Springfield Manor

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 17 (N.L.R.B. 1989)

SPRINGFIELD MANOR
HS Healthcare , Inc. d/b/a Springfield Manor and
United Food and Commercial Workers Interna-
tional Union , Local 831 , United Food and Com-
mercial Workers International Union, AFL-
CIO, CLC. Cases 33-CA-7811 and 33-CA-
7831
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 27, 1988, Administrative Law Judge
George F. McInerney issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a brief in support
of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions and to adopt the recommended
Order as modified.3
i 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.
In adopting the judge 's credibility findings, we do not rely on his com-
ments concerning the Respondent 's pursuit of a lawsuit against witnesses
Atkinson and Tapscott
2 The Respondent has filed a motion to amend pleadings to conform to
evidence to include the affirmative defense that discriminatee Virginia
Willhite is a supervisor within the meaning of Sec 2 (11) of the Act The
General Counsel has opposed the motion The Respondent 's motion is
denied . The Respondent failed to raise the issue of Willhite 's alleged su-
pervisory status in its answer to the complaint or at the hearing Further,
we find that even if we were to grant the Respondent 's motion, the Re-
spondent has not met its burden of establishing Willhite 's supervisory
status.
In finding that the Respondent violated Sec 8(a)(3) and ( 1) by dis-
charging employees Clements, Willhite , Lyons, Tinney, Green, and Bline,
the judge found that the reasons given by the Respondent for the dis-
charges were purely pretextual . Thus, he did not view the case as falling
within the purview of Wright Line, 251 NLRB 1083 (1980). Contrary to
the judge , the Board requires an application of the Wright Line analysis in
all cases alleging violations of Sec 8(a)(3) and ( 1) that turn on employer
motivation . Bridgeway Oldsmobile, 281 NLRB 1246 ( 1986), and cases cited
there . It is not necessary, however, to rerationalize the judge's finding
that the discharges were unlawful , as a finding of pretext "necessarily
means that the reasons advanced by the employer either did not exist or
were not in fact relied upon , thereby leaving intact the inference of
wrongful motive established by the General Counsel " Limestone Apparel
Corp., 255 NLRB 722 (1981).
a We shall modify the judge 's recommended Order to conform his re-
instatement and make -whole language to that customarily used by the
Board We also shall modify his Order to require the Respondent to
remove all references to the unlawful discharges from the discnminatees'
personnel records and supply the Board with pertinent backpay informa-
tion.
17
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, HS Health-
care, Inc. d/b/a Springfield Manor, Springfield, Il-
linois, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a)
and reletter the subsequent paragraphs.
"(a) Offer Virginia Willhite, Paula Clements,
Mary Lyons, Margaret Tinney, James Green, and
Pat Bline 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 other rights or privileges previ-
ously enjoyed 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 section of the decision."
2. Insert the following as paragraphs 2(b) and (c)
and reletter the subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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."
3. Substitute the attached notice for that of the
administrative law judge.
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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
295 NLRB No. 2
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promulgate or enforce any dis-
criminatory no-solicitation rules.
WE WILL NOT blacklist our employees by notify-
ing other employers that they have been terminat-
ed for activities on behalf of any labor organiza-
tion.
WE WILL NOT discharge or discipline any of our
employees because they engaged in, or we suspect-
ed them of engaging in, activities on behalf of any
labor organization.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of the rights guaranteed them under
Section 7 of the Act.
WE WILL offer to Virginia Willhite, Paula Cle-
ments , Mary Lyons , Margaret Tinney, James
Green, and Pat Bline immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
or privileges previously enjoyed , together with
backpay for any losses suffered by them as a result
of our discrimination against them.
WE WILL notify each of them that we have re-
moved from our files any reference to their dis-
charge and that the discharge will not be used
against them in any way.
HS HEALTHCARE , INC. D/B/A
SPRINGFIELD MANOR
Deborah A. Fisher, Esq., for the General Counsel.
Paul R. Cole, Esq. (Erwin, Marlinkus Cole & Ansel Ltd.),
of Champaign, Illinois, for the Respondent.
Jairus Gilden, Esq. (Karmel & Rosenfeld), of Chicago, Il-
linois, for the Charging Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge.
Based on charges filed in Case 33-CA -7811 on October
14, 1986 , by Local 1696, United Food and Commercial
Workers Union, and Case 33-CA-7831 on October 31,
1986 , by Local 881, United Food and Commercial Work-
ers International Union, AFL-CIO, CLC (the Union or
the Charging Party), the Regional Director for Region
33 of the National Labor Relations Board , the Board,
issued an Order consolidating Cases 33-CA-7811 and
33-CA-7831 , and a complaint, on November 28, 1986,
alleging that HS Healthcare , Inc., d/b/a Springfield
Manor (the Company or Respondent), had violated and
was continuing to violate, the provisions of the National
Labor Relations Act, 29 U .S.C. §§ 151 et seq . (the Act).
The complaint was subsequently amended , and the Re-
spondent filed a timely answer, denying the commission
of any unfair labor practices.
Pursuant to a notice of hearing contained in the com-
plaint, a hearing was held before me in Springfield, Illi-
nois, on April 27 through 30, and June 1 and 2, 1987, at
which all parties were represented by counsel , and had
the opportunity to present testimony and documentary
evidence, to examine and cross-examine witnesses, to
make motions, and to argue orally . Following the con-
clusion of the hearing, the General Counsel and the Re-
spondent filed briefs, which have been carefully consid-
ered.
On the entire record, including my observations of the
credibility of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, the answer admits, and I find
that the Respondent is an Illinois corporation having an
office and place of business in Springfield , Illinois, where
it is engaged in the business of providing intermediate
level longterm care for mostly elderly patients. During
the 12 months just prior to the issuance of the complaint,
the Respondent derived gross revenues of over $100,000.
In that same period the Respondent purchased and re-
ceived at its Springfield facility goods and materials
valued in excess of $15,000 directly from points outside
the State of Illinois . The Respondent is, and has been at
all times material an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Although the Respondent in its answer denied knowl-
edge of the legal status of the Charging Party as a labor
organization , the parties stipulated at the hearing, and I
find, that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Company and its Organization
The Company operates a longterm intermediate' nurs-
ing care facility known as Springfield Manor. Springfield
Manor is owned by a limited partnership known as
Healthcare Fund Limited, and is 1 of 12 nursing homes
managed by HS Healthcare, Inc., headquartered in
Savoy, Illinois . The president of HS Healthcare is Ray
Edward (Ed) Hettinger , who is also a general partner in
Healthcare Fund Limited . Margaret Patton is the admin-
istrator of Springfield Manor, and was such for a year
and a half before the hearing in this matter, including all
times material herein.
Administratively , Springfield Manor is divided into a
number of departments. The departments , together with
the names of the persons who headed them in the
summer and early fall of 1986 are:
nursing: Beth Miller , director of nursing ; Pam Pathael,
assistant director of nursing social work ; Loretta Mal-
doner, social worker admissions ; Sue Tapscott , admis-
sions coordinator food service ; Diane Jacobs, food serv-
ice superintendent activities; Dianna Volpo, activities di-
rector maintenance, housekeeping and laundry ; Bill At-
kinson , superintendent.
' "Intermediate" is a technical term denoting the level of care available
at the nursing home under regulations of the State of Illinois.
SPRINGFIELD MANOR 19
There was no question about supervisory status of the
director of nursing; the assistant director of nursing and
the superintendent of maintenance. There was an issue
here over the supervisory or managerial status of Sue
Tapscott, the admissions coordinator during all times ma-
terial herein.2 There were no questions about, and no
evidence concerning, the status of the social worker, the
activities director, or the food service superintendent.
The department heads apparently served as a kind of
advisory committee to the administrator during 1986,
meeting weekly or more often to discuss problems con-
cerning the staff, and how department heads were "relat-
ing" to those problems. Unlike other employees, depart-
ment heads were salaried, wore civilian clothes as a
rule,3 and received free meals in the nursing home dining
rooms. They were not paid overtime, nor granted com-
pensatory time when they were required to work over
40 hours in a week.
In addition to these factors, which she shared with
other department heads, Sue Tapscott, as admissions co-
ordinator, evaluated prospective patients and, if she de-
termined that their health, mobility, and other medical
characteristics were consistent with the ability of Spring-
field Manor to care for them, set the rates they would
pay,4 and arranged for their admission. She, along with
Margaret Patton, received a bonus for bringing new pa-
tients into the nursing home.
While Tapscott was described by Patton as having no
supervisory authority over any employees, the evidence
is undisputed, based on the testimony of Tapscott herself,
Bill Atkinson, and Patton that Tapscott participated in
management 's investigation into the conduct of Mary
Lyons, Paula Clements, Margaret Tinney, James Green,
and Patrick Bline , and that she participated or assisted in
the preparation of warnings and discharge notices for
Lyons, Clements, Tinney, Green, and Bline . Tapscott
also had authority to pledge the credit of the Company
at a local store and could charge gasoline to the Compa-
ny's account.
At this point, based on these factors and leaving aside
any consideration of Tapscott's close personal relation-
ship with Patton and the ostensible authority which em-
ployees perceived as one aspect of that relationship, I
find that Tapscott in fact was aligned with management
and worked to formulate and effectuate management
policies by expressing and making operative the decisions
of the Employer. NLRB v. Bell Aerospace, 416 U.S. 267
(1974); Sutter Community Hospitals of Sacramento, 227
NLRB 181, 193 (1976); General Dynamics Corp., 213
NLRB 851, 857, 858 (1974); Swift & Co., 115 NLRB 752,
753 (1956).
2 Tapscott, a licensed practical nurse , had been assistant director of
nursing until January 1986 , when she was appointed to the admissions co-
ordinator position.
0 The director and assistant director of nursing wore lab coats over ci-
vilian clothes while on duty . All employees other than department heads
wore some kind of uniform
* Within limits prescribed by management , Tapscott herself assisted in
a revision of those rates in the spring or summer of 1986 under the direc-
tion of Ed Hettinger . While her participation may not have been the con-
trolling factor in setting new rates , I find that she was an active partici-
pant in the management group which did make those decisions.
B. The Union Organization and the Company's
Response
On the early morning of June 18, 1986, some union
representatives engaged in handbilling of employees at
the entrance to the Company's premises. 5 Beyond this,
the only union activities engaged in by employees seem
to have involved some distribution of union authorization
cards by a laundry employee named Mary Lyons on
June 28; the passing of an authorization card from one
laundry employee, Paula Clements, to another, Margaret
Tinney, sometime around June 19; some prounion re-
marks made by housekeepers James Green and Patrick
Bline at company meetings called to discuss the Union,
and a solitary union meeting in June attended by only
two employees, Mary Lyons, with her son Rex Lyons,
who worked in housekeeping and laundry at that time.6
Paula Clements did testify that she talked to other em-
ployees about the Union and I can assume that the Union
handbilling was a common subject of conversation
among employees.
On the morning the handbilling took place, Virginia
Willhite, a licensed practical nurse (LPN) in charge of
nursing on the second floor of Springfield Manor, called
Administrator Margaret Patton to inform her of the ac-
tivity. Patton came in to the facility and called a depart-
ment head meeting. Management was uncertain about
the reason for the Union's interest in the employees of
the nursing home and this meeting was taken up with
speculation about these reasons, and discussions on set-
ting up meetings with the employees to counteract the
Union's organizational attempts. Several exhibits placed
in evidence by the General Counsel show that various
managerial officials such as Bill Atkinson and Diane
Jacobs, food service supervisor, 7 spoke at the employee
meetings and talked generally about management's "open
door," employee evaluations, merit raises, and other
broad, noncoercive matters. There are no allegations in
the complaint that statements made at any of these meet-
ings violated the law.8
Later, on June 19, a high-level delegation from the
Company's home office in Savoy, Illinois, including
President Ed Hettinger, Personnel Director Lisa Daven-
port, and an outside labor relations consultant named
Russell Cloud came to Springfield Manor and briefed the
department heads on what they could or could not say,
and what they should and should not do in this situation.
There is no evidence that any of these managers directed
or suggested that the department heads do or say any-
thing which has been alleged, or could be construed, to
be unlawful.
According to Patton, she continued to hold depart-
ment head meetings twice a week after the Union ap-
° Those distributing the handbills were identified only as persons con-
nected with the Charging Party herein.
° Rex later became a supervisor and testified as a witness for the Com-
pany.
T I note that an exhibit purporting to be an agenda for a meeting of
food service employees was signed by Jacobs, and also by Sue Tapscott.
° There was some testimony that Bill Atkinson uttered statements that
could be interpreted as threatening , but Atkinson himself, called as a wit-
ness by the General Counsel, was not asked about these instances.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
peared at Springfield Manor . She expressed surprise that
this situation had come about , asked her department
heads to check with employees in their department to
determine what was "wrong" there, and to talk to the
staff people in those departments . Patton stated that she
did not require department heads to report union activi-
ties, but she did expect that she would learn from the de-
partment heads who was talking about the Union, or was
active on its behalf.
In addition to these supervisors ' meetings , and employ-
ee meetings called by management , the record here indi-
cates only that a letter was sent to employees over Mar-
garet Patton's signature on June 19 urging that they not
sign union cards or join the Union.
It would seem from the above undisputed facts that
there was very little union activity generated by what-
ever organizing efforts had been made by the Union or
by employees on its behalf . Moreover, the Company's re-
sponse, from Russ Cloud's admonitions to supervisors to,
in effect, do good and avoid evil, to the innocuous con-
tent of the June 19 letter and the agendas purportedly
used at the several employee meetings held in mid-June
certainly show the Company's concern with the Union,
but do not indicate that the Company was embarking on
a militant antiunion campaign.
The testimony of Sue Tapscott and Bill Atkinson was
generally in agreement with that of Patton as to the ini-
tial meetings on June 19. However, Tapscott and Atkin-
son described other meetings between Patton and other
management employees which conveyed a quite different
message . Tapscott testified that all of the department
heads were present and that Patton named certain em-
ployees whom she felt were strong union people , Virgin-
ia Willhite , Don Richmond , James Green , Pat Bline, and
people in the laundry , Paula Clements , and Mary Lyons.
Patton said that she wanted those people out of there.
Atkinson also testified about meetings at which only
he and Tapscott were present with Patton, but he repeat-
ed substantially similar statements 'by Patton , where she
named Willhite , Richmond, Clements, Lyons, Green, and
Bline, and indicated that she wanted them out of Spring-
field Manor . Indeed , Atkinson mentioned one meeting
where Patton called him in, apparently alone, and direct-
ed him to fire Lyons, Clements, and a woman named
Phyllis Brame . According to Atkinson , Patton told him
that these employees were "part of the Union, worked
for the union , or started the union and they wanted them
out of the facility."
Patton denied that any of these conversations had
taken place or that she had ordered Atkinson to dis-
charge any employees.
On June 27 Paula Clements and Virginia Willhite were
discharged . On June 28 Mary Lyons was discharged. On
June 30 Margaret Tinney was discharged and Juanita
Schroeder was given an oral warning . On July 12 James
Green and Patrick Bline were discharged.
C. The Discharges
1. Virginia Willhite
Virginia Willhite is a licensed practical nurse (LPN)
with some years of experience. She had been employed
at another nursing home in Springfield called Dirksen
House from April 1983 to May 1985, at which time she
was discharged for involvement in union activities as a
supervisor .9 She had some difficulty in obtaining new
employment but was hired by Springfield Manor on No-
vember 12, 1985 . On February 24, 1986, she was as-
signed as head nurse, second floor , first shift . During the
time Willhite worked on the second floor there were ap-
proximately 86 patients in residence there . These were
"intermediate" care patients . All were ambulatory, or at
least not permanently confined to bed , but 80 percent of
these were confused , incontinent and in Willhite's word
"combative." They had to be lifted, changed, bathed,
dressed , undressed , fed, and otherwise completely cared
for. Willhite, as head nurse, was responsible under the di-
rector of nursing and assistant director of nursing for all
nursing care of these patients , for charting progress or
lack of progress, treating illnesses, injuries , and medical
conditions . She was responsible for assigning nurses'
aides to rooms and patients on a daily basis.' o
Willhite was formally rated twice during her employ-
ment at Springfield Manor, once on March 11, 1986, by
V. Atkins, director of nursing , in which she was graded
as "above average" and was praised by the director; and
on May 23 , 1986, by B. Wagner, R.N., director of nurs-
ing, where she was rated "satisfactory" or "more than
satisfactory" in all categories and was unqualifiedly
praised by the director . After each of these ratings Will-
hite was given a raise, bringing her from $6.40 per hour
as of February 23 to $6.75 as of May 19 . Willhite was
given a warning by B. Wagner, director of nursing, on
May 8 for failing to make out a medication card or an
order for medication by a physician. Willhite testified
that she had never received any warnings , written or
oral, other than the one on May 8, and was never repri-
manded , counseled, or spoken by any supervisor about
her dress, mannerisms , or other personal characteristics,
or about conditions on the second floor of Springfield
Manor.
In late May or early June, Barb Wagner, the director
of nursing , left and was succeeded by Beth Miller . Miller
had worked with Willhite at Dirksen House, and was
aware of the reasons for Willhite 's discharge from the
latter location.
When the handbilling of Springfield Manor began on
June 18,11 Willhite called Margaret Patton at her home
° There did not seem to be an issue about the fact that Willhite was a
supervisor at Dirksen House and was not a supervisor at Springfield
Manor. In this case, however, Respondent has raised the issue for the
first time in its brief, alleging that Willhite was in fact a supervisor at
Springfield Manor. This matter was neither raised as an issue in Respond-
ent's answer, nor in the course of 6 days of hearing in the case The ques-
tion of Willhite's alleged supervisory status was not litigated at the hear-
ing. She was asked no questions , nor was there any testimony or docu-
mentary evidence from other witnesses on the subject I find , therefore,
that the issue has not been timely raised and it will not be considered
Willhite was a rank -and-file employee.
10 There is no indication in the record that these assignments were
anything other than routine in nature.
I 1 There is no evidence here that Willhite had anything to do with the
Union's interest in organizing Springfield Manor She seems to have been
as surprised as management was by the June 18 handbilling
SPRINGFIELD MANOR 21
to advise her what was going on. Willhite told Patton
she had lost her job at Dirksen House because of the
Union, that she did not want to lose her job at Spring-
field Manor . She was upset and told Patton that she had
nothing to do with the Union.
On June 27 Patton had a meeting with Sue Tapscott,
Beth Miller, director of nursing , and Pam Patheal , assist-
ant director of nursing . According to Patton those
present at this meeting discussed a variety of problems
with and shortcomings in Willhite's work. Tapscott, on
the other hand , testified that Patton merely informed the
others that she wanted Willhite off the premises over the
long July 4 weekend . She did not want Willhite in there
"passing out union stuff." Beth Miller and Pam Patheal
then went upstairs to draw up the papers for Willhite's
discharge.
They prepared a document charging Willhite with
willful acts detrimental to patient care through failure to
do daily rounds or examination of patients ; leaving pa-
tients in the wrong wheel chairs ; allowing the develop-
ment of numerous new cases of bed sores; leaving haz-
ardous chemicals exposed; not ensuring that patient data
sheets were properly filled out; failure to discipline staff
members following complaints to department heads; not
disciplining aides; complaining or discussing problems
with others in the presence of aides, and what were de-
scribed as "insubordinate acts or statements or failure to
carry out orders ; use of vulgar language at nurses' sta-
tion desk ; and wearing inappropriate dress such as T-
shirts and tight clothing. Miller and Patheal gave the
document to Patton, who called Willhite into her office
and discharged her on the spot.
While some of these charges appear almost inconse-
quential, the first few items , neglect of patients , failure to
do daily rounds or examinations , failure to keep proper
charts; allowing the development of numerous new cases
of bed sores, and leaving hazardous chemicals exposed,
are serious matters that could certainly form the basis for
disciplinary action . Willhite emphatically denied all of
these charges . Patton was not personally familiar with
most of the charges against Willhite . She did testify that
she made rounds with Willhite , and had "counseled" her
many times in her office before determining on the dis-
charge . On other occasions in her testimony, Patton,
who otherwise impressed me as an extremely knowl-
edgeable and competent witness, tended to be vague and
imprecise . On the question of complaints from the fami-
lies of patients Patton at first spoke of a number of such
complaints , then narrowed it to one family, then could
not recall the details, or even whether Willhite was re-
sponsible for a stroke suffered by the patient whose
family allegedly complained . 12 It is clear from Patton's
testimony either that she either relied almost entirely on
reports of Willhite's work given her by Beth Miller and
Pam Patheal , or that she herself ordered the discharge,
as stated by Sue Tapscott , and then left to Miller and
12 One family member of another patient testified about lack of dunk-
ing water and other problems on the second floor of Springfield Manor,
but this testimony really did not place any responsibility on Willhite. The
problems alleged to be Willhite 's responsibility occurred at times when
Willhite was not working , and were described as continuing until early in
1987 , long after Willhite 's discharge
Pathael the job of finding reasons to justify this predeter-
mined action . I do not ordinarily draw negative infer-
ences from the fact that individual witnesses do not testi-
fy in a particular matter . There are many reasons why a
witness may not, or will not, testify . In this case , howev-
er, I must note that the absence of Miller and Patheal, as
the supervisors who knew Willhite's work best , leaves
Respondent 's case lacking the only effective corrobora-
tion available to Patton 's testimony and leaves her vague
and hesitant recollections alone against the clear denial
by Willhite of the charges against her.13
As a kind of postscript to the Willhite discharge, Taps-
cott testified that after Willhite was fired, Patton told
Tapscott , Patheal , and Miller to call other nursing homes
in the area and tell people there that Willhite was a
union organizer and that she had been terminated from
Springfield Manor for that reason . Tapscott stated that,
pursuant to these instructions , she called the Lewis Me-
morial Nursing Home in Springfield , talked to the ad-
ministrator , and told him what Patton had told her to
say. She recalled that the administrator 's first name was
Robert, and that she had met him with Patton when they
first came to Springfield in the fall of 1985.
Robert Florence, administrator of Lewis Memorial
Christian Village, testified that he recalled Tapscott's
name and that he knew of Willhite 's activities at Dirksen
House . He did not recall receiving a call about Willhite
from Springfield Manor. I note that he did not deny that
he received such a call, and I also note, again, that
Miller and Patheal did not testify in this proceeding.
2. Mary Lyons
Mary Lyons was hired by Springfield Manor on June
7, 1983, in the laundry. She was terminated on June 28,
1986, by Bill Atkinson and Sue Tapscott for violating
company rules. She was reinstated in late July, but was
terminated again at a later date for reasons unconnected
with our concerns here . So far as the record discloses,
the warning and discharge notice given Mary Lyons on
June 28 remain in her file at Springfield Manor.
Bill Atkinson testified that he and Sue Tapscott were
at their apartment on Saturday , June 28, when they re-
ceived a call from Springfield Manor. They went to the
nursing home and apparently talked to two employees
named Maria Baggerly and Terry Scorsolini, who told
Atkinson and Tapscott that Mary Lyons was passing out
13 An LPN named Dorothy Champion , who was working at Spring-
fied Manor at the time Willhite was discharged and was still there at the
time of the hearing, testified that the atmosphere on the second floor
when Willhite was there was "chaotic ," and described people there was
arguing and not getting along . This may very well be , but these were not
the reasons that Willhite was discharged . I cannot find this corroborative
of Patton's testimony . Similarly , Jane Wright, the corporate director of
professional services , testified that she conducted an inspection of the
nursing services at Springfield Manor on June 26. She noted quite a
number of deficiencies on the second floor during the time Willhite was
actually on duty. However, Wright admitted that she did not see Patton
that day. Further , she did not recall speaking to anyone at Springfield
Manor on June 26 about her inspection She returned to corporate head-
quarters at Savoy, and her report , issued under date of June 30, could not
have reached Patton before the decision to discharge Willhite on June 27.
Patton never indicated that she had talked to Wright , or used this report
in making up her mind to discharge Willhite.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union cards . After this Tapscott made a number of calls
to Patton and Ed Hettinger . Tapscott testified that Het-
tinger directed her to get out the Company's employee
handbook , and told her what sections to use in writing
up a warning for Mary Lyons. Tapscott stated that ev-
erything on the warning prepared for Lyons was written
at Hettinger 's direction.
After writing up their warning, Tapscott and Atkinson
called Lyons into an office and discharged her. Lyons
admitted passing out cards , but denied that she had co-
erced or harassed people . Rather, according to both At-
kinson and Tapscott , Lyons stated that she only gave
cards to people who asked for them. Lyons did not testi-
fy here, nor did Baggerly and Scorsolini , the employees
who blew the whistle on Lyons. Most significantly, Ed
Hettinger , who allegedly dictated the warning and or-
dered the discharge did not testify . Hettinger was
present in the hearing room during the entire hearing.
The testimony of Atkinson and Tapscott thus stands un-
denied on this issue.
3. Clements and Tinney
Paula Lee Clements was hired on July 11, 1984, as a
laundry aide and worked either on the day shift from
6:30 a.m. to 3 p.m. or the afternoon shift from 2:30 to 11
p.m. until she was discharged on June 27, 1986. Margaret
Tinney began work as a laundry aide on October 17,
1985, and she was terminated on June 30, 1986.
The laundry at Springfield Manor is self-contained in
its own two room area, separate and apart from patient
care areas . There is a door from the laundry to a main
corridor which is kept closed and locked except when
employees are passing in or out . The day shift handles
primarily linens, towels , sheets, bedclothes , and other in-
stitutional work, and the afternoon shift does patients'
personal clothing . There are generally two but some-
times three employees working on each shift . The evi-
dence shows that it was customary for both employees,
when there were only two on a shift , to take their lunch
together . Clements testified that they always shut down
the laundry machinery and locked the laundry rooms
before leaving.14
Clements also testified that she stopped and took a
leaflet from the union handbillers on June 18, and further
stated that she obtained union authorization cards from
Mary Lyons on June 24 , that she had signed one card
herself and gave another one to Tinney, and that she had
talked about the Union with other employees in the days
before her discharge.
Margaret Patton testified that Bill Atkinson had come
to her sometime early in June 1986 and told her he was
having production problems in the laundry . Patton
vaguely recalled Atkinson as saying that "different things
were going on in the laundry." Without further amplifi-
cation, Patton testified that she directed Atkinson to hold
a meeting with the staff to "tell them what he expected
of them, what he wanted them to do."
14 Margaret Patton stated that some machinery had been damaged in
the past because it was left unattended , but she did not indicate that any
present employees had been responsible for that . Tinney did not testify.
A meeting was conducted by Atkinson on June 9 at-
tended by all the employees under his supervision in the
laundry, housekeeping , and maintenance departments.
An agenda of 10 items was prepared by Atkinson and
discussed with the employees . Item 6 on the list read
"Laundry overtime, no lunch or breaks to be taken to-
gether leaving laundry unattended."
On June 27, Patton testified that her secretary noted
from timecards that Clements and Tinney had taken their
lunch together on June 26, leaving the laundry unattend-
ed while they were gone. Patton then notified Atkinson
of this . There is some discrepancy here since Atkinson
testified that he first noticed the timecards and that he, in
turn , notified Patton . In any event , Atkinson called Taps-
cott in to write up warning sheets to discharge Clements
and Tinney . The theory for these terminations was that
the employees had been given a direct order at the June
9 meeting not to take breaks together . This violation of
an order constituted a "critical offense" against the Com-
pany's rules and warranted summary discharge . Clements
was fired on June 27 . She protested that she had not left
the machinery running in the laundry, although she ad-
mitted that she and Tinney had taken their lunchbreak
together. Further, Clements maintained that she had
been told by Tom Casper, a former supervisor, that laun-
dry workers could take lunchbreaks together as long as
everything was turned off. Clements stated that this
policy had never changed and that she was never told by
anyone that employees could not take their breaks to-
gether. 15
Bill Atkinson testified that Margaret Patton had told
him that Ed Hettinger had instructed her that Atkinson
was to discharge Mary Lyons , Paula Clements, and
Phyllis Brame .16 According to Atkinson, Patton also
told him that they were going to fire Virginia Willhite
and Don Richmond,' 7 for the reason that they were part
of the Union, or had started the Union, and they wanted
them out of the facility . Pursuant to these instructions,
on June 27, Atkinson noted timecards showing that Cle-
ments and Tinney had taken a lunch hour together on
June 26 . He brought this information to Patton 's atten-
tion , and told her that they had an excuse for firing Cle-
ments. Patton asked whether they could document this
and Atkinson replied that he could document it through
a June 9 in-service meeting . He told Patton he could add
a paragraph or two to the agenda for that meeting to
show that he had informed employees not to take breaks
together. Patten said "Fine, do it ." Atkinson then added
a sentence to item six on the June 9 agenda . Sue Taps-
cott testified that she actually watched on June 27 while
Atkinson added the words on not taking breaks together
to the June 9 agenda.
Tapscott further testified that Patton told her that Cle-
ments was fired because she was suspected of involve-
15 The sign-in sheet for the June 9 meeting shows that Clements was
present at that meeting.
16 Phyllis Brame was not discharged in this late June period . She was
still working in September 1986, when she was given several warnings.
17 Richmond was warned on June 10 , but continued to work until June
21, when he resigned to avoid being fired for additional offenses There is
no indication that Richmond 's situation came about as a result of Patton's
remarks to Atkinson
SPRINGFIELD MANOR 23
ment in the Union , and that Tinney was discharged be-
cause they fired Clements and they had to fire Tinney to
make it look as if they fired them both for legitimate dis-
ciplinary reasons . According to Tapscott, Patton said
they did not want to fire Tinney, but they had to in
these circumstances.
So far as can be determined from this record , no other
employee was discharged for taking a break with an-
other . There was a warning notice given another laundry
employee named Juanita Schroeder , but it appeared that
she had received permission to take a break with another
employee at a time when the machines in the laundry
were broken down.
4. James Green and Pat Bline
James H. Green was employed at Springfield Manor
on March 16, 1986, and was fired on June 12, of that
year. Patrick A. Bline worked from April until June 12,
1986. They were both housekeeping aides, their primary
duties were in cleaning of the premises with some addi-
tional responsibility for assisting patients in and out of
dining areas . In connection with their housekeeping
duties, Green and Bline were supplied with carts which
held supplies and utensils they used in their work.
Among the supplies were cleaning solutions containing
dangerous and even poisonous chemicals . As Margaret
Patton testified , management was concerned lest these
chemicals be left exposed where ill or confused patients
could obtain and swallow them . Several months before
July 1986, the Company had obtained new carts which
had locked compartments where hazardous materials
could be secured.
There was a rule that these housekeeping carts should
not be left unattended. According to testimony of Paula
Clements, as well as Green and Bline they frequently
were left unattended. Green did testify that he was told
about this rule by Bill Atkinson when he was first hired.
He stated that he always took all liquids and cleaning so-
lutions off the top and secured them in the locked com-
partment on the cart.
Both Green and Bline had received recent favorable
evaluations and pay raises as of mid-July . They were
considered good employees according to their own testi-
mony . Neither had been prominent in advocating the
Union, although they had talked favorably about the
Union to each other . According to Bline, at least one of
these conversations could have been overheard by Bill
Atkinson.
On July 12, according to Rex Lyons, who was Atkin-
son's assistant at that time, and at the time of this hear-
ing, was himself the supervisor of the housekeeping de-
partment, testified that Atkinson told him to check up on
Green and Bline . Lyons did so and found, as he reported
to Atkinson at the time, dirt and trash in rooms which
they had been directed to clean. Lyons also found that
they had taken an extra 15 minutes at lunch that day. At-
kinson went into Patton's office and wrote up "some
papers." Lyons brought Green and Bline to the office
and Atkinson fired them. Lyons stated that Atkinson had
never asked him to check on any other employees.
Atkinson himself testified that he had been instructed
by Margaret Patton to "get rid of anyone he felt was
supporting the Union . He suspected Green and Bline be-
cause of their attitude during meetings he had held with
employees to discuss the Union . He noted their "looks
and expressions" when something was brought up re-
garding the Union , and he had heard rumors that they
were for the Union.
Atkinson did not testify that he sent Lyons to check
on Green and Bline , but he did say that on July 12 it was
"brought to his attention" that housekeeping carts were
left unattended on the second floor and that Green and
Bline were nowhere to be found. Atkinson went up to
the second floor and found Green in the dining room,
but could not locate Bline at all . He returned to the
office and called Sue Tapscott . She then came to the
nursing home and called Patton at her home, telling her
that they had an excuse to fire Green and Bline . Patton
said to go ahead and fire them . It was not clear from the
testimony of Tapscott and Atkinson that Patton personal-
ly and directly ordered the firing of Green and Bline on
July 12 because they were suspected of harboring union
sympathies . It is clear, however, that Atkinson testified
that he initiated the discharges because he felt that Green
and Bline were union supporters , and he believed that
Patton approved of the discharges . Atkinson stated that
there were no hazardous materials on the carts that day;
that he could not say whether the carts were locked or
not; that it was impossible for housekeepers to keep the
carts in their sight at all times while they were cleaning
rooms or bathrooms ; that on many occasions employees
took extended breaks or left carts unattended; and no
one had been disciplined for these lapses.
D. Credibility Findings
1. Background
Margaret Patton and Sue Tapscott were longtime per-
sonal friends . They had attended school together and
worked together at a nursing home in Champaign, Illi-
nois . When Patton was appointed administrator of the
Springfield Manor Nursing Home in November 1985 she
brought Tapscott with her as assistant director of nurs-
ing. Tapscott was divorced and Patton was married, but
when they came to Springfield , they rented an apartment
together to use during the week while maintaining their
own places in the Champaign area, to which they re-
turned on weekends . They socialized together and at-
tended a health club together . From all appearances they
were close friends.
This did not go unremarked by the employees of
Springfield Manor . Virginia Willhite, an LPN, testified
not only that Tapscott was one of those whom Willhite
was required to call if she had problems or grievances,
but Willhite observed also that you did not give Tapscott
any trouble because "she was Margaret Patton's best
friend and you just didn't do that because you would get
in trouble." t 8
1s I did not consider this testimony in my determination of Tapscott's
managerial status, above The testimony is credible , but I feel that basing
a finding of managerial or supervisory status on such a personal relation-
ship would require additional , more specific , corroboration
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In January 1986, Tapscott was transferred to a new
position as admissions coordinator , where she remained
until September of that year . As I have noted above,
Tapscott remained a member of the management group,
participating in supervisory meetings , participating in the
formulation of policy, and the implementation of man-
agement decisions . In her testimony Tapscott also de-
scribed herself as the assistant administrator of Spring-
field Manor. This claim was disputed by Jane Wright, di-
rector of professional services for the parent Company,
HS Healthcare . Wright testified that HS Healthcare had
no positions of assistant administrator in any of its nurs-
ing homes, and that establishment of such a position
would require changes in the Company's policy manual,
and approval of the central office in Savoy, Illinois, nei-
ther of which was done . Wright was certain that Ed
Hettinger had never approved the establishment of such
a position and that Sue Tapscott had never been given
the job or functions of an assistant administrator. I have
no doubt that Wright correctly described the policy of
HS Healthcare in regard to the position of assistant ad-
ministrator, but there is a letter which was introduced in
evidence here from the files of Springfield Manor, dated
August 21, 1986, signed by Margaret Patton and ad-
dressed to a Mr . Campbell , described as being with the
Illinois State Department of Health . This letter purports
to notify Campbell that Susan E . Tapscott took the posi-
tion of assistant administrator , as well as admissions coor-
dinator, of Springfield Manor as of January 3, 1986.
Tapscott testified that there was another document in the
files of Springfield Manor showing a table of organiza-
tion with herself as assistant administrator placed below
Patton and above the director of nursing in the chain of
command . Patton and Wright denied that any such docu-
ment existed , and it was not presented at this hearing.
In their responses to questions on this letter, Patton
and Tapscott agreed substantially , stating that the letter
was prepared and signed to give Tapscott ostensible au-
thority in order to fulfill state requirements to qualify as
a nursing home administrator . As Tapscott stated, she
needed 2 years as an assistant administrator in lieu of an
associate degree from a college to be eligible to take the
test to be an administrator . Patton admitted that she
signed the letter to help Tapscott out, to give her experi-
ence needed to qualify for an administrator 's position
without a degree . Tapscott further testified that she was
actually the second in command at Springfield Manor,
filling in for Patton when the latter was absent. There
was no independent corroboration of this claim by Taps-
cott, but the testimony of Virginia Willhite, which I
have quoted above, shows that Tapscott 's personal rela-
tionship with Patton conveyed to employees an ostensi-
ble authority which, whatever title Tapscott may or may
not have had, could influence employees ' status and their
working conditions.
the time, but there is no indication that Patton 's feelings
resulted in any change in her cordial relations with Taps-
cott. Atkinson and Tapscott were still together as of the
time of this hearing.
It goes without saying that the personal relationships
between people are ordinarily of no concern to the Na-
tional Labor Relations Board . In this case , however, the
relations between the three people, and particularly the
rupture in the relationships between Atkinson , Tapscott,
and Patton , are critical to a resolution of the issues pre-
sented here.
3. The chairs
On May 10, shortly after Atkinson and Tapscott had
moved in together to a new apartment on May 3, they,
together with Margaret Patton and her husband , Frank,
were in an Ace Hardware store on Wabash Avenue in
Springfield to buy some supplies for a car wash fundrais-
er for Springfield Manor . Tapscott spotted some kitchen
chairs which were on sale and mentioned to Patton that
she would like to have them for the apartment but that
she could not afford them. Patton replied that Tapscott
should talk to the store about holding them for her. Ac-
cording to Tapscott , Patton also said she could put the
chairs on layaway in the name of Springfield Manor.
There was no documentary evidence or testimony
about this transaction , but there is no dispute that the
chairs were held by Ace Hardware for about a month.
On June 10 Patton came to the apartment where Taps-
cott and Atkinson were living.' 9 While Patton was
there, Tapscott decided to go with Atkinson to pick up
the chairs . Patton suggested that they use her car, which
was roomier than theirs . Tapscott and Atkinson then
went to the Ace Hardware store. Atkinson told Tapscott
that he would pay for the chairs . He added that he
would take the chair with the price tag and wait in the
line at the cash register , and that she should, in the
meantime, carry the other three chairs out to Patton's
car. Tapscott did as she was told , even though it was a
rainy evening . Instead of paying for the chairs, however,
Atkinson charged them to the account of Springfield
Manor, under authority he had to charge at that store.
Tapscott made out a check that same night20 for the
cost of the chairs, $187.34, and gave it to Atkinson. He,
in turn, testified that he knew she did not have the
money at that time, so he put the check away without
telling her and never cashed it. He explained that he did
not tell her this because he felt she would be upset. As
far as payment was concerned, Atkinson testified that it
was his intention , when he received the bill from Ace
Hardware at Springfield Manor, to pay it himself rather
than making out a purchase order and forwarding it for
payment by the Company.
2. Tapscott and Atkinson
In the spring of 1986 Tapscott and Atkinson entered
into a personal relationship . In May they moved into a
new apartment together and became engaged to be mar-
ried. Tapscott testified that Patton objected to her be-
coming so involved with Atkinson, who was married at
19 As I have noted , Patton's disapproval of Tapscott 's relationship with
Atkinson was apparently not serious enough to cause a break between
the two women.
20 It is not clear whether Tapscott gave Atkinson the check in the car
on the way back to the apartment , or after they had returned . There was
no indication in the testimony that Patton knew or approved of the way
the chairs were paid for.
SPRINGFIELD MANOR 25
Unfortunately, for Atkinson and, as it turned out, for
Tapscott as well, he was forced to resign on July 15. He
thus was never able to intercept the bill from Ace Hard-
ware, setting up a chain of events which led to the dis-
charge of Tapscott on September 8 and to bitterness and
recrimination between Tapscott and Patton.
4. Atkinson's resignation
Atkinson resigned his job as director of environmental
services on July 15, 1986. According to Atkinson, he
was called into Patton's office that day to meet with Ken
Floriant, the parent company's property manager from
the headquarters office. Floriant asked for Atkinson's
resignation , telling him that he had discharged employees
improperly and that it was in the best interests of the
Company that he resign . Atkinson later had a conversa-
tion with Ed Hettinger , also in Patton 's office, in which
Atkinson asked Hettinger why he was being terminated.
Hettinger said that it was up to Patton and Floriant, but
that Atkinson had allegedly discharged people and had
not followed procedures . Atkinson replied that Hettinger
himself had told him to get rid of those people . Hettinger
said he knew that but it was a mistake . Atkinson then re-
signed.
Patton testified that Atkinson ran an inefficient, chaot-
ic department. According to her version of this issue, At-
kinson did not secure the proper number of references
for new hires ; moved people around eccentrically and
without reason ; put evaluations in files without her re-
quired approval; kept records badly if at all; handled
purchases in such a way that no one knew what was
being purchased , why, and for how much ; that he had
improperly charged items such as an alarm clock , a cord-
less drill , and louvered blinds ; in short , ran a totally dis-
organized operation . On July 3, Patton said , she called
Ken Floriant to help Atkinson set up a schedule to
handle his paper work . Later, she stated , Atkinson
walked out on her when she tried to talk to him, and
thereafter refused to follow orders she gave him and
others . On July 15 she called Floriant again and, when
he had talked to Atkinson , the latter resigned.21
In this instance , as in others noted above, I found Pat-
ton's testimony to be vague , imprecise, and conclusion-
ary. There is no documentation for her charges against
Atkinson , no notes to him , no memoranda to the file, no
records of telephone calls to headquarters, no records of
the conferences on July 3 or July 15, or the discharge
papers Patton says she had prepared . 22 The two people
who actually engineered Atkinson 's resignation, Floriant
and Hettinger, did not testify at all, and no reason was
offered for their failure to do so. As I have observed,
Hettinger was present in the hearing room during the
entire hearing.
As an unpleasant sequel to Atkinson 's resignation, both
Tapscott and Atkinson testified that Patton attempted to
21 Patton stated that she had a discharge notice for Atkinson all pre-
pared on that day, but that document was never offered or received in
this hearing
22 The only documentary records of Atkinson 's employment were
three written evaluations all prepared by Patton and dated 12/3/85,
1/6/86, and 2/5/86. These were laudatory , and showed Patton's total sat-
isfaction with an outstanding employee
influence Atkinson 's testimony to an agent of the Board
investigating a case arising out of the union campaign at
Springfield Manor23 Atkinson also named Hettinger as
having tried to influence his testimony by hinting at a re-
instatement, or assignment to another job with the parent
company.
According to Tapscott, who continued to work at
Springfield Manor, despite the awkwardness of her con-
tinuing relationship with Atkinson after his resignation,
she talked with Patton a number of times about charges
against the Company involving Mary Lyons, Green, and
Bline . Patton told Tapscott that the Company wanted
Bill Atkinson to testify on their behalf . She said it would
look "very good" if he so testified and added that they
had not filled his job yet and that he might get that job
back, or get a corporate position by showing the Compa-
ny that he was for the Company.
Tapscott also testified that she and Atkinson went to
dinner at Patton 's house with Patton and her husband
Frank Patton. At this meeting, Tapscott quoted Patton as
telling Atkinson that he was made a scapegoat because
of the Union and that if he would testify for the Compa-
ny, after he had been asked to resign, it would look good
for him . She said she would put in a good word for him
with Hettinger , and he might get his old job back, or get
a corporate job.
Atkinson corroborated this testimony, and added that
he also talked to Hettinger in Tapscott 's office some time
after he had given an affidavit to the Board . Atkinson
said to Hettinger that he hoped Hettinger appreciated
what he had done for him . Hettinger said he would talk
to Patton and Floriant. Later, Atkinson had a conversa-
tion at Springfield Manor with Floriant. They talked
about Atkinson's old job or a job at corporate headquar-
ters, but Atkinson never heard anything further from the
Company.
On August 12, 1986, Atkinson gave an affidavit to a
Board agent in Springfield in which he swore that he
had discharged Clements and Tinney because they were
insubordinate and did not follow orders . He also swore
that he had discharged Mary Lyons because she was so-
liciting for the Union on company time.
Patton denied that she had ever solicited Atkinson to
testify on behalf of the Company. She stated that Taps-
cott and Atkinson came to a retirement party for her
husband Frank on August 1. Atkinson told her that a
"man from Peoria" wanted him to testify and had of-
fered him money . Patton told him if he had any ques-
tions about this to talk to Floriant or Hettinger, but that
he would never work with her again after what had hap-
pened.
5. Tapscott's discharge
In the days immediately following Atkinson 's forced
resignation Tapscott was understandably upset . Curious-
ly, however, there was no testimony either from Patton
or Tapscott herself that they discussed the resignation or
the reasons for it. Helen Weakley, who had been medical
records secretary at Springfield Manor in July 1986 and
23 Case 33 -CA-7663, dated July 7, 1986.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Therese Martin, Patton 's secretary at that time , both tes-
tified that Tapscott was agitated and, on July 16, was
seen searching through a bundle of purchase orders and
invoices on Martin's desk.24 Tapscott said to both of
these people that she would see HS Healthcare "go
straight down the tubes ." There was no explanation of
what Tapscott meant by this, nor was there any testimo-
ny that she continued to be upset , or made further com-
ments like that.
Whatever resentment Tapscott may have harbored
toward Springfield Manor apparently dissipated, or at
least was not apparent in the relations between Tapscott
and Margaret Patton . Tapscott continued to work for
and to socialize with Patton . I have already described
the preparation and execution in August of the document
purporting to appoint Tapscott as assistant administrator
of Springfield Manor.
On September 4, Jane Wright, the corporate director
of professional services, apparently came across the in-
voice for the kitchen chairs which had been purchased
on June 10 by Atkinson on the Springfield Manor ac-
count. Wright notified Patton, and she asked Tapscott
how she paid for them. Tapscott replied that she had
written a check to Bill Atkinson for the purchase price
of the chairs. Patton then informed Tapscott that the
chairs in fact had been charged to Springfield Manor and
directed her to go home , find the canceled check, and
bring it back. Tapscott went home and looked through
her canceled checks and could not find the one she had
made out to Atkinson on the night of June 10. After an-
other conversation with Patton, Tapscott called Atkinson
and finally found out that he had charged the chairs to
Springfield Manor and had not cashed her check. He
said that he had planned to pay for the chairs when the
bill came in , but in the meantime, of course , he had been
forced to resign.
At that time, Tapscott and Atkinson were in the proc-
ess of moving . They looked through their belongings
over the weekend of September 6 and 7 but could not
locate the check. On September 8, Tapscott called
Patton and told her she could not find the check . Patton
told her to come in and they would talk about it. Taps-
cott then went in and had a talk with Patton which de-
veloped into what Tapscott described as a "heated argu-
ment" primarily over Tapscott 's insistence that Patton
had given she and Atkinson permission to charge the
chairs, then pay the bill when it came in , and Hettinger
would never know about it. The argument ended when
Patton gave Tapscott some documents to sign which she
refused to do, and with Tapscott offering to have the
price of the chairs deducted from her last paycheck if
they would bring no criminal charges against she and
24 Tapscott testified that Martin had asked her to go over these papers,
but she was not able to say what the reason was or what she was looking
for. A suspicion naturally arises that she may have been looking for the
invoice from Ace Hardware for the chairs . However , there was no indi-
cation that Tapscott or Atkinson made any additional efforts to find the
invoice, or to approach Ace Hardware to intercept any invoice which
had not yet been received at Springfield Manor . Moreover, there was no
effort made by anyone to find out what Tapscott may have been looking
for among the invoices I do not , in these circumstances , view this as a
significant incident.
Atkinson, which offer was refused. Tapscott then col-
lected her personal items and left the facility.
Patton denied that she had ever told Tapscott that
Springfield Manor would pay for the chairs. She also tes-
tified that she heard that the chairs had not been paid for
from Wright, but from another employee named Ron
Smith who had told Frank Patton who in turn told his
wife, Margaret . It was only then that she, Margaret
Patton, notified Wright about the chairs . Smith was
never called to testify and Wright did not discuss this
issue in her testimony.
The check which Tapscott said was given by her to
Bill Atkinson was produced during an employment com-
pensation hearing, and a copy was entered into evidence
at this hearing . I had the opportunity to examine the
original and noted that it was creased as if it had been
folded but otherwise did not look as if it had been car-
ried around in anyone 's picket for any period of time.
The check bears a printed number which is consistent
with the series of other checks written by Tapscott in
June 1986.
6. Conclusions
a. The credibility issue
The issue of credibility in this case came down to a
critical evaluation and analysis of the testimony of Mar-
garet Patton on one side, and Tapscott and Atkinson on
the other . The relationships between these three people
has been set out at some length because their personal re-
lationships necessarily affected their actions toward each
other and could well be said to have affected their testi-
mony in this case as well.
Beginning with Tapscott's taking the job with Spring-
field Manor and moving from Champaign to Springfield,
her relationship with Margaret Patton influenced her po-
sition at the nursing home and her actions on the job.
She moved to Springfield and shared quarters with
Patton while they made arrangements to move perma-
nently . She was first made assistant director of nursing,
and then admissions coordinator , a position which in a
more structured table of organization might be described
as an administrative assistant , or confidential assistant, to
the administrator . I do not believe that there is anything
particularly unusual about this situation, where two man-
agement employees are personal friends and share busi-
ness as well as personal confidences.
The first strains on this relationship apparently oc-
curred when Tapscott moved in with Atkinson. Accord-
ing to Tapscott, Patton disapproved of her friendship
with Atkinson on the grounds that he was still married
at the time, but Patton's objections were not so serious as
to prevent she and her husband , Frank, from seeing
Tapscott and Atkinson socially. Nor, but for perhaps a
momentary flash of resentment on Tapscott 's part, did
Atkinson 's forced resignation terminate the friendship be-
tween Tapscott and Patton. There was only one social
contact between the two couples after Atkinson left
Springfield Manor, but Tapscott continued to work, and
as late as August 23 Patton signed the document naming
SPRINGFIELD MANOR 27
Tapscott as assistant administrator .25 The final split be-
tween Patton and Tapscott happened in the September 4
to 8 incident involving the kitchen chairs, Tapscott's re-
sponsibility, and Atkinson 's action in charging the cost of
the chairs to Springfield Manor.
All this background needs to be taken into consider-
ation in evaluating the credibility of Tapscott and Atkin-
son, upon which so much of the ultimate resolution of
the issues here rests . I must consider the inherent prob-
abilities of the actions of the parties and the impact upon
the parties of the forced resignation of Atkinson, the dis-
charge of Tapscott, and the pressure of the Company's
lawsuit against them over the chairs ; whatever documen-
tary evidence there is on any of these matters; and my
impression of the demeanor of the witnesses who testi-
fied in these issues.
b. The chairs
At the outset , it seems to me fairly clear that Patton
somehow approved the use of the Company 's name on
May 11, when Tapscott selected the chairs and put them
in what the parties called "lay-away" status . The chairs
then were set aside at no cost to the Company, or to
Tapscott and Atkinson . Beyond this, there is no real evi-
dence that Patton authorized further use of the company
name or credit in the subsequent purchase. In her testi-
mony describing her final interviews with Patton, Taps-
cott seemed to say that she accused Patton of authoriz-
ing payment by the Company, but in her direct testimo-
ny about the events of June 10, when she and Atkinson
went to pick up the chairs , she said only that Patton had
furnished them the use of her car for the errand. Atkin-
son mentioned nothing about Patton 's authorizing pay-
ment, and his testimony seems clearly to show that he
charged the chairs to Springfield Manor's account on his
own initiative , and I can infer consistently with his prac-
tice on other occasions.
It seems to me, moreover , that if Patton had in fact au-
thorized the purchase on the Springfield Manor account,
she would have taken steps to intercept the invoice from
Ace Hardware , and make sure that it was paid before it
was discovered by corporate headquarters, causing prob-
lems for Patton herself, as well as for Tapscott and At-
kinson . Thus I find, based primarily upon the logic and
inherent probabilities of the situation , that Patton was
not aware until September that the chairs were charged
to the nursing home.
Logic and probability, together with what scant docu-
mentation there is, also impels me to conclude that Taps-
cott was unaware at least up to the time of Atkinson's
resignation that the chairs had not been paid for. The
check #242 was in a sequence of other checks written in
June 1986 . Tapscott was candid , it seemed to me, in con-
fessing that she never adjusted the balance in her ac-
count to her bank statement , and thus never noticed that
check #242 had not been cashed. I think Tapscott's ac-
tions in going through invoices on the day after Atkin-
son's resignation could be indicative of her desire to find
the Ace Hardware invoice for the chairs, but the fact
that she did not pursue the matter further , even though
25 See sec . III,D,1, above.
her relations with Patton continued to be cordial and
mutually helpful , would indicate that her motives in-
volved something else.
Atkinson 's testimony on his reasons for paying for the
chairs on the Springfield Manor account , and his reluc-
tance to let Tapscott know what he had done is also log-
ical in view of her previously expressed concern about
her ability to pay for the chairs, and Atkinson's consider-
ation for his new fiance 's financial condition . The fact
that the check could not be found on September 4, when
Patton demanded that it be produced, may also logically
be explained by the fact that Tapscott and Atkinson had
moved recently and things were in a state of confusion at
their new home. Almost anyone who has moved has ex-
perienced the same sort of problems in locating even es-
sential items.
The last stage of this incident , the small claims action
by the Company against Tapscott and Atkinson for the
cost of the chairs, shows a residue of bitterness and acri-
mony between the Company and its two former employ-
ees. The Company's tendentiousness in pressing this
small claim, $187 . 34, against both Atkinson and Tapscott,
in a situation where each had offered to pay, shows a
vindictive attitude , designed to punish these people. At-
kinson, in fact, had offered to pay what was due just
before a scheduled trial, conditioning his offer only on
the removal of Tapscott as a party defendant, on the
grounds that she did not purchase the chairs. This was
refused by the Company and, so far as revealed by the
testimony here, the cost of the chairs has not yet been
paid to the Company.
This attitude on the part of the management of Spring-
field Manor, discharging or forcing the resignation of
these employees and pressing a lawsuit against them to
the point where Tapscott alleged she was forced to file
for bankruptcy, could well produce in Tapscott and At-
kinson feelings of retaliation and revenge . I cannot find
in the record any overt manifestations of that, except for
a couple of statements allegedly made by Tapscott in
July, but as I have noted , she continued to work cordial-
ly with Patton for almost 2 months thereafter, blunting
any effect these statements , even if made, on Tapscott's
further relations with the Company.
Insofar as credibility is involved in this incident, I find
the testimony of Tapscott and Atkinson consistent, logi-
cal, and inherently probable . Patton, too, testified logi-
cally and in a manner consistent with other testimony in
this area . All of these people had reasons to influence
their testimony , but in the absence of any manifestations
of bias or prejudice, I must proceed to evaluate the spe-
cific situation, using the criteria outlined above.
c. Atkinson's resignation
The only witnesses to Atkinson 's forced resignation
were Atkinson himself and Ken Floriant . Margaret
Patton was also involved to the extent that she described
continuing problems with Atkinson , leading to her deci-
sion to fire him. However, Atkinson testified that Flor-
iant gave him an ultimatum , to resign or be fired because
he had erred in discharging employees. Floriant did not
deny this. He did not testify. Nor did Hettinger deny a
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conversation reported by Atkinson to the effect that the
latter was just carrying out orders . Hettinger 's reply, ac-
cording to Atkinson , was that this was correct, but it
was just too bad.
With respect to Patton 's testimony , it is not supported
by the three evaluations she herself gave Atkinson in late
1985 and early 1986 ; and further not corroborated by
any negative evaluations , written warnings, or repri-
mands, or by a document which Patton said she had pre-
pared for Atkinson 's discharge . Nothing was produced.
Finally, according to Patton , Rex Lyons was involved
in Atkinson 's alleged final insubordinate actions. Lyons
testified for the Company , but was asked no questions
about these incidents , and thus did not corroborate Pat-
ton's testimony.
Either Patton 's version of this incident , or Atkinson,
could satisfy the requirements of logic and inherent prob-
ability . Each version could have happened. Atkinson's
story is reinforced by his evaluations , but Patton's ver-
sion suffers from a total lack of corroboration . I find that
Atkinson 's version is correct.
d. Tapscott's discharge
There has been enough discussion of the kitchen chairs
in this decision up to now, so nothing further is required
on that issue . There is nothing further which is disputed
in the last interviews between Patton and Tapscott, and
this incident presents no credibility problems.
e. Willhite 's discharge
In Willhite 's situation I am faced with a conflict be-
tween the testimony of Margaret Patton and Sue Taps-
cott on the reasons for Willhite 's dismissal . Tapscott was
clear in her allegation that Patton summoned the director
of nursing , Beth Miller, the assistant director of nursing,
Pam Patheal , and Tapscott to a meeting where she in-
formed them that she wanted Willhite off the premises
immediately . Patton was not clear in her description of
Willhite's shortcomings , but the import of her testimony
was unmistakable, that Willhite was not a competent su-
pervisor, or even , as Patton stated , a good nurse.
Again, the Company has produced no corroboration
for Patton 's testimony either through testimony26 or
documentary evidence . 27 Beyond the testimony of Will-
hite himself, which appeared credible, the documentary
evidence brought in by the General Counsel shows that
the Company considered Willhite a better than average
employee in the course of two evaluations , the second a
little over a month before her discharge. The language in
the June 27 warning strains belief when compared with
the May 23 evaluation . As in Atkinson 's case, Patton
talked about warnings and "counselling" but at one point
claimed that she herself had counseled Willhite about
problems with her work , and at another point stated that
26 Neither Miller nor Pathael testified and, while they were no longer
employed by Springfield Manor , there was no showing that either was
unavailable to testify here As I noted, I did not find the testimony of
Dorothy Champion really germane to the discharge.
27 While I have Wright 's June 30 report noting some deficiencies in
nursing care in Willhite 's area, there is no evidence that this report fur-
nished any basis for Patton's decision.
Miller had handled the task . Patton , usually so sure of
herself and unequivocal in her testimony showed herself
confused and vague in this situation . For these reasons, I
must credit Tapscott 's testimony that the real reason for
Willhite's discharge was her prior union activity at Dirk-
sen House , and Patton's fear that she would renew these
activities at Springfield Manor, particularly over a long
holiday weekend when Patton herself would be away.
f. Lyons' discharge
There is no question of credibility in the discharge of
Mary Lyons. Tapscott and Atkinson, both of whom, as I
have found , were agents of the Company, heard a report
that Mary Lyons was passing out union cards at the
nursing home . They rushed down there and after engag-
ing in several telephone conversations with Patton and
Hettinger wrote up a discharge notice and fired Lyons.
In so doing, Tapscott and Atkinson practically para-
phrased the entire "critical" offense section of Respond-
ent's employee handbook . But, as Tapscott and Atkinson
testified at this hearing, Lyons said she only gave cards
to those who asked for them . The Company itself recog-
nized that there was a problem with this discharge, and
Lyons was reinstated sometime later . She was again dis-
charged , but no further charges were filed on her ac-
count.
g. Clements ' and Tinney 's discharges
As I have already noted, Patton testified , somewhat
vaguely, about a meeting with Atkinson to discuss pro-
ductivity problems in the laundry . She mentioned that
she had told Atkinson to have a meeting with laundry
employees , and to tell them what was expected of them.
According to Patton, Atkinson talked to her about the
meeting with the employees and told her what he had
told the people at the meeting . Sometime later Patton
was told by her secretary that timecards showed that
Clements and Tinney had taken a lunchbreak together.
Patton called these two employees in to her office,
where they admitted that they had taken their lunch-
break together and had left the machinery running in the
laundry room . Patton also asked Clements and Tinney if
they had been told they were not to take lunchbreaks to-
gether and they said that they had been so instructed.
Patton then discharged Clements and Tinney for dis-
obeying the direct order allegedly given them at the
June 9 meeting to discontinue taking lunchbreaks togeth-
er for the laundry.
Atkinson told quite a different story . He did not talk
about a productivity meeting with Patton, but rather
mentioned Patton's expressed desire to get rid of Cle-
ments because of suspected union activities. Then, on
June 27, he noted in routinely going over timecards that
Clements and Tinney had taken their lunchbreak togeth-
er on June 26. He called Tapscott and asked her to write
up warnings and discharge notices for Clements and
Tinney. According to both Atkinson and Tapscott, he
had held a meeting with all of his department employees
on June 9 . He prepared a written agenda for that meet-
ing, including as item 6 a warning that there would be
no overtime in the laundry. Both Atkinson and Tapscott
SPRINGFIELD MANOR
stated that when he saw the Clements and Tinney time-
cards on June 27 he felt that he could fire them. He then
took his agenda for the June 9 meeting and , in Tapscott's
presence , added to item 6 the words "No lunch or
breaks to be taken together leaving laundry unattend-
ed."28 Atkinson informed Patton that he had an excuse
to fire Clements . Patton asked if they could document it
and he replied that he could add a paragraph or two to
the agenda for the June 9 meeting . She said , "fine, do
it." Atkinson then added the sentence quoted above,
adding in his testimony that he had never told the em-
ployees this at the meeting.
On June 27 Atkinson said that he met with Patton and
Clements in Patton's office . Patton read the discharge
notice to Clements and she denied that she was the only
one who took breaks with others. Clements, in her testi-
mony, affirmed this, also saying that she told Patton and
Atkinson that she and Tinney shut off the laundry ma-
chines before they left. She also denied that she had ever
heard a direct order to stop taking breaks together.
Tinney was called in on June 30 and discharged. She
did not testify but both Atkinson and Tapscott testified
that Patton had told them that the Company had to fire
Tinney in order to justify the firing of Clements.
The documentary evidence on this issue , timecards for
various employees , show that joint lunchbreaks were not
common, but there were several examples of employees
taking breaks together both before and after Clements
and Tinney were discharged.
In this instance Patton 's testimony again stands alone
against those of Atkinson and Tapscott , with additional
brief testimony by Clements on her discharge interview.
Patton 's secretary , who allegedly discovered the critical
timecards, did not testify to corroborate Patton's version
of that part of the incident . I find that the incident oc-
curred as described by Atkinson, Tapscott, and Cle-
ments.
h. Green 's and Bline 's discharges
There is no dispute that Green and Bline had left their
housekeeping carts unattended on July 12, and that they
had overstayed their lunch hours on that day. It is also
undenied that Rex Lyons was instructed to check on
them; that he did check on them and found that they had
left their carts and extended their lunchbreaks ; and that
leaving housekeeping carts unattended with dangerous or
poisonous chemicals exposed presents a serious danger to
patients . However, as Lyons testified, he had never
before been sent to check on any other employees. At-
kinson stated that he wanted an excuse to fire them. The
real reason for their discharge was that Atkinson suspect-
ed that they had been involved in union activity, or at
least were sympathetic to the Union . Atkinson also
added that he could not say whether the two employees'
carts were locked that day; that there were no hazardous
materials on the carts; and that it was impossible for
28 Since the original of this document has disappeared , I cannot really
tell if these words were inserted at a different time than when the origi-
nal was prepared . Rex Lyons, who testified for the Company, was not
asked about that meeting.
29
housekeepers to do their work and to keep their carts in
sight at all times.
Patton was not involved directly and did not testify on
this issue, but she did generally deny that she had or-
dered or sanctioned any discharges for actual or suspect-
ed union activity . I found Atkinson 's testimony credible
on this issue , and. I note again the absence of any con-
trary testimony.
i. Concluding findings on credibility
With respect to the factors of logic and probability on
my evaluation of the credibility of Margaret Patton, Sue
Tapscott, and Bill Atkinson, I think that all three wit-
nesses related versions of the facts to this case which
were logical and inherently probable . In no instance was
their testimony improbable , illogical , unlikely, or funda-
mentally incredible . I could make findings based upon
the testimony of these three alone which would support
the positions either of the General Counsel and the
Union on the one side, or the Respondent on the other.
Even when I consider the comparative treatment of
the six discharged employees , I do not find matters heav-
ily weighed on one side or the other . In Willhite 's case,
for example , I think there were errors and shortcomings
in her handling of the day shift on the second floor at
Springfield Manor . In Mary Lyons' case, she may have
left her work station and may have attempted to force
union cards upon unwilling coworkers . In the cases of
Clements and Tinney, if they had been ordered not to
leave the laundry with machines running, and they did
so, maybe they should have been fired, notwithstanding
the fact that others had done so and were not. And if
Green and Bline had left their housekeeping carts unat-
tended with dangerous chemicals exposed while they
idled away 15 minutes beyond their lunch hour, they
should , likewise, have been fired. I think there are in all
these cases questions of interpretation and circumstance,
were it not for the testimony of Tapscott and Atkinson
which throws a common mantle of antiunion motivation
around all of these incidents . Looking at the questions of
testamentary or documentary corroboration , it appears to
me that the weight of the evidence here, and it is not
really heavy, comes down on the side of Tapscott and
Atkinson . On the issue of the chairs , Tapscott's bank
statement, showing a gap in check numbers at the time
the chairs were purchased , and the check itself tend to
reinforce Tapscott's version of her actions at that time.
In respect to the Willhite discharge , the uniformly
positive evaluations would tend to corroborate Taps-
cott's testimony that the discharge was pretextual. I fur-
ther note in Willhite's case, as well as those of the other
discharged employees , the use by Respondent of a shot-
gun approach to these disciplinary actions, taking whole
sections out of the employee manual and alleging viola-
tions by the employees of a number of sections. This
contrasts noticeably with discharges and warnings given
to other employees , in exhibits introduced by the Gener-
al Counsel, where specific actions are sharpely pinpoint-
ed as reasons for discharge or other discipline.
This is particularly true in the case of Mary Lyons,
where the warning notice and discharge reflect the testi-
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mony of Tapscott and Atkinson that they hunted
through the handbook to find reasons for Lyons' dis-
charge.
In the Tinney and Clements situation Atkinson 's testi-
mony was corroborated by that of Paula Clements re-
garding the discharge interview , and in the case of
Green and Bline, Atkinson was corroborated by Rex
Lyons.
Patton 's testimony , as I have found , was not corrobo-
rated by testimony or by documents . Even where Patton
alleged she had documentation , as in the case of Atkin-
son's forced resignation , she did not produce it. Nor did
she produce any documentation on Willhite 's shortcom-
ings, or on any other of the six discharges . The most
critical factor in weighing Patton 's testimony , apart from
questions of demeanor , is the total lack of corroboration
by Ed Hettinger , Ken Floriant , Beth Miller, and Pam
Pathael , for Patton 's accounts of the actions involving
Willhite, Atkinson, Tapscott, and Lyons.
Turning finally to demeanor , I closely observed all the
witnesses when they were testifying . I found Patton in
most instances to be a real executive , firm and sure of
herself. However, in critical spots such as the decision to
discharge Willhite, the discovery of the timecards of Cle-
ments and Tinney, the instructions to Atkinson to meet
with the laundry employees , the decision to terminate
Lyons, and on her participation in the layaway of the
kitchen chairs, I found her to be vague , imprecise and
evasive, forgetting or misremembering facts which she
should have had immediately at hand . Tapscott, on the
other hand, did impress me as straightforward and
candid . Atkinson was more guarded . He was quite vague
about the reasons for his termination , but no one, either
on direct or cross-examination , pressed him , so I accept
his version of the incident . Otherwise , I found Atkinson
to be a solid and credible witness.
Accordingly, I accept the version of events described
by Atkinson and Tapscott based on their demeanor as I
observed them testifying at this hearing ; on the logic and
consistency of their stories ; and on the fact that where
others testified about the same events , or documents
were introduced concerning the people involved that tes-
timony, with the exception , of course , of Patton's, and
these documents tended to corroborate their testimony.
j. Concluding findings on the unfair labor practices
(1) The no-solicitation rule
There is no question here that the Company promul-
gated a new no-solicitation rule on August 1, 1986,
which provides that employees are prohibited from dis-
tributing literature on the nursing home property. The
evidence showed that this rule was primarily honored in
the breach, and that employees regularly solicited for
Avon products , art work , home decorating items, and
the like . Since there was no indication that the applica-
tion of this rule was or is confined to working areas and
working time, I find it to be overly broad in violation of
Section 8(a)(1) of the Act. Stoddard-Quirk Mfg. Co., 138
NLRB 615 (1962); Presbyterian/St. Luke's Medical
Center, 258 NLRB 93 (1981).
(2) The discharges
Since I have determined that the testimony given by
Sue Tapscott and Bill Atkinson is true, and reflects accu-
rately the motives of the management of Springfield
Manor, as well as the actions of Margaret Patton and Ed
Hettinger , as well as the actions of Atkinson and Taps-
cot, I am impelled to the conclusion that all the dis-
charges here were motivated exclusively by antiunion
considerations . The alleged reasons advanced by Re-
spondent for the discharges were entirely pretextual, in
some instances reflective of some shortcomings by the
employees, and in others wholly fabricated by Patton,
Atkinson or, Tapscott . I therefore find that Respondent
violated Section 8(a)(1) and (3) of the Act by the dis-
charges of Paula Clements and Virginia Willhite on June
27, Mary Lyons on June 28, Margaret Tinney on June
30, and James Green and Pat Bline on July 12. 29 See,
e.g., Dawson Carbide Industries , 273 NLRB 382 (1984);
Magnolia Manor Nursing Home, 260 NLRB 377 (1982).
(3) The blacklisting
Sue Tapscott testified that on Margaret Patton 's orders
she called the Lewis Memorial Nursing Home and told
the administrator that they had terminated Virginia Will-
hite at Springfield Manor because of union activity. This
I find to be a further violation of Section 8(a)(1) of the
Act. NLRB v. Mount Desert Island Hospital, 695 F.2d 634
(1st Cir. 1982).
(4) Alleged subordination of Atkinson
The credible testimony outlined above shows that
Patton discussed with Atkinson after he had resigned
from Springfield Manor the fact that he might be giving
testimony to a Board agent in a prior case (33-CA-7663)
involving Mary Lyons, and she intimated to Atkinson
that if his testimony was favorable to the Company, he
might get his old job back or he might be considered for
a position at corporate headquarters.
This matter is not entirely free from question. Even
though I believe the testimony of Atkinson and Tapscott,
that testimony is rather vague . Since there is no allega-
tion here that this conduct of Patton involved a violation
of the Act. Because of that I cannot say that the matter
is either at issue here, or has been fully litigated, and I
expressly make no finding on it.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
Having found that the Respondent unlawfully termi-
nated Virginia Willhite, Paula Clements , Mary Lyons,
Margaret Tinney, James Green, and Pat Bline, I shall
recommend that Respondent offer them immediate and
full reinstatement to the positions they occupied at the
29 I do not consider that this case comes within the rules laid down by
the Board in Wright Line, 251 NLRB 1083 (1980).
SPRINGFIELD MANOR
time of the discrimination against them , or to substantial-
ly equivalent positions , without prejudice to their seniori-
ty or to any other rights and privileges they may have
enjoyed in their employment for Respondent, and to
make them whole for any loss of earnings suffered by
them as the result of the discrimination against them by
the payment to them of sums equal to those they would
have earned , absent the discrimination against them, with
backpay computed in accordance with the formula in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
in the manner prescribed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987).
Since I do not believe that the unfair labor practices
found here are so numerous or egregious as to indicate a
disregard for the law, or for ordinary norms of human
conduct, I shall not grant the General Counsel 's request
for a remedial visitatorial provision.
CONCLUSIONS OF LAW
1. Respondent HS Healthcare, Inc., d/b/a Springfield
Manor, Springfield , Illinois, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The United Food and Commercial Workers Union,
Local 881, United Food and Commercial Workers Inter-
national Union , AFL-CIO, CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. By maintaining an overly broad no -solicitation rule,
the Respondent has violated Section 8(a)(1) of the Act.
4. By discharging its employees , Virginia Willhite,
Paula Clements, Mary Lyons, Margaret Tinney, James
Green , and Pat Bline, the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
5. By attempting to blacklist its employee Virginia
Willhite, the Respondent has violated Section 8(a)(1) of
the Act.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 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-
ed80
'° 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
31
ORDER
The Respondent, HS Healthcare, Inc., d/b/a Spring-
field Manor , Springfield , Illinois, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a discriminatory no-so-
licitation rule.
(b) Blacklisting any of its employees by notifying other
employers that employees have been terminated for ac-
tivities on behalf of a labor organization.
(c) Terminating any of its employees because of their
activities or suspected activities on behalf of a labor or-
ganization.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer to Virginia Willhite, Paula Cle-
ments , Mary Lyons, Margaret Tinney, James Green, and
Pat Bline full reinstatement to their former or substantial-
ly equivalent positions , together with all rights and bene-
fits appurtenant thereto, together with backpay comput-
ed in accordance with the manner set forth in the
remedy section of this decision.
(b) Post at its Springfield , Illinois location copies of
the attached notice marked "Appendix."a 1 Copies of the
notice, on forms provided by the Regional Director for
Region 33 , after being signed by an authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses.
91 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."