Discussion and Conclusions
If the record as a whole is considered, it is unneces-
sary to give dispositive weight to Foust's November 2
unlawful threat to Mary Hughes that Melvin Hughes'
"outspokeness" could get him fired. The evidence con-
sidered as a whole shows that Melvin Hughes may not
have been an ideal employee. Rather, there is some pos-
sibility that he did not work as fast as Respondent would
ideally have him work especially after. his being unlaw-
fully interrogated on September 30 when Pat Schroer,
knowing of his union advocacy, started to follow him
around to see what he was doing. There is no question,
however, that Respondent knew of the quantity and
quality of his work in the period April through Septem-
ber and that Hughes' performance caused no issue what-
soever. In the period July through September 1982,
Schroer said that he told his wife to fire Hughes perhaps
a dozen times without results. Since I do not credit the
Schroers' testimony of changing Hughes' hours and job
in August, there is also no question that any supervisor
or other person ever implicitly or explicitly warned
Melvin Hughes regarding the quality or quantity of his
work, certainly not before the advent of his union activi-
ties . Even if Jim Schroer spoke to Hughes in August, I
do not regard Schroer's testimony to the effect that he
told Melvin Hughes that he could do more work as a
warning or a condition imposed upon Hughes in the
event that the quality and quantity of his work did not
improve. As above noted, Respondent failed to produce
its timecards and early work schedules to show and sup-
port Hughes' deficiencies and, particularly, when such
alleged deficiencies first manifested themselves. Respond-
ent asserts that the decision for and creation of work
schedules occurred in late August; Hughes testified that
it occurred after the September 30 meeting with Pat
Schroer (in which he was identified as a union advo-
cate). I have credited Hughes. Be that as it may, there is
no question that Respondent assigned him further duties
which he performed.
Particularly since Respondent failed to produce the
timecards to show when Hughes' hours were changed so
that Schroer. might supervise him and the work sched-
ules which might well contain the dates on which the
new duties first were created, I credit Melvin Hughes'
testimony and conclude that the new duties (even if not
10 All of the work lists Pat Schroer gave to Melvin Hughes from Oc-
tober 27 (2 days after the stipulation) to November 19 -were apparently
fully executed (R Exhs 2-7)
REGENCY MANOR NURSING HOME - 1273
more onerous), the formalized work schedules, Jim
Schroer's formally supervising his work, and Pat Schroer
following him around, all occurred post-September 30
and were in retaliation for his engaging in union activi-
ties, were for his being an outspoken union member, and,
occurring after the September _30, 1982 meetings and
after the retention of-the new labor consultant, were in
preparation for further retaliation against Melvin
Hughes. Respondent, beyond cavil, was "building a
case," as Foust earlier threatened. I conclude, therefore,
that whether or not, as alleged, Respondent created
more onerous duties for Melvin Hughes after September
30, 1982, it gave him further duties and engaged in the
above retaliatory, preparatory action against him which.
equally violated Section 8(a)(1) and (3) of.the Act
With regard to the November 19 discharge itself, it
must be noted that Respondent, in spite of a dozen al-
leged recommendations for his discharge, tolerated what-
ever shortcomings Melvin Hughes had as an employee in
the period from at least June (Jim Schroer had a daily
presence at Regency Manor) through November 1982,
without warning him that he had better improve the
quality and quantity of his work or face discipline or dis-
charge Such a condition is unbelievable: I do not credit
the existence of Hughes' alleged incompetence or the al-
leged dozen discharge recommendations. The only fac-
tors which occurred after his identification on September
30 as a union member, spokesman, and sympathizer were
the October 25, 1982 stipulation (for the December 7
election) and, 1 week later, the November 2, 1982 meet-
ing. There Melvin Hughes was identified as the "outspo-
ken" spokesman for the disaffected and apparently dis-
contented nurses aides concerning their working condi-
tions. It was at that meeting that Jean Foust singled out
Melvin Hughes as the union ringleader and, as Mary
Hughes' credited testimony demonstrated, threatened to
fire him because of it. Even without this threat, the pre-
ponderance of all the other credible evidence, including
the creation of work schedules, following him around,
etc., leads me to conclude that, even without such an un-
lawful threat, Respondent discharged Melvin Hughes in
violation of Section 8(a)(3) and (1) of the Act on No-
vember 19, 1982.
As above noted, Respondent tolerated, without warn-
ings, whatever shortcomings he - had until it appeared
that there was an election in prospect on December 7. It
accepted his shortcomings, if any, prior to that time and
the only significant element which caused major dissatis-
faction with him was his identification as the union ring-
leader on November 2. Rather than have him vote in the
election, Respondent decided to discharge him.
Also noteworthy are two other elements: in the first,
Pat Schroer, on the undisputed testimony and credited
testimony of Melvin Hughes, told him that his discharge
was an economy move and then switched to the so-
called true ground that Melvin Hughes was inefficient
and too slow and that her husband could do the work
for nothing. Accompanied by her laughter when Hughes
asked for the "real reason," this shift in ground was not
impressive. Moreover, there is Melvin Hughes' uncontra-
dicted and credited further testimony that Pat Schroer
told him when she discharged him that she wanted him
off Respondent's premises. Such a statement by Pat
Schroer is not consistent either with a termination be-
cause of inefficiency, or a termination because her hus-
band could do the work for nothing, or because it was
an economy move. Rather, under the circumstances, it is
the clearest announcement of direct animus against
Melvin Hughes. The General Counsel,-having established
a strong prima facie case (knowledge, animus, timing,
and explicit threat of discharge), the question arises and
immediately is answered as to what the source of this
strange exhibition of animus during a terminal interview
against an allegedly slow employee could be. it is un-
doubtedly Respondent's identification of Hughes as the
source of Respondent's union troubles. Thus, this display
of animus undermines the putative defenses. I therefore
conclude that the November 19, 1982 discharge of
Melvin Hughes was based entirely on his activities in
support of the Union herein and violated Section 8(a)(3)
and (1) of the Act. It is necessary to cite, but not to ana-
lyze, the questions of burden of proof under Wright Line,
251 NLRB '1083 (1980), for, at best, the reasons ad-
vanced by Respondent to rebut the General Counsel's all
but irresistible prima facie case for the termination of
Melvin Hughes are pretextual, even if true, and I con-
clude that they appear to be unsophisticated fabrications
and untrue C & R Coal Co., 266 NLRB 208 (1983); Har-
rison Steel Castings Co, 169 NLRB 5 (1968) Respondent
had "built" its case by November 19, and discharged the
"outspoken" union spokesman, as Foust had threatened
on November 2, for the alleged work shortcomings it
had tolerated, without contrary warning for more than 6
months.
As noted hereafter, although the above facts demon-
strate a case of 8(a)(3) and (1) violation because Re-
spondent decided to (a) rid itself of the "outspoken"
union advocate and (b) underline to Hughes' coem-
ployees the consequences of Hughes' union support and
advocacy, there was another, urgent, unlawful reason for
the November 19 discharge: to prevent Hughes from
voting in the already stipulated December 7 election.
This discharge, therefore, is further objectionable con-
duct on which the December 7 election should be estab-
lished.
Melvin Hughes was unlawfully discharged on Novem-
ber 19, 1982.
F. The Discharge of Nancy Helton on November 25,
1982
Nancy Helton was notified on November 19, 1982,
that she would be discharged This was no coincidence
and I find that Helton was discharged, in violation of
Section 8(a)(1) and (3) of the Act, because Respondent,
as in the case of Melvin Hughes, did not want Nancy
Helton to vote in the December 7, 1982 election.
Helton credibly testified that she had been employed
at Regency Manor commencing September 1980 and was
discharged on November 25, 1982. She was employed as
a nurses aide on the third shift (10 15 p.m. to 6 45 a.m.),
signed a union card (September 7, 1982), and attended
many union meetings 'of employees at Melvin Hughes'
house.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 4, 1982, as above noted, at the end of their
night (third) shift, she and Linda Jo Etler were called
into Patricia Schroer's office before they left. Schroer
told them, as she had told other employees, that she had
hired a labor consultant ; that a ' union would do them
more harm than good ; that with a union , it was a give-
and-take proposition and that they would have to give
up some benefits in order to get benefits such as a union-
security clause . She said that the union consultant was
not opposed to all unions ' but was opposed to unions in
the health care industry; 11 -that if there were a strike, 'Re-
spondent could hire people off the street to replace them;
and that there was no need for third party to intervene
in the solution of problems which they could solve them-
selves. These declarations of union animus violated Sec-
tion 8(a)(1) in that they included a threat to, unlawfully
.withdraw existing benefits if the- employees successfully
supported the Union and a threat of discharge though
couched in terms of hiring strike replacements.' There
was no recognized union , no bargaining , and no strike or
threat of strike. The entire interview was tainted, by
these unlawful statements and threats designed, unlawful-
ly, to discourage union support in the face of the Union's
election petition filed 12 days previously. In addition,
Schroer 's statement demonstrated a concern that Etler
and Helton were already union supporters: she told them
to "get . .. the Union to put things in writing ., . . to
guarantee our dues wouldn't be raised.,.;
When she told them that Linda Townsend was the
charge-aide on the third shift,. they told 'her that (a)
Linda Townsend was not a charge aide ; (b) that they all
did the same jobs and all did the jobs together, and that
(c) Linda Townsend was merely the most senior aide on
the shift It is undisputed that at that time, the third shift
consisted of nurses aides Linda Townsend, Linda Jo
Etler, and Nancy Helton, and that on this third shift, on
5 nights a week, two out of the three aides were on duty
and only on Friday night were all three of them on duty.
They all did the same thing: changed beds, swept,
mopped , dusted, checked the patients , and cleaned up in
case of incontinence. .
On and before November 10, 1982, Schroer had of-
fered-the job of charge aide to Linda Townsend and on
November 10 Townsend turned her down. Thereafter,
the job was offered to Etler, the next most senior, and
Etler also turned her down. It was then 'offered to
Nancy Helton, the least senior' aide on the shift (but not
the least senior aide employed by Respondent,' there
were five less senior aides employed ), but Helton also
turned her down. In all of these discussions; Pat Schroer
told the aides on all shifts that the 'reason that there must
be a charge aide-a supervisor-was that the ;State of
Kentucky required that a,supervisor work_ on each of the
shifts. At the hearing, Schroer admitted that there was
no such requirement and' that 'her statementto the, em-_
ployees was untrue 1,2 She 'also admitted as untrue her
" Cf Brownsboro Hills Nursing Home, 244 NLRB 269 (1979)
12 As the General Counsel points out, the State of Kentucky required
personnel with responsibility for the patients, not over employees (Br
28-29) .
telling employees that the Kentucky investigators de-
manded that she have supervisory employees on each
shift . Rather , it was clear that the regulations and stat-
utes of the State of Kentucky (G.C. Exh 11; R. Exh. 15)
require only that there be an administrator "who shall be
responsible for the operation of the facility and shall del-
egate such responsibility in his or her absence "
What Schroer. finally. admitted was that she wanted
them to become "supervisors" rather than merely medi-
cally responsible charge aides. Supervisors are' not per-
mitted to vote in Board elections.
In any event , on November 19, in a Pat Schroer dis-
cussion with Helton and Etler, Etler told her she did not
want the job of charge aide because of the way the em-
ployees were "acting" notwithstanding that the money
was tempting.
.Pat Schroer then turned to Nancy Helton and, as the
least senior employee on the shift, asked her to become
the charge aide. It was at this point that Nancy Helton
told her that the timing was bad especially considering
what was going on among the employees even though
the money was good. Pat Schroer told Nancy Helton
that if she refused to become the charge aide, Schroer
would have to lay her off even if it meant hiring some-
one from the street Helton said she did not want the su-
pervisor's job because it would make enemies out of
friends. Pat Schroer attempted to reassure her and told
Helton that -either she (Schroer) or Strause would take
the blame in case of any personnel problem. Helton still
refused to become a supervisor. Etler then asked Pat
Schroer whether Nancy Helton, if terminated, could
vote in the election. Schroer told her that she could not.
They then asked her whether, if Helton accepted the po-
sition, she could vote in the election. Pat Schroer -told
them that she could vote but she would be challenged by
one side or the other Schroer then falsely told them that
she had planned to have the supervisory jobs- long before
the Union entered the picture and also told Helton that
she did not consider Helton's answer as final The above
conversation on November 19, 1982, occurred in the
morning. Later on the same day, about 4 p.m., Schroer
telephoned'Helton and asked Helton if she would accept
the supervisory job and Helton told her that the answer
was still no Schroer told her that she would then start
searching for Helton's replacement.
On November 24, about' 11:30 p.m., Pat Schroer, from
her home, 'telephoned Helton at' work. Helton put Linda
Jo Etler on the phone extension so that she could listen
to the conversation Pat Schroer told Helton that she
had found' a' replacement' to' start on November 26 and
asked 'Helton to work' on Thursday (Thanksgiving),. No-
vember 25. Helton agreed to do" so and Schroer told her
that she would pay her for Friday even if she did not
work on' that day as long as she worked on Thursday.
Helton told Schroer that she wanted to work on Friday
as well because she did not want to' have Etler work
alone with a new replacement. 'Schroer answered that
she did not want Helton to work on Friday because of
the awkwardness of having Helton and her new replace-
ment work together. At this point, Helton, knowing that
Linda Townsend had changed her mind and had already
REGENCY MANOR NURSING HOME- 1275
agreed to accept the charge aide position , 13 told Pat
Schroer that the real reason that Pat Schroer wanted
Helton to become supervisory charge aide was because
of the Union and because Schroer did not want Helton
to vote in the union election by the device of making her
a supervisor . Schroer answered that that was not so; she
was committed on a replacement for Helton and that the
State of Kentucky had been'up to Regency Manor three
times and caught her without a charge aide on the third
'shift . In any event , Pat Schroer told Helton that Town-
send had equivocated on accepting the charge aide job
but in the future Schroer would consider calling Helton
first if there was any job opening . At the hearing,
Schroer denied this version of the conversation but re-
peatedly testified that Helton was a' good worker.14 I
credit Helton 's testimony.
Helton worked Thursday night (Thanksgiving) and
thereafter voted by challenged ballot in the December 7
election.
I conclude that Helton was first notified on November
24 that she was to be terminated effective after Novem-
ber 25 , but she was paid for November 26.
On November 26 Ruby Wallace became the charge
aide and replacement for Nancy Helton . She `came to
work on that Friday night and worked through Monday
night when she quit. She nevertheless did the same job
as Eller and Helton had always performed notwithstand-
ing any change of title (charge aide). Indeed , Etler's-un-
contradicted and-credited testimony is that Wallace not
only received the same pay as Etler , but when Schroer
introduced Ruby Wallace to Etler, she told Ruby Wal-
lace-to obey Etler 's orders until she learned the routine;
after that , she could change the routine if she wanted to.
Further , counsel for Respondent conceded that Ruby
Wallace , like any other employee, ,was hired as a proba-
tionary employee . He could not answer the questions (1)
how,a supervisor could be hired as a probationary em-
ployee, and (2) how a supervisor could be told to follow
the directions of a unit employee and be placed under a
unit employee to learn the job. Eller credibly testified,
without contradiction , that , Wallace's job was not differ-
ent than other aides, including herself or Helton; that
there was no training for her; and that , as above noted,
Wallace was paid the same as Etler according to the
paystub which Wallace showed Etler. .
In particular , other replacement charge aides started at
the ordinary nurses aide rate of pay but were subsequent-
ly raised from $3.66 per hour to $3 95 per hour With
regard to the present charge aide (Kim Smith), Eller cre-
dibly testified that when Smith . is not there , there is no
charge aide , thus further contradicting Pat Schroer, who
testified that the State required that there be a superviso-
ry charge aide present on all shifts , which was the reason
that Helton was given the choice of either quitting or be-
coming a charge aide. , Eller testified that although she
13 On November 23, 1982, nurses aide Linda Townsend told Pat
Schroer that she would accept the job in view of the fact that neither
Etler nor Helton accepted it (R Exh 17)
14 Helton. testified that Schroer told her she would consider calling
Helton first to fill any future job Schroer dented saying that I do not
credit Schroer 's denial As will be noted hereafter , Helton was not re-
hired to fill an open position because Schroer "changed her mind "
discusses problems with charge aide Smith , nothing hap-
pened if either Smith or she, at the end of their third
shift , requested others to lend a hand when the first shift
came on to- work Both ' Smith and Etler asked other em-
ployees for help but nothing happened if it was not
given.
The evidence also shows that scheduling among the
the -three third -shift employees is worked out among
themselves.
Around October 15 and , in any case , before November
2, 1982 , Respondent circulated job descriptions for its
new supervisory positions of "charge aide" and "head
cook." 15 With regard to the duties and responsibilities of
the charge aide, there was no proof that any- of the
charge aides directed the work of any of the other
,charge aides or did any other work inconsistent with the
other charge aides . The evidence shows that the job de-
scription,(R. Exhs. 8 and 9) and the organizational chart
(R. Exh . 13) were created solely by Respondent's labor
relations consultant , (Forshee) and attorney (Fenton). Pat
Schroer did not create them and merely acquiesced and
adopted them when they were proffered to her , notwith-
standing that , -at first , she.testified that her attorney and
labor "consultant" merely helped her compose it. She
later admitted they composed it and she merely acqui-
esced.is
15 The obligations and duties of the charge aide are as follows (R
Exh8) ,
REGENCY MANOR NURSING HOME
Job Description Charge Aide
The Charge Aide is responsible for planning , coordinating, and
providing the management of resident care and service in the Home
during his/her shift The Charge Aide will assist , guide, and disci-
pline employees under his/her supervision whenever necessary The
Charge Aide works under the direction'of the Resident Care Coordi-
nator , and provides direct supervision of the Aides
I The duties and responsibilities of the Charge Aide include the
following -
Assume 8 -hour responsibility for the Aides , assign their work, and
assist the Aides to consistently attain highest quality care , and serv-
ice -
2 Keep the Resident Care Coordinator informed of resident infor-
mation, incidents, and special needs and problems
3 Conduct report or rounds at the beginning and end of shifts
4 Prepare the job schedules of Aides assign [ed] to his/her shift
5 Confer with the Resident Care Coordinator in evaluating per-
sonnel , and recommend promotion and termination
6 Responsibly direct the Aides under his/her supervisor in the
performance of their duties'
7 Counsel and discipline employees as necessary Suspension and
discharge of, employees may be effected only in consultation with
the Resident Care Coordinator"
16 Her testimony was as follows
Q 'Did you draft these classifications and descriptions'
A Meaning I did write them
Q Well did you write them at all, did you really have any in-put
into those or are they the product of Mr Forshee9
A -He wrote them, I guess they [Fenton and Forshee] didn ' t trust
me to do it well,,to ' do a good job '
To the extent , therefore, that Pat Schroer may have implied that For-
shee and Fenton were mere draftsmen iii the creation of "supervisors." I
do not credit her Further, I have no difficulty in concluding that, apart
from her own evident desire to defeat the Union's organizational effort,
she accepted Forshee 's and Fenton ' s paper strategy' as the device to ac-
complish that result Nothing could be clearer , from my observation,
than ' that Pat Schroer was relatively an innocent , following the orders of
Continued
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Failure to Rehire Nancy Helton in June-1983
Helton was engaged inunion activities and Respond-
ent's employees , at all times , on or after , September 30,
1982, were the object of Respondent's union animus and
unfair labor practices, including the November 19 dis-
charge of Melvin Hughes in violation of Section 8(a)(1)
and (3) of the Act. I do not credit Patricia Shroer's
denial that when she told Helton that she was terminated
on November 19 (coincidentally on the same day and
perhaps a few hours before she , terminated - Melvin
Hughes), she had no suspicion or knowledge of Helton's
union ;activities . I credit Schroer 's testimony that about
November 24, when she told Helton that she had actual-
ly found a replacement for her and that her'termination
was effectuated, she did have knowledge of Helton's
union activities, especially when, Helton told her that
they,both knew that the real reason she was being let go
was because of the Union and because- of Schroei'•s
desire to prevent Helton from voting in the approaching
election. In any event,' as above noted, I have found that
Schroer told Helton' that'in the future, 'she would give
her preference if an opening occurred Schroer admitted
that Helton was a pleasant person and a good worker
There is no question but that about May 30, 1983, Re-
spondent, discharged Debbie Pelfrey for cause and an
opening for a nurses aide occurred on the second shift.
With the job still open, Nancy Helton filed an applica-
tion and said that she would work on any shift. Pat
Schroer testified that she was already in the process of
negotiating with the replacement for Debbie Pelfrey and
that on June 15 the replacement, who was negotiated
with since June 8, never showed up. Indeed, at the time
,of the hearing, the position was still open. To the extent
that Pat Schroer not only denied knowledge of Helton's
union sympathies but said that it made 'no difference to
her, I do not credit Schroer's show of indifference.
When asked at the ; hearing why she -did not rehire
Helton, an admittedly good- worker, when the. job was
repeatedly open - commencing about, May 30, 1983,
Schroer testified, for 'the first - time, that she wanted
"fresh blood" and someone who -was-free from the old
"turmoil "17 She also mentioned, for the first time, that
her husband told her that we had found rocks in' the gar-
bage disposal' and she, suspected- that Helton was the
author of this sabotage, and that she suspected--Helton of
using medical records without authorization in order- to
contact the relatives of residents in -Regency -Manor to
protest, under the Union's supervision, the treatment ac-
corded to these residents Nevertheless, Schroer admitted
that there was a job opening for her on the second shift;
that Helton had filed a 'timely 'application; and that her
.'experts" Cf Brownsboro' Hills Nursing Home, 244 NLRB 269 (1979)
Neither Forshee nor Fenton was named as a Respondent or agent - in the
consolidated complaint - - _ ;
.17 Since the "turmoil" evidently referred to the employees' union ac-
tivities , the demand for, "fresh blood" meant employees unacquainted
with the " turmoil " Pat Schroer admitted that she "regretted " giving as a
reason for not rehiring Helton that Helton had soniethmg'to do with the
"turmoil ' ' -- . ,
,
>
principal reason for refusing to hire her was because she
was associated with the "turmoil" of the prior events. i 8
Discussion and Conclusions
Among the principal factors concerning the resolution
of the alleged unlawful termination of Helton on Novem-
ber 25 , 1982, are. (a) the Respondent admitted that,the
State of Kentucky did not require that any persons in
charge of a shift be a statutory supervisor, (rather,. 'the
State of Kentucky regulations requires only that some-
body be responsible, for the residents); (b) it is uncontest-
ed that Respondent told its nurses aides , whom it sought
to cause to become charge aides, that the State of Ken-
tucky, required: that they become supervisors and that
Respondent, supplied these employees with job descrip-
tions created by its antiunion labor consultant- (admitted
by Patricia Schroer to be against unionization in the
nursing industry) and its attorney (Fenton); (c) the State
of Kentucky did;not require that Respondent create stat-
utory supervisors out of its charge aides, (d) it was Pat
Schroer who desired the charge aides have.statutory su-
pervisory status, and (e) the charge aides (Ruby Wallace
and Kim Smith) -hired by Respondent, on this record; ex-
ercised. no supervisory powers regardless of the job de-
scriptions that -were previously created by. Respondent's
labor consultant and lawyer. As will be noted below,
other. alleged supervisors, including the head cook (Betty
Smith) and the charge aide on the second shift (Joyce
-Miller) were not supervisors notwithstanding that they
may have exercised sporadic.supervisory powers:
There is no question that in a unit of a size no greater
than 16 employees, as here, in the face of Respondent's
unfair labor practices, the employees', openly held union
meetings, and especially Respondent 's unlawful interro-
gations, -threats, and discharge' (Hughes, November 19),
an inference could be drawn that Respondent, contrary
to its denial, knew that Helton was a member of the
Union'well before the time it terminated her on Novem-
ber 25, St. Johns Construction Corp., 258 NLRB 471, 480
_(1981), and, separately, it had such, knowledge because
Schroer suspected, Etler and-Helton of supporting the
,Union. Her October 4 advice to them 'to have their
"Union guy"- put things in - writing to protect them
against unconscionable raises in their union , dues , and as-
sessments supports this conclusion. On the actual date of
notice of discharge, November 24, there was no question
that : Schroer knew of Helton 's union sympathies because
Heltori• confronted her with the suggestion that she was
being replaced because of the Union.and Schroer's desire
to prevent -Helton .from voting in the approaching elec-
tion.. '
Alternatively,. even if Helton 's suspected, union mem-
bership-or sympathiesIwere not the exclusive motive for
her termination on November 25, I,find that a clear, pre-
,
18 Other reasons advanced at the hearing , apparently for the first time,
are (l) Schroer was worried over Helton's willingness to follow orders,
(2) there was no opening on the third shift (though Helton applied for
work on any shift ), (3)' "1 just changed my mind", (4) Schroer asked
whether Helton was actually available to work , and (5 ) " I don't like to
be put in the position of saying why I' didn't hire her", and (6) Schroer
was not happy with any third-shift personnel '
REGENCY MANOR NURSING HOME 1277
, ponderance of the evidence shows that. Respondent's
motive in discharging Helton was part of Respondent's
union animus and its plan to deprive employees of their
statutory right to vote. I conclude, on the basis of this
record, that Respondent (and Pat Schroer, in particular),
at the 'instigation of Forshee and Fenton, its labor con-
sultant and its attorney, adopted Forshee's' and Fenton's
scheme to create a new, papier mache job classification
system, including the creation of "supervisor," by -which
Respondent "i'would offer employees the "supervisor"
charge aide position, which,' if refused, carried the alter-
native of being terminated from employment. Whether
the, purpose of this manuever was to decrease the
number of employees qualified to vote in the approach-
ing December 7 'election (by either terminating, them or
causing them to vote subject to challenge, with Respond-
ent claiming them to be supervisors) in order to enhance
the voting strength of employees whom it estimated to
be against the Union or, in conjunction with the effects
of its unfair practices, . to intimidate other employees is
immaterial. Assuming, arguendo, that Respondent may
lawfully respond to the " Union 's
,
organizing among its
employees by creating supervisory positions and. filling
them with unit, employees, it may not do so, as here,
where (1) by threats of discharge, loss of benefits, or
change of job positions it unlawfully coerces unit em-
ployees to become supervisors, to prevent -their being
able to vote; or (2) the supervisory positions exist on
paper only as part of a scheme and the employees per-
form essentially their old jobs. Both of these circum-
stances exist here Both are part of Pat Schroer's acquies-
cence in the scheme to deprive unit -employees of their
right to-vote. Where either factor is present, the scheme
violates Section 8(a)(1) of the Act. Where, as here, both
are present, the violation is even clearer. Cf. ' United
States Gypsum ,Co., 105 NLRB 931-936 (1953).• "
The evidence in support of the conclusion that the aim
of Respondent, coercing employees to become supervi-
sors, was unlawful itself and part of an unlawful plan, to
affect the election is found in ,the. timing of these "pro-
motions" 19 in instituting the new supervisory change in
October, Respondent' s union animus, Respondent's use
of threats of discharge and other retaliation to force unit
employes to' become- supervisors even with raises in their
pay; the unlawful 'November 19 discharge of Melvin
Hughes; the fact that the newly hired replacement 'super-
visors did not exercise actual supervisory authority, the
fact that Helton's replacement, Supervisor Ruby Wal-
lace,- was placed under the direction' and control 'of a
mere employee by Schroer until Wallace learned the job;
the fact that Schroer did not want Helton working with
Wallace, her replacement; even for a 1-day job' familiar-
ization purpose; and Respondent's September 30 promise
of benefits to employees after the Union filed its election
petition. Furthermore, when, on'November-:24, Helton
confronted Pat Schroer with the "real reason" for her
being discharged (because of the Union and' in order to
i9 "[The] more imminent 'a representation 'election ,, the greater the pre-
sumption ' that management 's 'expression of concern for employees' wel-
fare has an impermissible motive " NLRB v Rich's of Plymouth, 578 F 2d
880, 883 (1st Cir 1978), cited in Gordonsville. Industries, 252 NLRB 563,
568 (1980) •
prevent Helton from voting), Pat Schroer retreated to
the admitted false basis for Helton's being replaced as the
reason for -'her discharge. the requirement of the State of
Kentucky that the charge aides become statutory super-
visors. '
Thus, I conclude that on November 24 Pat Schroer
unlawfully-'terminated Helton as of November 25, and
that the termination was for the purpose of discriminat-
ing against Helton's-union sympathies in violation of Sec-
tion 8(a)(3) of the Act and was pursuant to a plan by
which Respondent sought to prevent a certain number of
employees from voting either by making them "supervi-
"sors" or by terminating them. Such a' plan and device, as
alleged in complaint paragraph 5(c) violates Section
8(a)(1) of the-Act, and when effectuated with "the dis-
charge of an employee who, ' like Helton, is known or
suspected of being sympathetic to the Union and refuses
the promotion to supervisor, also violates Section 8(a)(3)
of the Act. Respondent's admittedly false defense that
the replacement of Helton was mandated by Kentucky
requirements for a statutory supervisor to be in charge of
Regency-Manor residents on all shifts further supports a
finding ',of discriminatory motive. Thus, the General
Counsel having proved a prima facie case that a motive
was unlawful, Respondent failed to meet its statutory
burden of proof, by showing that it would have, taken
the same action even in the presence of the prima facie
case . NLRB. v. Transportation Management Corp., 462
U.S. 393 (1983); Limestone Apparel Corp., 255 NLRB.722
(1981); Wright Line, 251 NLRB 1085 (1980). I therefore
conclude that the Respondent, in violation of Section
8(a)(3) and (1) of the Act, unlawfully' discharged Nancy
Helton -on November 24, 1982, effective November 25.
In reaching the above conclusions, I am not suggesting
that an employer, faced with an organizing effort among
its employees, may not create a defined supervisory hier-
archy; nor am I necessarily suggesting that in so doing,
an employer's 'misinterpretation of a 'state law requiring
;the creation of supervisory status, alone, implies unlawful
motive' where, as heie, the change in status is simultane-
ous with union organizational activity. Where, however,
knowledge, animus, and coercion accompany such other
factors, and a pending petition, for certification affects
such supervisor, a different-case' is presented Compare:
Benson Wholesale, Co.,, 164 NLRB 536, 548 (1967), and
U.S. Gypsum Co., 105 NLRB 931, 936 (1953). Unlike
US. Gypsum, the instant case is not a representation case
where the disputed supervisor may merely vote subject
to challenge. 'Here, challenge and remedy are to be re-
solved.,,,
H. Respondent's Unlawful Refusal May 31, 1983, to
Rehire Helton
At the hearing, the General 'Counsel amended the
complaint by alleging that since about May 31, 1983, and
continuing thereafter, and" particularly on June 15, 1983,
Respondent failed and refused to hire Nancy Helton
This failure was alleged-to constitute a separate violation
of Section 8(a)(1) and (3) of the Act I-find that this fur-
ther alleged action is not a' mere continuation of Re-
spondent's prior unlawful discrimination because it re-
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lates to a separate job transaction involving -a job on a
different shift`
At the hearing, Schroer admitted that about Novem-
ber 24 she had conversations with Helton, concerning
Helton's support of and sympathy for,,the Union. She
also admitted that there was a job openitig in,the period
commencing about May 31 which was filled regardless
of Helton 's timely , pending job application and regard-
less that the job opportunity. repeatedly presented itself.
It was open on the day of the hearing, June 15, 1983.
She further testified that she would not rehire Helton,. re-
gardless of qualifications, unless obliged to do so by
force of law. I have credited Helton's testimony, over
Schroer's halfhearted denial, that Schroer on November
24 told Helton that she would have preferential status if
a job came open . Schroer admitted that Helton was a
good worker and a pleasant person.
No extended discussion is required to determine that
the reason that Helton's application of May-31 was not
considered and that she was not then or thereafter hired
for the actual job opening was-because of Helton 's union
activities . Pat Schroer admitted as much when -she stated
that the application was not considered because • she
wanted "new blood" and that she did• not want Helton
because Helton was associated with the "turmoil"' which
existed prior to Helton 's termination . Absent other expla-
nations, I regard "turmoil" as a code word for Helton's
association with union activities. 'I therefore conclude
that Respondent's failure and refusal to lawfully consider
Helton 's outstanding application as a nurses ' aide for em-
ployment on any shift to be a separate violation of Sec-
tion 8(a)(3) and (1) of the Act
The Board rule is that the violation of Section 8(a)(1)
and (3) is perfected upon Respondent's refusal to give
nondiscriminatory consideration to Helton's application.
The exact date of the availability of the job is a matter of
Respondent's backpay obligation which is properly left
to the compliance stage. See C & R Coal Co., supra, and
cases cited therein. 20
I. The Challenged Ballots of Joyce Miller, Cheryl
Crank, Sharon Strause, and Betty Smith21
Then Regional Director 's Report on' Objections and
Challenged Ballots notes that: .
20 One must also note the^Janous and shifting explanations , all mciedi-
ble. Schroer advanced at the-hearing for her failure to rehire Helton (1)
Helton 's speculative unwillingness to follow orders , (2) "I just changed
my mind" , (3) "I just don 't like to be put in the position of saying why I
didn't hire her", and (4) she was not happy with all third -shift personnel
Such defenses do not meet Respondents burden of proof, i e , showing
that Helton would not be considered for reasons other than those sup-
porting the prima facie case Wright Line, 251 NLRB ^1083(1980) Indeed,
they strengthen the prima facie case -
21 By virtue of my conclusion , above, that Respondent unlawfully ter-
minated the employment of Melvin Hughes and Nancy Helton, I eon-
clude that their ballots , challenged by Respondent at the - election,'were
ballots of unlawfully terminated employees ,Unlawfully terminated em-
ployees are employees for voting purposes . Therefore„ their ballots
should be opened and counted and the challenges overruled Dutch Boy,
Inc, 262 NLRB 4 (1982), Jaybill Steel Products, 258 NLRB 1180, 1195
(1981)
Although the parties are in agreement that Miller,
Crank , Strause, and Smith were classifiedas super-
visors at the time of the election, , the petitioner
-. (Union)'contrary to the employer, maintains the em-
ployer unlawfully created the supervisory positions
to which these individuals were assigned in order to -
discourage employees' activities.on behalf of the pe-
titioner and to influence the outcome of the elec-
tion . On January 26,. 1983 , a -complaint , issued -in
Case 9-CA-19047 alleging, among other things, that
the employer unlawfully:classified these individuals
as -supervisors in violation . of Section 8(a)(1) of the
• Act.
(1) I have concluded, above, that a preponderance of
credible evidence supports this allegation (par. 5(c)).
Thus, for -purposes of resolving the challenges based on
supervisory status (Joyce Miller , Sharon . Strause, and
Betty- Smith), if is unnecessary to analyze or determine
whether, -irt fact, these persons were statutory supervi-
sors For since their status was the result of an unlawful
and-coercive scheme to ensure the undermining of possi-
ble union voting strength by creation of "'supervisory"
positions, the challenges should be overruled, without
regard to.actual supervisory capacity, if ''Only to ensure
the integrity of Board election processes and prevent ,ob-
struction thereof by unlawful schemes ' and devices. Cf.
Cherokee, Brick Bt Tile Co., 100 NLRB 612, 615 (1951).
(2) Although the merits of whether they are statutory
supervisors need not thus be reached , in resolving the
challenges, if- the, merits were ,reached, 1-would find the
following
With regard to the challenged .ballots of Joyce-Miller,
Cheryl Crank, Sharon Strause, and Betty Smith, the par-
ties at the hearing entered into a stipulation ' whereby
they agreed that ( 1) at all material times prior - to and in-
cluding September 13, 1982 , Cheryl Crank was a - unit em-
ployee but -thereafter became a supervisor within the
meaning of the Act and (2) that her ballot in the Decem-
ber 7, 1982- election should not be opened or counted.
Since Cheryl Crank on or before September 13 was stip-
ulated to be a' unit employee, and previously signed a
union membership application card ("9/8/82"; G.C. Exh.
.6(c)) I Will, as' seen below, count her card for union ma-
jority, purposes, but will recommend to the Board, in
view of' this stipulation, that the challenge to Cheryl
Crank's ' vote be sustained, and that her ballot not be
opened.
,,With regard to Joyce Miller and Sharon Strause, the
parties entered ,intoa further stipulation ,
In the period prior to and . including September 13,
1982, Sharon. Strause's duties included those patient
care functions . that a nurse's aide (a unit employee)
performed and that those duties took a majority of
her working time„ and further, that whatever super-
visory duties,, if any,, Strause may ' have 'had were
the same . as, and • no more than, those of -Joyce
Miller in 'the'same period of time.
REGENCY MANOR NURSING HOME 1279
Joyce Miller
Miller , challenged by the Board agent , testified that at
the time of the hearing she was a nurses aide and that
before Septemer 13, 1982 , was a "charge aide" having
become charge aide on the second shift 1 year after start-
ing her employment with Respondent 's predecessor. She
became charge aide before the Union distributed its
membership application cards in September 1982. The
'General Counsel''contends that neither before nor after
September 13, 1982 , was Joyce Miller , as "change aide,"
a supervisor within the meaning of the Act. Respondent
contends that Miller , as a "charge aide," was a supervi-
sorwithin the meaning of the Act even before the distri-
bution of Respondent 's new charge aide job descriptions
about October 1982; and that, whatever her status before
October 1982 , thereafter she surely was a statutory su-
pervisor at the time of the December 7 election
In particular , Miller was " first employed by the prede-
cessor of Respondent of Regency Manor in 1976 and got
the title of charge aide in 1977 . Her duties since April
1982, when Respondent - took over the ownership and
management , at Regency Manor, through September
1982 were the same as all other charge 'aides on the
second shift , except that she filled out the transfer sheets
of patients to record their transfer into and out of Re-
spondent 's facility . The other nurses aides on the second
shift did not do so. Miller received 10 cents per hour
more than other aides based only on her longevity. She
did not consider herself to be a supervisor. -
Sometime on or after November 2, 4982 , Pat Schroer
spoke to her about her job as a charge .aide She asked
Miller to become a "supervisor " Miller told , her she
would have to think about it Schroer told her that she
would have all responsibilities for the patients including
reading the patients ' charts and scheduling the other full-
time and one part -time nurses aides on the second shift
(2:15 to 10:45 p . m.). Miller had always read patients'
charts, but scheduling was an added . element One week
later Miller sought out Schroer and told her that she did
not know what to do about accepting the position.
Schroer told her that there would be no change in her job
and that she would give her more money if she became
the charge aide. Schroer told her that if she did not take
the supervisor 's job she would have to resign "Miller`tes'-
tified that she was the sole support of her family and she
took the job. Thereafter , with three nurses aides , includ-
ing herself, on the second shift on'. I day of the week, and
two nurses aides, including herself , on the shift all other
days' of the week , Miller did the scheduling of the shifts
for the employees but, nevertheless, did the same job she
had always done 'including reading the patients ' charts.
Otherwise , there was ;no difference in her job . She-was,
however , raised in pay from $3.76 per hour to $3 95 per
hour.
In addition to scheduling ' requests for the other nurses
aides for time off, in, case 'of illness of an employee, she
calls in ' a substitute and permits the sick employee to
leave. Other nurses aides " do-'not do this. She also tells
employees what they are supposed to do and no other
nurses aide does what she does, including revisions of a
schedule. On the other hand , on her days off (2 days per
week), an ordinary nurses aide takes over her position,
although sometimes Miller leaves instructions for the
nurses aide who becomes the charge aide. Miller testified
that she never evaluated any employee or recommended
any employee for a promotion. In case of discipline,-she
merely reports any breach of discipline to Pat Schroer.
Discussion and Conclusion -
-It is apparent that the principal change in her job, con-
sistent with the stipulation , is the fact that Miller now
schedules'the nurses aides on her shift for worktime and
time off She was also raised in pay from $3.76 an hour
to $3.95 an hour.
There is no evidence that after September 13 she spent
her worktime differently - she still devoted more than 50
percent of her time doing unit work . In fact, her job, as
Pat. Schroer emphasized , remained the same as it -did
before her "promotion " I also note the small size of the
group of nurses aides on the second shift (at most -two
and, most often , one nurses aide along with Miller on the
shift), the stipulation that a majority of her working time
was spent in the unit work of other nurses aides, and the
retention of the right to discipline employees remaining
in-Respondent rather" than in Miller . The only substantial
differences are Miller 's righi to prefer herself to her co-
aide on ' scheduling her own shift ;. her ability to call in
substitutes for sick employees , and the 19-cent -per-hour
wage increase . In these - circumstances , I would find
Joyce Miller , at all material times, to be a nonsuperviso-
ry leadwoman rather than a statutory supervisor The
Board rule - is that an employee who, as stipulated , spends
50 percent or more of her time (up to September 13) per-
forming nonsupervisory duties cannot be denied the ad-
vantages of collective bargaining . Statler Industries, 244
NLRB 144 , 151 (1979 ). There was no suggestion, much
less proof, that after September 13 Miller 's scheduling
employees or any other nonunit duty would take 50 per-
cent or more of her time. As above noted , on the con-
trary, she testified that her job was essentially the same
as it was before her promotion and that she spent her
time doing unit work . I am also mindful of the fact,
moreover, that Schroer , without contradiction, told
Miller that there would be no change in her job except
the -payment of more money. Prior to the change in job,
Miller did not perform scheduling . It- therefore appears
that Respondent 's own evaluation - was that the change in
the nature of the job was insignificant notwithstanding
that Miller may have - exercised sporadic supervisory
powers and 'that Respondent did not regard . Miller and
Miller 's 'ne'w right to' schedule employees or to permit
the sick employee time off as significant elements.22
22 See especially NLRB v Hillview Health Care Center, 705 F 2d 1461
(7th Gr 1983), where the court, dealing with subprofessionals (licensed
practical nurses), observed that such employees, having the powers to fill
out patients' charts, make written evaluations of subordinate nurses aides,
report work infractions , assign work to"durses aides , send home nurses
aides on a claim of illness , and schedule nurses aides for overtime , are not
statutory supervisors with the meaning of Sec 2 ( 11) where the use of dis-
cretion is either routine or exercised within the bounds of professional
judgment based on experience Here : of course , the charge aides are not
LPNs
-1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the Board is not bound by the employer's evalua-
tion of an employee's job, it is probative that Schroer re-
garded the change as no change . I would therefore rec-
ommend that the challenge to Miller's ballot be rejected
and that Miller's ballot be opened and counted.
Concerning the period prior to and including Septem-
ber 13, 1982, Miller did not have the right to schedule
and was paid the same rates as the other nurses aides.
This was so even though she was "charge aide" for the
second shift. I conclude -therefore that, regardless of her
postpromotion status on and prior to September 13, 1982,
Miller was not a supervisor within the meaning of the
Act and was a unit employee.
Sharon Strause
.Sharon Strause testified that she made out work sched-
ules for employees after she received the title of resident
care coordinator and that she received this title after she
signed her union membership application card on Sep-
tember 8, 1982 (G.C. Exh 6(h)).
As, above noted, the parties, at the hearing, entered
into a stipulation , above, that Strause's duties up to and
including September 13 included those patient care func-
tions that a nurses aide performed, which duties took a
majority of her time, and that she had the same duties as
Joyce Miller with regard to any supervisory duties that
she had. Consistent with.this stipulation and my findings
with regard to Miller, I conclude that up to and includ-
ing September 13, 1982, Sharon Strause was a unit em-
ployee and not a supervisor within meaning of the Act.
According to Schroer, Sharon Strause was the best of all
the charge aides, was in charge of the first shift, and re-
ceived the 10-cent-per-hour raise to $4 an hour on Sep-
tember 11, 1982 In the week ending November 6, she
was raised to $4.25 an hour and given the key to the
office and the title of resident care coordinator She re-
ceived this title about the same time at the very end of
October although Pat Schroer started talking to her
about the job 2 weeks before this time. Her job decrip-
tion (R. Exh. 12) shows that she has the power, inter
alia, to hire new employees.
There being no showing that she, unlike Miller, was
forced or coerced into the supervisory job and it appear-
ing that she also has full charge of medical records and
was placed immediately under Pat Schroer-in the chain
of command, I conclude that on and after the week
ending November 6, Strause became a supervisor within
the meaning of the Act. I would ordinarily recommend
to the Board that the challenge to her ballot (on the
ground that she was a supervisor) filed by petitioner be
sustained and that her ballot not be opened or counted
Notwithstanding this recommendation, I have previously
found that Respondent's entire supervisory plan was an
unlawful device to undermine union support, and there-
fore Strause's ballot be counted. If the Board rejects
such recommendation, in view of the absence of proof of
coercion and the presence of the power to hire, I would
recommend that Strause's ballot not be opened or count-
ed.
Betty Smith
Respondent challenged Betty Smith's ballot on the
ground that at all material times she was a supervisor
within the meaning of Section 2(11) of the Act.
Betty Smith signed a membership application card
(G.C. Exh. 6(i)) on September 8, 1982. She'has been, at
all material times, a cook employed by Respondent
working Sunday through Thursday from 4:30 a.m. to 1
p.m. each day. The other cooks employed by Respond-
ent were Debbie Burns and Mary Hughes (wife of
Melvin Hughes). Debbie Burns is Betty Smith's daugh-
ter. Debbie Burns' hours are from 10:30 a.m. to 7 p.m.
Mary Hughes, the "swing" cook, has an irregular sched-
ule: 3 days per week she works 10:30 p.m. to 7 a.m and
on Friday and Saturday (Betty Smith's days off),from
4:30 to 7 a.m.
Betty Smith is the most senior cook, does almost all
the ordering of food, but does no cleaning of stoves or
refrigerators. This is done by the other cooks. Unlike the
other cooks, she is off every Friday and Saturday and re-
ceived the title "head cook"on November 3, 1982. She
had several conversations with Pat Schroer about the
title "head cook." In none of these conversations did she
ever speak to Schroer nor did Schroer speak to her
about the Union. ,
The first conversation was in the kitchen about Octo-
ber 20, 1982. Schroer asked herto take the position of
head cook and Smith refused because -she did not want
to be a "boss." Schroer told her -that the State of Ken-
tucky required that she become head cook and that she
or someone else would have to take the job.
The second conversation on and between October 21
and 24, 1982, also occurred in the kitchen with Mary
Hughes-present. Schroer again asked Smith to take the
job and, on Smith's refusal, asked her if she cared if she
asked Hughes or the other cook 'then employed, a Mrs.
Rowe. Smith told Schroer that she did not care
The third conversation, on October 28, 1982; occurred
when Schroer again requested that Smith take the job
and Smith again refused At this point, Schroer told her
that she either had to take the job or become a nurses
aide and be put out on the floor. Respondent would hire
another cook. On the other hand, Schroer told her that if
she took the job she would get an increase in pay. If she
refused the job, her pay would be cut. At that time she
was making $3.76 per hour, 10 cents per hour more than
the other cooks.
Betty Smith, an elderly lady, testified that she was
unable to do the work of a nurses aide on' the floor and
decided, on November 2, to take the job and receive the
increase in pay. She testified that Martha Rowe refused
the job and she decided to take it because she could not
perform any other job. •
With the pay'raise and the new title, Betty Smith testi-
fied that she was given the authority to tell the other
cooks what to do • and now, instead of having Mary
Hughes order some of the groceries on Friday, Betty
Smith was obligated to order all the groceries herself.
She also testified that Pat Schroer told her that her 'only
authority,--in case of any disagreement among the other
REGENCY MANOR NURSING HOME 1281
cooks; was to tell Pat Schroer of any breach of disci-
pline. -
At the time she voted, Pat Schroer told her to vote
and that there would be a challenged-ballot. Schroer told
her that she would take her place in the kitchen while
she voted.
When Betty Smith became "head cook," she received
the new job description (R. Exh. 9) -from Pat Schroer.
Contrary to the credited Smith testimony that Schroer
told her that her only authority with regard to disciplin-
ing employees was to tell Pat Schroer of any breach, the
job description asserts that as head cook, Smith will "dis-
cipline employees under her supervision whenever neces-
sary." The testimony but not the job' description power
is accpeted. The contrary powers in the job description
do not exist. The job description also refers to her right
to prepare the job schedules for the dietary employees.
and to discipline and counsel employees as necessary. As
above noted, she does not counsel or discipline anyone.
The job schedules, on her uncontradicted and credited.
testimony, were created by Pat Schroer exclusively.
Where the job description talks of evaluating personnel
and recommending promotion and' termination, this has
never occurred. Nor has she counseled with Pat Schroer
nor has she done anything other than order kitchen sup-
plies 23 With regard to directing the work of the dietary
employees or assigning them work, she has given the
same orders as the senior cook has done before and after
the change of title I conclude that at all material times,
both before and after September' 13 and before and after
November 2 when she took the title head cook, Betty
Smith has remained and is a unit employee and not a su-
pervisor. That she is the most experienced, highest paid,
and oldest cook is not determinative of her standing as a
unit employee. That she is perhaps the "lead" 'cook in
the three-cook establishment is certainly arquable and
her right to order supplies and tell the the other employ-
ees the order of cooking and cleaning leads to that con-
clusion. The "powers" conferred on her in the superviso-
ry job description, based on her credited testimony, are a
fiction. My observation of Betty Smith and the record
herein shows that she effectively exercises none of the
discrete powers enumerated in Section 2(11) of the Act.
See NLRB v. Hillviety Health Care Center, 705 F.2d 1461
(7th Cir 1983). I do not credit Patricia Schroer's testi-
mony in conflict with these findings.
The record,is clear that Schroer,. by threat of forcing
her to become a nurses aide, a job she could not per-
form, coerced her into becoming. "head cook." .
Further, I have already concluded that the decision to
make her a "supervisor," the above coercion, and the
creation of supervisory positions in the job description
(composed by the labor consultant and the lawyer) were
all part of a scheme and device 'to deceive the Board
and, as with other unit employees, deprive unit employee
Smith of her right to vote in the. election and the right to
support a labor organization. I therefore recommend that
Respondent's challenge to Betty Smith on the ground of
23 Respondent has not contended that any of the new supervisors are
managerial personnel and,'on that ground, not within the unit
her being a supervisor be rejected, and that her ballot be
opened and counted.
With 'regard to challenges therefore, it is recommend-
ed that the challenges of Melvin Hughes, Nancy Helton,
Joyce Miller, and Betty Smith be rejected and that their
ballots be opened -and counted. Sharon Strause's ballot
should be dealt with according to my alternative recom-
mendation to -the Board. The challenge to Cheryl
Crank's ballot should be sustained.
J. Violation of Section 8(a)(5); Remedies
It was stipulated, and the testimony of Patricia
Schroer showed, that aside from herself, there were 16
persons employed at Regency Manor at all material
times up through September 13, 1982, and that that
number (16) would be diminished to the extent that
Sharon Strause, Joyce Miller, Betty Smith, and Cheryl
Crank were found not to be employees but supervisors
within the meaning of the Act I have already concluded
that neither Betty Smith nor Joyce Miller was at any
time a supervisor within the meaning of the Act, and I
conclude that Sharon Strause was not a supervisor up
through and including September 13, 1982. It was stipu-
lated, and I find, that at all material times prior to Sep-
tember 13, Cheryl Crank was a unit employee, thereafter
became a supervisor,, and that her ballot not be opened
or counted.
Under the above-stated facts, it is apparent that any
union cards signed by Crank, Miller, Smith, or Strause
on or before September 13, at which time, as I have
found, all were unit employees, must be counted as part
of the Union's showing of a majority. I therefore con-
clude, on the basis of uncontested and credited testimony
and cards in evidence, that there were at all material
times 16 employees employed in the stipulated appropri-
ate unit24 and that there were 13 signed and valid union
membership application cards delivered to the Union on
or before September 13, 1982, when it made its demand
for recognition to the Respondent (G.C. Exhs 3(a) and
(b)).25 It is clear that 13 cards out of 16 unit employees
create a majority. I find therefore that, at all material
times up to and including the Union's September 13
demand for recognition, the Union. was and now is the
majority representative of Respondent's employees in an
appropriate unit within the meaning of Section 9(a) and
(b) of the Act.
In view of the findings, above, of serious unfair labor
practices, including coercive interrogation, discharges,
threats of loss of existing benefits and of closedown, and
24 The appropriate bargaining unit is agreed to have been and is
All full-time and regular part-time employees employed by the Em-
ployer at its Independence, Kentucky facility, excluding all profes-
sional employees, guards and resident care coordinator, assistant care
coordinator, charge aide, head cook, administrator, and all other su-
pervisors as defined in the Act
25 The employees who signed cards on or before September 13, 1982,
were those contained in G C Exhs '6(a) through (m) Melvin Hughes,
Joyce Miller, Cheryl Crank, Debbie Pelfrey, Cheryl Lynn Hamilton, Lo-_
recta Saylor, Loretta Powers, Sharon Strause, Betty Smith, Mary
Hughes, Nancy Helton, Linda Townsend, and Linda Jo Etler All cards
were "single-purpose" cards There was no attempt to show that any of
the cards should be rejected for majority purposes on the ground of mis-
representation as to their purpose
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's adoption of, acquiescence in, and coercive
implementation of a hoax and plan designed by .its labor
relations consultant (Tom Forshee) and its attorney
(Fenton) to create specious supervisory positions, I con-
clude that if the vote, on the opening of the challenged
ballots of Helton, Hughes, Strause, Smith, and Miller and
the -service of a revised tally thereof, demonstrates a
union majority, then the Board should certify the Union;
and if the revised tally does not show a majority of valid
votes cast for the Union, then it would appear to me that
the election, on the above timely objections, should be
set aside, and that these unfair labor practices were suffi-
cient in gravity and scope to require the issuance of a
bargaining order on the basis of the above cards in favor
of the Union. Respondent's misconduct has fouled` the
election process by unfair labor practices and manipula-
tion of voting eligibility. There need be no extensive
evaluation of the wisdom of issuing such a remedial bar-
gaining order under NLRB v. Gissel Packing - Co , 395
U S. 575 (1969), as opposed to the preferred statutory
method of resolving questions concerning representation
mentioned in Summer & Co. v. NLRB, 419 U.S. 301
(D.C. Cir. 1974) a Board-conducted election. For here,
not only were there the widespread "hallmark" viola-
tions (unlawful discharges, threats of loss of employment,
coercive interrogation) which the Board and court of ap-
peals -have regularly found to fundamentally 'interfere
with the election process and which have a lingering
coervice impact on employee choice, NLRB v. Jamaica
Towing, 632 F.2d 208 (2d Cir. 1980); but here we have an
unlawful hoax supported' by -coercion which Respondent
attempted' to perpetrate on the Union, the employees,
and the Board, the confusion and lingering effects' of
which effectively undermine the possibility of having a
fair election in the above appropriate unit. I would there-
fore alternatively recommend to the Board 'in the ab-
sence of union, certification that a bargaining order be
issued.
I futher would recommend to the Board that Respond-
ent, by the severity of its unlawful conduct, has forfeited
its right to an election I also recommend the bargaining
order be dated to run commencing September 13, 1982,
the date on which the Union requested lawful recogni-
tion, rather than the date on which the Respondent em-
barked on its course of serious unfair labor practices
(September 30, 1982). This earlier date tends to protect
unit employees from intermediate changes in terms and
conditions of employment. See Dutch Boy, Inc, 262
NLRB 4 (1982). Compare Gordonsville Industries, 252
NLRB 563, 565 fn. 15 (1980), with Trading Port„ Inc.,,
219 NLRB 298 (1975) .
Lastly, consistent with paragraph 5(c) of the com-
plaint, as amended, I find and conclude that since about
September 30, 1982, Respondent created and coercively
assigned, certain, fob, classifications to. undermine union
'support among its employes; and I further find that it did
so in order to interfere with the conduct of the Board-,
conducted election of-December 7, 1982.
OTHER REMEDIES
I shall recommend the reinstatement of Melvin Hughes
to' his old or substantially equivalent job and of Nancy
Helton as a nurses aide on any shift,. discharging, if nec-
essary, any employees hired on or after November 19,
1982, and that.Respondent make each of them whole by
payment to them of backpay running from the date of
their respective discharges to,the date of offers of rein-
statement, less net interim earnings, computed in the
manner established by the Board in F. W Woolworth Co.,
90 NLRB 289 (1950), with interest as provided in Florida
Steel Corp, 231 NLRB 651 , (1977).. See ,generally Isis
Plumbing Co., 138 NLRB 716 (1962). `Respondent sh'all-
also be ordered to remove from its files any references to
the above unlawful discharges and refusals to rehire and
shall notify Nancy Helton and Melvin Hughes that this
has been done and that such notations will not be used as
a basis for future personnel actions against them.
Further, in view of my findings that Joyce Miller and
Betty Smith were unlawfully coerced, for an unlawful
purpose, into accepting "supervisory". positions, Re-
spondent shall be directed to promptly offer to return
them to their jobs as they existed on and before Septem-
ber 13, 1982, and make them whole, in the above
manner, for net backpay or loss of benefits,, if any, they
may have suffered by reason of Respondent's unlawful
conduct toward them Neither Joyce Miller nor Betty
Smith, however, shall be obligated to accept any lesser
position or loss'-of pay thereby. ,
In view of my' having found, on the basis of the
Union's timely filed objections consisting of unfair labor
practices, that Respondent's unlawful conduct constitut-
ed objectionable conduct sufficient to set aside the elec-
tion, see Irving Air Chute Co., 149 NLRB 627, 643 (1964),
I need not treat or deal with any of the other timely ob-
jections filed by the Union, including the failure to cover
the window in Respondent's office which overlooked the
voting area in the conference room
Lastly, the nature of Respondent's unfair labor prac-
tices,, including its willingness to adopt a scheme to inter-
fere with Board process, demonstrates the necessity for a
broad prohibition against any other further conduct de-
signed to interfere with statutory rights
CONCLUSIONS OF LAW
1. Respondent Jean Foust, Sole Proprietor, doing busi-
ness as Regency Manor Nursing 'Home is an employer
engaged in commerce within the meaning -of Section
2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International
Union, • Local 1099, AFL-CIO-CLC (the Union) is a
labor organization within the meaning of Section 2(5) of
the Act. t - -
3. Since about September 30, 1982, Respondent coer-
cively interrogated employees concerning, their union ac-
tivities and, sympathies; threatened employees- with dis-
charge, closedown, and other- reprisals if they engaged in
activities on behalf of the Union; threatened employees
with changes in terms and conditions of employment in-
cluding wages. if the employees refused to accept super-
visory positions; made promises of economic benefits to
discourage employees' union support; threatened employ-
ees with loss of existing wages and benefits if they
should select the Union to represent them and if the
REGENCY MANOR NURSING HOME- 1283
Union engaged in collective bargaining; and-,created, and
by coercion assigned, unit employees to certain supervi-
sory classifications in a scheme to undermine union sup-
port, among its employees and to interfere with their
right to vote in a Board-conducted election, all of which
conduct, violates Section 8(a)(1) of the Act.
4. By discharging, respectively, about November 19, ,
1982, and November 25, 1982, its employees Melvin
Hughes and Nancy Helton, and commencing about May•
31, 1983, independently refusing to reemploy or rehire
Nancy Helton because of their union sympathies and ac-
tivities and because Respondent desired to prevent them
from voting in a Board-conducted election, Respondent
discriminated against its employees, thereby discouraging
their membership in, sympathy for, and activities on
behalf of the aforesaid Union, all of which conduct vio-
lated Section 8(a)(1) and (3) of the Act.
5. All full-time and regular part-time employees em-
ployed by Respondent at its Independence, Kentucy fa-
cility, excluding all professional employees, guards, resi-
dent care coordinator, assistant resident care coordinator,
charge aide, head cook, administrator, and all other su-
pervisors as defined in teh Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. At all times since on the after September 13, 1982,
the Union herein has been, and is, the exclusive repre-
sentative of all of the employees in the aforesaid appro-
priate unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, within the
meaning of Section 9(a) of the Act.
7. By refusing, on and after September 13, 1982, to
bargain in good faith collectively in the above unit with
the aforesaid Union, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed26
ORDER
The Respondent , Jean Foust , Sole Proprietor, doing
business as Regency Manor Nursing Home , Independ-
ence, Kentucky , her agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and 'bargain collectively in
good faith with United Food and Commercial Workers
International Union, Local 1099 , AFL-CIO-CLC (the
Union) as the exclusive bargaining representative of all-
employees in the appropriate unit set forth above with
respect to rates of pay , hours, wages, and other terms
and conditions of employment.
(b) Discharging, refusing to rehire or reemploy, or
otherwise discriminating.. against employees because of
their activities on behalf of, membership in, or sympa-
thies for the Union or any other labor organization: or
because -of a desire to-prevent employees from voting in
a Board-conducted election
(c) Threatening employees for, assisting or supporting
the Union or any other :labor organization with dis-
charge, change of jobs„ loss of benefits, or changes in
their terms and conditions of employment; promising or
granting benefits to employees to induce them to refrain
from supporting- the Union or.any other labor organiza-
tion; and creating and, by threats and coercion, assigning
supervisory job classifications to employees in order to
underline union support among employees or in order to
interfere with their right to vote in Board-conducted
elections. .
(d) Coercively interrogating employees concerning
union or protected concerted activities.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organi-
zation, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
and protection, or to refrain from any and all such activi-
ties.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Melvin Hughes, Nancy Helton, Joyce Miller,
and Betty Smith immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the decision.
(b) Recognize, effective September 13, 1982, and, on
request, bargain with the Union as the exclusive repre-
sentative of the employees in the appropriate unit set
forth above concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement.
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(d) Preserve and, on request, make available to the
Board or its agents for examination and' copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its place of business in Independence, Ken-
tucky, copies of the attached notice marked "Appen-
dix."27 Copies of the notice, on forms provided by the
26 If no exceptions are filed as provided by Sec 102 46 of the Board's 27 If this Order is enforced by a Judgment of a United States Court of
Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation-
poses al Labor Relations Board "
1284 ' DECISIONS' OF NATIONAL 'LABOR RELATIONS BOARD
Regional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon 'receipt and
maintained for 60 consecutive days iii conspicuous places
including all places where notices to employees are cus-
tomarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. ' -
(f) Notify the Regional -Director' in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT'IS FURTHER ORDERED that the challenges to the bal-
lots of -Melvin- Hughts, 'Nancy Helton,- Joyce Miller,
Sharon Strause, and Betty Smith, having been overruled,
shall be opened and counted and a revised tally' of ballots
be issued and served on the parties. If the tally shows a
majority vote for the Union, then the Union shall be cer-
tified as representative in the above-appropriate unit. If
the revised tally fails to- show that the Union has re-
ceived a majority of the valid ballots thus counted, the
election shall be set aside and an order -directing Re-
spondent to bargain in the above-appropriate unit shall
issue .- See Gordonsville Industries, 252 NLRB 563, 604-
605 (1980). '
I