Silver Lake Care Center

National Labor Relations Board - Board Decisions

May 31, 2000

331 N.L.R.B. 285 (N.L.R.B. 2000)

SILVER LAKE CARE CENTER 285
Silver Lake Care Center and Teamsters Local No.
523, affiliated with International Brotherhood of
Teamsters, AFL–CIO. Case 17–CA–19008
May 31, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 3, 1998, Administrative Law Judge James M.
Kennedy issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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,1 and conclusions2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Silver Lake Care Center, Bartlesville,
Oklahoma, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Substitute the attached notice for that of the administra-
tive law judge.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 In adopting the judge’s conclusion that Respondent violated Sec.
8(a)(3) of the Act by discharging Cooper, we find it unnecessary to rely
on his finding that Holden agreed that the incident involving Cooper
and Becker at the nurses’ station occurred on January 29 rather than
January 30. We also disavow the judge’s comment regarding what
approach a typical employer may or may not utilize for disciplining
insubordinate employees. See sec. III, par. 21 of the judge’s decision.
On the basis of the credited evidence, however, we agree that the real
reason for the timing of the February 3 discharge was not Cooper’s
alleged insubordination to Holden during the incident at the nurses’
station, but Respondent’s subsequent discovery of Cooper’s and
Becker’s efforts to initiate a union organizing campaign.
Member Brame disavows the judge’s speculation that because Hol-
den was unsuccessful in delegating the duty to discharge Cooper to
Schmidt, Cooper’s allegedly insubordinate behavior was not especially
important to Holden. See sec. III, par. 18 of the judge’s decision.
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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection.

WE WILL NOT discharge or otherwise discriminate
against any employee for supporting Teamsters Local No.
523, affiliated with International Brotherhood of Team-
sters, AFL–CIO or any other union.
WE WILL NOT coercively interrogate employees about
their union support or union activities.
WE WILL NOT threaten to discharge or discipline any
employee because of his or her union activity.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
WE WILL offer A. J. Cooper full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed and make
him whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him together
with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to Cooper’s unlawful
discharge, and within 3 days thereafter notify Cooper in
writing that this has been done and that the discharge will
not be used against him in any way.
SILVER LAKE CARE CENTER
Richard C. Auslander,Esq., for the General Counsel.
Steven A. Broussard, Esq. (Hall, Estill, Hardwick, Gable, Golden,
& Nelson), of Tulsa, Oklahoma, for the Respondent.
Joe Medearis, Business Agent (Teamsters Local No. 523), of
Tulsa, Oklahoma, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Tulsa, Oklahoma, on October 29, 1997.1 The original
charge was filed on February 5, by Teamsters Local No. 523,
affiliated with International Brotherhood of Teamsters, AFL–CIO
(the Union); it was later amended on July 25. The amended com-
plaint issued by the acting Regional Director for Region 17 on
July 31, asserts that Respondent, Silver Lake Care Center, has
1 All dates are 1997 unless otherwise noted.
331 NLRB No. 39
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
violated Section 8(a)(3) and (1) of the National Labor Relations
Act. Respondent denies the commission of any unfair labor prac-
tices.
Issues
The issues raised by the complaint are whether Respondent dis-
charged its employee A. J. Cooper on February 3 because he en-
gaged in union organizing activity. In addition, the complaint
accuses Respondent’s new director of nursing, Donna Staton, of
violating Section 8(a)(1) of the Act by interrogating and threaten-
ing an employee concerning her union activity.
I. JURISDICTION
Respondent admits it is a corporation that operates a long-term
care nursing home in Bartlesville, Oklahoma. It further admits
that its annual gross revenues exceed $100,000 and it annually
purchases and receives goods from outside Oklahoma valued in
excess of $5000.
Accordingly, it admits it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent’s sole shareholder is an individual named Phil
Green. In early February, the nursing home’s administrator was
Susan Holden; its director of nursing was Barbara Schmidt; and
the two assistant directors of nursing were Brandi Miller and
Elizabeth Lawrence. Due to a disagreement with Holden regard-
ing her management style, Schmidt resigned just as the union
organizing began. Within days, Holden also removed herself
from actively managing the facility. Before she left, however, she
discharged Cooper. About 3 weeks later Staton replaced Schmidt
as director of nursing.
Cooper had been employed at the facility for about 3 years. He
had begun as a certified nurse’s aide, becoming a restorative aide 2
in October 1996. He was discharged on February 3. He is a
young man, about 22 years old. For about a year he had been in a
romantic relationship with Gale Becker, a licensed practical nurse
(LPN) at the nursing home. She served as a charge nurse 3 days
per week. Becker is in her late 30’s, married, and the mother of
several children. Sometime during 1996 the two began cohabiting.
Their connection caused some business related changes and also
met with some moral disapproval.
The relationship required Respondent to arrange their work so
that Becker did not directly oversee Cooper’s work. He was as-
signed to corridors other than those over which Becker was in
charge. In October 1996 when he became a restorative aide, he
was given an office away from the nurses’ station3 to reduce the
opportunities to socialize with her.

2 A restorative aide assists patients in regaining lost physical capa-
bilities, such as feeding oneself, walking, etc. The appropriate therapy
is given pursuant to a physician’s order.
3 A one-story building, the facility is designed so that the nurses’ sta-
tion is in the center of a round room from which five spokes radiate.
Each spoke is a corridor. Business offices are located between the
corridors and face the nurses’ station that can be seen through interior
windows.
Becker and Cooper Contact the Union
There is evidence that Holden’s administration of the nursing
home was in some disarray. She admits she did not have the re-
spect of the staff and that she was undergoing some personal prob-
lems that affected her abilities to give proper oversight to the
home. Her performance had drawn some criticism from her sub-
ordinates, including some anonymous letters written to, owner,
Phil Green, approximately 2 weeks before the organizing began in
late January.
On Wednesday, January 29,4 from her office Holden observed
Cooper at the nurses’ station speaking to Becker, the charge nurse
for some of the corridors. Holden, rightly or wrongly, concluded
that Cooper was wasting time and was improperly socializing with
Becker. There is evidence, however, that Cooper was speaking to
Becker on a legitimate patient therapy question. (It may also be
true that earlier that shift, Cooper had been unnecessarily convers-
ing with Becker.)
Holden decided to put a stop to what she perceived as Cooper’s
repeated transgressions and left her office to talk to him. There is
little dispute about what happened. For the purpose of this discus-
sion I shall quote her testimony:

A. It was in the afternoon. I just—when I spoke to A. J.,
I recall Gale [Becker] being present.
Q. Anyone else?
A. No. I know there were residents around in the area
because they are always sitting around the nurses station, but
I don’t recall actual names, faces, who was there.
Q. And who started the conversation?
A. I walked—I did.
Q. Well, tell me what happened.
A. I walked up to A. J. and told him that if he wasn’t
Gale’s personal assistant that I would like for him to leave
the nurses station.
Q. What was his response?
A. “She’s my supervisor” or something to that effect.
Q. Did he say anything else?
A. The next sentence was, “We’re talking about work.”
Q. And what did you respond to that?
A. I said, “You’ve been standing, you know, you’ve
been standing here too long. You need to get back to work.”
He motioned his head backwards. Do I need to talk to
somebody else? Which would have been Barbara Schmidt’s
office was directly behind him like this and indicating that I
did not have the authority to even discuss anything with him.
Q. Well, now wait a minute. Did he say you didn’t have
any authority?
A. Indicating I did not have—
Q. Well, that—that was in your mind, right? He only
made a statement and that’s what you indicated. Is that cor-
rect?
A. If that’s the way you want to put it.
Q. Okay. So, tell me again what he said.
A. From the beginning?
Q. After you told him that he shouldn’t be standing
there, and he said—well, after he said we’re talking about
work, what did he say?
4 All of the witnesses except Holden testified the incident occurred
on January 29. She eventually accepted that date, although, initially
she thought it was January 30. For our purposes it makes no difference.
It was one or the other.
SILVER LAKE CARE CENTER 287
A. After he said “we’re talking about work,” I said
“You need to get away from the nurses station and do your
—do your work.”
Q. Okay.
A. She’s—he said, “She’s my supervisor.” And I said
“I’m your supervisor.” And then he motioned, do I need
to go talk to someone else, indicating the person—
Q. All right. Don’t—
A. Okay.
Q. Okay. He said—”Okay.” And after he said, “do I
need to talk to someone else,” what was the next thing that
was said?
A. I told him he could talk to whoever he wanted to,
that I was his supervisor.
Q. Did you use the word ‘supervisor’ or the word
‘boss’?
A. I’m really not sure.
Q. You could have used the word ‘boss’?
A. Could have.
Q. Both times when mentioned yourself as a supervi-
sor, you could have used the word?
A. Could have.
Q. Is that correct?
A. Could have.
Q. Okay. Now, the second time that you told him you
were his supervisor or boss, what happened then?
A. He indicated that he had someone else he could
talk to that could change my mind or.
BY MR. AUSLANDER: After the second time you
told Mr. Cooper that [you] were his supervisor or his boss,
what did he reply if anything?
A. Do I need to talk to someone else?
Q. Okay. And did you respond to that?
A. Yes.
Q. What did you respond?
A. You can talk to whoever you want to.
Q. Okay. And what was the next thing that was said
or done after that?
A. I either said I am your boss or I am your supervi-
sor.
Q. And then you left?
A. Yes.
Q. What did Mr. Cooper do at that time?
A. He remained at the nurses station.

Holden says she determined at that point that he had
been insubordinate and deserved to be discharged. Yet the
discharge did not occur until the following Monday, Feb-
ruary 3, about 2:45 p.m.
Cooper says that during the previous week he had discussed
obtaining union representation with about 25 of the employees
at the Care Center.5 During the day, on Friday, January 30,

5 Cooper’s testimony:
Q. Now, prior to this date that you talked to Mr. Medearis, did you
talk to other employees about the union?
A. Yes, I had.
Q. And when was that?
A. The week prior. The whole entire week prior, but mostly the day
before and the day before that. So, it would have been Tuesday and
Wednesday.
Q. And when did you—where did—when did you talk to them?
A. On my break outside or after work as we were walking out to our
cars.
Becker telephoned the Union’s office in Tulsa to find out how
one went about obtaining union representation. She spoke to
the Union’s business representative, Joe Medearis. Medearis
described the procedures, including the requirement that major-
ity status needed to be established. Afterward, she told Cooper
what she had done and he asked for Medearis’s telephone num-
ber. She gave it to him and on an afternoon break, Cooper, too,
called Medearis. [Eventually, a meeting was arranged for em-
ployees to meet with Medearis on February 10 at a Bartlesville
restaurant.]
After they had separately discussed the situation with
Medearis, Cooper and Becker decided they needed to assess
what the mood of the other employees was. They determined
the best way to do that was to place a nonbinding petition on
the breakroom table whereby employees who would be inter-
ested in union representation could sign and indicate their inter-
est. On Sunday evening while at home, Cooper and Becker
prepared a petition that apparently no longer exists. He de-
scribed it as consisting of several identical pages. According to
Cooper, it said something like: “This is a petition for organizing
a union. If you’re interested in a union, please sign below.
This petition is not binding.” Underneath, it had several lines
where employees could sign their names.
On Monday, February 3, about 5:45 a.m., he placed a clip-
board to which the pages were attached on the table in the
breakroom. He did not sign it initially, but observed that by
6:30 a.m. five or six people had signed it. He then signed it
himself. By 1:30 p.m. there were 12 to 15 signatures. As far as
he knows, the petition was still on the breakroom table when he
was fired at 2:45 p.m.
After being discharged he returned home and told Becker
(who had not been scheduled to work that day) that he had been
fired and that the petition had about 15 signatures on it when he
had last seen it. Becker went to work about 6:30 a.m. on Tues-
day, February 4, and immediately went to the breakroom to
look at the petition. She found it but the page with all the sig-
natures was missing. She is corroborated by carpet cleaner
Paul Fugate, who had earlier that morning led another em-
ployee to look at the petition, only to discover that the top sheet
had disappeared.
Becker says she was able to obtain some additional signa-
tures on the remaining sheets and even arranged for a night-
shift employee to take it with her when she went home. That
arrangement lasted for a few days, but eventually that sheet
disappeared as well. The whereabouts of those pages are now
unknown. Becker says there were about 18–20 names on that
sheet. Between the two pages approximately 35 individuals
signed to express interest in union representation.
Respondent’s Knowledge of Cooper and Becker’s
Union Activity
Becker had spoken to Medearis on January 30. On the follow-
ing day, she told Director of Nursing Barbara Schmidt that she
and Cooper had contacted the Union. That conversation occurred
in Schmidt’s office and Assistant Director of Nursing Brandi
Miller was present during the discussion. On Sunday, February 2,
Becker called the other assistant nursing director, Elizabeth Law-

Q. And approximately how many employees did you talk to?
A. Approximately 25, 20 to 25.
Q. And what, if anything, did they indicate to you?
A. They all seemed to be for a union. They seemed it might help.
(sic)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288
rence, and told her that she and Cooper had gone to the Union.
During that conversation Lawrence told her that Holden had al-
ready come out to the facility to speak to Schmidt and Lawrence
about it.
Lawrence, called by Respondent, does not really disagree, al-
though her recollection is a bit different. She says that on Satur-
day, February 1, an employee name Goldie Epps came to her
office upset that some employees were trying to organize a union.
Lawrence suggested that Epps report the matter to Holden. Epps
made such a call to Holden in Lawrence’s presence. Although
Epps did not testify, Lawrence says she did not hear Epps mention
either Becker or Cooper’s name while speaking to Holden. A
little while later, according to Lawrence, she telephoned Schmidt
at home and advised her of what Epps had said. Schmidt came to
the facility and after the two discussed the matter further, Schmidt
called Holden. Lawrence could hear Schmidt’s side of the con-
versation. Her description of the conversation is truncated, and
seems to emphasize the anonymous letters which owner Green
had received about Holden a week or so earlier. Even so, if the
conversation did turn in that direction, it also covered the union
organizing. Organizing was the reason Lawrence had called
Schmidt and it is why Schmidt had come in. Lawrence says she
heard Schmidt tell Lawrence that she “didn’t do this.” She says
the discussion then turned toward the issue of Holden not trusting
Schmidt any more, in part due to the anonymous letters, and she
heard Schmidt tell Holden that if that was the case she would
resign. Schmidt tendered her resignation on the phone, seeking to
give 2 weeks’ notice. Holden agrees she told Schmidt that 2
weeks’ notice wasn’t necessary, she could leave right then.
In general, Lawrence’s testimony demonstrates that Holden had
become aware of the union organizing as of Saturday. She does
not point specifically to Becker and Cooper as the organizers, but
neither does she deny that on Sunday Becker told her she and
Cooper were the responsible parties.
Holden Discharges Cooper
As observed above, on Monday, February 3, at 2:45 p.m., Hol-
den called Cooper to her office and discharged him. He had
placed the petition on the breakroom table that morning and was
one of the early signers. Moreover, by that time Lawrence had
become aware that he and Becker were the two individuals who
had gone to the Union.
Holden did tell Cooper that he was being discharged for insub-
ordination, specifically that which she had perceived the previous
Wednesday when he was at the nurses’ station. Her delayed re-
sponse raises the question of why she waited until the following
Monday to discipline him.
Holden explained that she had not discharged him earlier be-
cause she had initially wanted Schmidt to do it. When Schmidt
resigned on Saturday, she says the duty fell on her. She did not
say why one of the assistant directors of nursing couldn’t have
done it, although Lawrence has discharged employees in the past
and Brandi Miller certainly had the authority. Nor does she ex-
plain very well her reasons for not doing something about it on
Wednesday, Thursday, or Friday. She claims that Schmidt was
deliberately avoiding her so she could not be given the task. That
does not seem to be a credible reason. If Holden were truly angry
enough to have wanted to discharge Cooper over the incident, but
didn’t want to do it herself, she would have gone straight to
Schmidt, insisted on Schmidt seeing her and would have ordered
the discharge to be carried out.
Instead, matters were put off until Monday afternoon, the very
day when Cooper’s organizing manifested itself. Respondent
argues that Holden was never told who the responsible employees
were. I disagree. By then Lawrence at the very least knew of
Cooper’s and Becker’s activity and, it may be fairly inferred, Hol-
den did, too. After all, Lawrence had gotten Epps to report the
matter to Holden and had reported the matter to Schmidt as well.
When Becker told her on Sunday who the actual individuals were,
there is no reason to think that Lawrence would not have reported
that, too. The fact that there is no direct evidence that Holden
knew Cooper had placed the petition on the breakroom table is of
little significance. Of the two known union organizers, only Coo-
per was on duty that day. It would not take much thought for
Holden to have deduced that the union activist who was on duty
was the person responsible for the petition.
Finally, Respondent argues that discharge, according to the
company policy statement is the only available response to acts of
insubordination. First, I question whether Cooper had in fact been
insubordinate. I agree that he is young and perhaps could demon-
strate a more mature approach to his interpersonal relationships.
Even so, the more credible evidence is that he was at the nurses’
station for legitimate reasons. None of the nurses who attended
the incident has suggested otherwise. Holden’s directions to him
seemed arbitrary and unreasonable in the circumstances. None-
theless, he did not refuse her, but only asked to whom he should
speak if he couldn’t talk to Becker, the charge nurse for that pa-
tient. Holden took the question to be insubordinate, when it
clearly was not. She also perceived his delay in following her
instructions to leave the station to be insubordinate as well. The
latter might have been, but given the fact that she had essentially
told him that he was not to do his job, the confusion which that
directive caused is understandable. He knew she was his supervi-
sor, knew Becker was in charge of the patient, and knew that he
needed instructions. The administrator had told him he couldn’t
communicate with his immediate supervisor about the matter, so
that left him confused. His delay in leaving the station while he
tried to figure out what to do and whom he should see for instruc-
tions hardly qualifies as insubordination in the circumstances.
Moreover, the efficacy of the policy statement is not clear. It
has never been published to the employees, although Holden
thinks the bookkeeper gives it to new hires and says it is suppos-
edly available for review at the business office. Neither Becker
nor Cooper had seen it before the hearing. It is not in booklet
form intended to be easily handed out, but is instead a letter-sized
nine-page document which is kept in a loose-leaf binder some-
where. The discipline portion of the document is on the next to
last page and, given the handwritten entries made for each of the
possible infractions, appears to be subject to ad hoc adjustment.
That page appears more likely to be either an unfinished draft or a
model from which policies could be drafted, rather than firmly
adopted disciplinary policies. Whatever it may be, I am not con-
vinced that it was known by employees to be in effect at the time
Cooper was discharged. The document is not impressive as set-
ting forth behavior rules and the penalties for transgressions.
Moreover, that the only available penalty for insubordination is
discharge (as set by a handwritten X) seems close to absurd as
progressive disciplines are set forth for other violations. Clearly
there are different levels of insubordination that can be envisioned,
many of which would not warrant discharge. Usually employers
do not wish to rid themselves lightly of employees in whom they
have invested training and who otherwise have good records.
Lesser, but corrected, levels of insubordination allow that invest-
ment to bear fruit.
SILVER LAKE CARE CENTER 289
I find, based on the evidence, that the General Counsel has
made out a prima facie case that Respondent discharged Cooper
because he was known to be engaged in union organizing. The
precipitous nature of the discharge alone gives rise to strong sus-
picion, occurring within hours of his having placed the petition on
the breakroom table. But it is more than suspicion. Holden had
actual knowledge of union organizing as of Saturday when Epps
reported it. Moreover, Respondent must be charged with Law-
rence’s actual knowledge that Cooper was involved as of Sunday.
Third, animus may be inferred from the assigned reason, which I
find to be a pretext. Even if Cooper demonstrated some mild form
of insubordination on the preceding Wednesday, it did not become
a dischargable offense until he placed the petition on the break-
room table 5 days later. If he had been viewed as insubordinate
on Wednesday, disciplinary steps would have been taken much
sooner and they would have been much milder. More likely a
supervisor would have counseled him. Discharge was a heavy ax
to swing for the supposed offense.
Therefore, I conclude that Respondent has not rebutted the
prima facie case. Accordingly, I find that Respondent discharged
Cooper because he had begun to organize a union.6 The discharge
violated Section 8(a)(3) and (1) of the Act.
Staton Meets Becker
Donna Staton was hired as the director of nursing to replace the
departed Barbara Schmidt. She reported to work about February
20. It appears that she had been at the facility in that capacity for
at least a few days before she met Becker, probably due to the
staggered scheduling. Their first meeting, perhaps February 27,
was memorable for Becker. She testified:

BY MR. AUSLANDER: Okay. And you said that you
had a conversation with her (Staton) the first week after she
came there?
A. Yes.
Q. And where did that conversation occur?
A. She called me into her office.
Q. And who was present at that time?
A. Just myself and her.
Q. Tell us what was said at that time.
A. She told me that she knew more about me the first
week, and then she said let me rephrase that, the first hour
that I worked here than I ever would have cared to have
known. And I did not respond at that point, and she went on
to ask me what my involvement was with the union, what
my involvement was with A. J. [Cooper]. I told her initially
it was none of her business. And then I did later in the same
conversation tell her that yes, I was one of the first initial
people to contact a union representative. She then—she then
said to me she didn’t believe I was doing my job. She had
been hired to be, and this was her exact words, the axe per-
son to clean the place up and get it back on track, and she
was by god going to do that job.

Becker continued to work at Respondent until May 8, when she
resigned.

6 While it is true that Holden held Becker and Cooper in low esteem
because of their personal relationship, and Cooper’s somewhat imma-
ture approach to work did not sit well with her, these factors contrib-
uted to his discharge in only the most peripheral way. Their personal
relationship while at work was known to be manageable and Holden
herself countenanced a certain amount of immaturity, particularly her
use of toys such as squirt guns in the workplace.
Staton denies the conversation occurred. She says she never
had any conversation with Becker about the Union and asserts that
she did not learn there had been any union organizing until some-
time in April when another employee filed unfair labor practice
charges over her discharge.
Staton’s denial is straightforward and creates a credibility issue.
Both she and Becker agree that at some point she believed
Becker’s work performance could be improved. Becker charac-
terizes it as occurring in the same breath as the inquiry about un-
ion organizing, leading to the suggestion that it was a threat of
discharge for organizing. Staton recalls the incidents as relatively
minor counseling:

BY MR. BROUSSARD: Ms. Staton, when was the first
time you remember having a counseling session or discus-
sion with Ms. Becker?
A. The first time?
Q. Yes.
A. I really don’t remember the first time.
Q. Okay. A specific date?
A. I really don’t remember like a first counseling session
with Ms. Becker. There were some counseling sessions, yes,
but I don’t remember the date of a first one.
Q. Okay. What did those counseling sessions pertain to?
What did you talk to her about?
A. It would pertain to nursing practices or her work
practice.
Q. Okay. What kind of concerns do you remember hav-
ing about that?
A. My concerns about her was her talking, her not taking
care of residents, her conversations with employees that did
not pertain to the care of the residents there at Silver Lake,
gossiping on the job.
In terms of resolving their relative credibility, one fact strikes
me as rather odd. If Staton was being brought in to replace
Schmidt, how is it that she was entirely ignorant of any union
organizing? The original charge in this case was filed on February
5, only 2 days after the discharge and would have been under
investigation at the time she was hired. Surely, Owner Green
would have apprised her of the NLRB investigation involving
Cooper’s discharge that she might have to deal with as the new
director of nursing. And, he would have wanted to make certain
this newly hired supervisor would be prepared to handle the union
organizing issues which had recently come up [the February 10
meeting which was well published] and those which were likely to
follow. Her claim of ignorance cannot be credited. That being so,
I cannot credit her denial of Becker’s version of their first conver-
sation.
Becker said Staton asked her about her union organizing and
connected it to a threat that persons would be discharged if they
“weren’t doing their jobs.” The matters are too closely connected
to be ignored. It seems to me that it is reasonable to conclude that
Staton meant she would discharge union organizers using as justi-
fication a claim that they were not performing their work properly.
While no one can quarrel with the concept that employees who
are not performing properly are subject to losing their jobs, it is
another thing entirely to say that persons engaging in protected
activity will lose their jobs and that the real reason will be masked
by claiming a false reason. Indeed, that is a threat of serious di-
mensions. It is aimed at preventing employees from engaging in
any protected activity at all. The message is starkly clear: “If you
engage in union organizing, I will fire you and I will do it in such
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
an underhanded manner that you will not be able to obtain any
redress even if you are entitled to it.”
I credit Becker’s version and am obliged to conclude that both
remarks violated Section 8(a)(1) of the Act. The inquiry aimed at
determining if Becker had been engaging in union organizing had
no noncoercive purpose. The threat which followed is painfully
obvious.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent having discriminatorily dis-
charged Cooper, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987). The
affirmative action shall include the requirement that Respondent
expunge any record it may have of Cooper’s February 3 discharge
and shall require Respondent to post a notice to employees an-
nouncing the remedial steps it has undertaken.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(3) of the Act when it dis-
charged its employee A. J. Cooper on February 3, 1997, because
he was engaged in union organizing.
4. Respondent violated Section 8(a)(1) of the Act on or about
February 27, 1997, when its director of nursing, Donna Staton,
interrogated employee Gale Becker about her activities on behalf
of the Union.
5. Respondent violated Section 8(a)(1) of the Act on or about
February 27, 1997, when Staton threatened Becker with discharge
if she were to continue to engage in union organizing activity.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended 7
ORDER
The Respondent, Silver Lake Care Center, Bartlesville, Okla-
homa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Teamsters Local No. 523, affiliated with
International Brotherhood of Teamsters, AFL–CIO or any other
union.

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Coercively interrogating any employee about union support
or union activities.
(c) Threatening to discharge or discipline any employee be-
cause of his or her union activities.
(d) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days from the date of this Order, offer A. J. Coo-
per full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously enjoyed
and make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner
set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from its
files any reference to Cooper’s unlawful discharge, and within 3
days thereafter notify Cooper in writing that this has been done
and that the discharge will not be used against him in any way.
(c) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facil-
ity in Bartlesville, Oklahoma, copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed by the Respon-
dent’s authorized representative, shall be posted by Respondent
immediately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, Respondent has gone out of business or
closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respon-
dent at any time since February 3, 1997.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that the Re-
spondent has taken to comply.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”