St. Paul'S Church Home, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1985

275 N.L.R.B. 1242 (N.L.R.B. 1985)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St.- Paul's Church Home, Inc. and Hospital and
Nursing Home Employees Union Local No. 113,
Service Employees International Union, AFL-
CIO. Case 18-CA-7403
31 July 1985
DECISION AND ORDER
BY:CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 March 1983 Administrative Law Judge
Phil W. Saunders issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel-filed an answering brief.
The National Labor Relations Board has delegat-
ed its. authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions to the extent they are consistent with
this Decision and Order, and to adopt the recom-
mended Order as modified.
The judge found that Licensed Practical Nurses
(LPNs) Sue Daul and Willie Sager were acting as
the Respondent's agents in the conduct of the 27
August meetings with the employees in the chapel;
that the Respondent must be held accountable for
their actions and statements; that Sager was the
Respondent's agent for the purpose of uncovering
the reasons the employees wanted the Union; and
that during the meetings with employees Sager vio-
lated the Act by threatening employees with a loss
of benefits if they selected the Union, and by inter-
rogating employees as to why they wanted the
Union.
In support of his conclusion, the judge found
that there was a reasonable inference that the em-
ployees at the meeting on 27 August believed that
Sager and Daul were speaking-and acting on behalf
of management.- He based- -such inference on his
finding that several employees testified to having
seen Sager, Daul,, and others meeting with Re-
spondent Administrator Jadoo on the Respondent's
porch immediately prior to the' chapel meeting;
that the Respondent's intercom system was then
i We adopt the administrative law; judge's conclusion that the Re-
spondent violated Sec 8(a)(3) and (1) by annouiicing and subsequently
revoking a wage increase 'In doing so, we rely on his findings that the
Respondent's administrator Jadoo told employees at a meeting held 26
August that a wage increase had been recommended, and that a notice
posted on a bulletin board on the Respondent's premises about the same
time announced that an across-the-board wage increase of 60 cents per
hour would be effective 1 September Contrary to the judge, we do not
find that a decision to defer consideration of a proposed wage increase in
the wake of union organizing activities pending the outcome of `these ac-
tivities or an election necessarily violates the Act Medical Center at
Bowling Green, 268 NLRB 985 (1984)
used to summon-the employees to the chapel meet-
ing; that Jadoo was present during at least part of
the meetings, and both meetings were held during
normal work hours; and that the Respondent did
not seek to disavow any of the statements made by
Sager, Daul,2 and others during the course of the
chapel meeting or the meeting held in- the dining
room shortly thereafter. - • - 1 -
• The' Respondent contends that the judge's find-
ing that Sue Daul and-Willie Sager were acting as
agents of the Respondent is' not adequately sup-
ported in the record. We find merit in the Re-
spondent's contention.
As found by the judge, the Respondent received
a letter from the Union demanding recognition on
27 August 1981. At approximately noontime of that
day, antiunion employees Willie Sager, -Sue Daul,
Randi Pittman, and Mary Kusterman met with Ad-
ministrator Jadoo on the back porch of the Re-
spondent's' facility to discuss the organizing- cam-
paign and they were seen by prounion employees.
The Respondent's witness Randi Pittman testified
on cross-examination that she and the other antiun-
ion employees, Sager, Daul, and Kusterman, re-
quested permission to hold a meeting of employees
and asked Jadoo to speak at the meeting. Pittman
further testified that she wanted to know why the
employees wanted a union, that she told Jadoo that
was why she wanted to call the meeting, that she
used the intercom system to summon employees to
a. meeting at 1 p.m. in the Respondent's chapel, and
that Sager opened the meeting.
However, as noted by the judge, Pittman re-
called that Sager opened the meeting but could not
remember the substance of what was said. More-
over, Pittman testified that Jadoo was not,present
at the beginning of the meeting, although he came
in at some time after it started.
Several of the witnesses called by the General
Counsel testified that Jadoo, Sager, and Daul were
in front of the chapel and that Sager did most of
the talking. Union protagonist Sharon Caron testi-
fied that, after Sager asked why the employees
wanted a union when they were not willing to dis-
cuss their complaints, Caron told her that the em-
ployees did not have to listen to her, at which time
Jadoo stood up and indicated he agreed by stating
that Caron was right and that the employees did
not have to listen to Sager or Jadoo. Thus, the
record shows that Jadoo made clear to the employ-
ees that the Respondent was disavowing Sager's
2 However, the judge also found that no illegal remarks were attrib-
uted to Sue Daul Although Randi Pittman and Mary Kusterman were
also seen with Willie Sager and Sue Daul at their meeting with Adminis-
trator Jadoo on the back porch of the Respondent's facility, no illegal
remarks were attributed to Pittman and Kusterman
275 NLRB No. 170
ST PAUL'S,CHURCH
conduct and statements . Moreover , the record fails
to show that Jadoo was present when the asserted
unlawful interrogation and threats took place.
As to the second meeting held on 27 August;
Donna Gilsdorf Lorch3 testified .that Jadoo was
asked to leave the meeting shortly after it started,
and that he did so' Therefore; the record does not
support a finding that the Respondent approved or
ratified the conduct of Sager at such meeting. Al-
though it is asserted that the employees were in-
formed that they would lose all - their benefits if
they voted for the Union, Lorch was unable to de-
termine who made the statement , and she testified
that either Sager or scheduling coordinator Carole
Cole made the statement . There is no evidence that
someone from management was present when the
asserted threat was made.
It is well established that under Section 2(13) of
the Act the responsibility of a respondent for the
actions of others alleged to be its agents is con-
trolled by the applicability of the common law
rules of agency .4 Therefore, the establishment of
an agency relationship requires proof of the pres-
ence of the respondent 's bestowal of authority on_
the asserted agent , whether actual or apparent, and
either in advance or by subsequent ratification.5
Contrary to the judge, we find that there is no
basis on which the employees could conclude that
Sager and Daul were speaking and acting on behalf
of management . The record is devoid of any evi-
dence that either Sager or Daul was a supervisor
or had acted as a spokesman for management at the
meetings in issue or on prior occasions . Although
several employees testified to having seen Sager,
Daul, and other antiunion employees talking to Ad-
ministrator Jadoo on the back porch of the Re-
spondent 's facility prior to the 27 August meetings
with the employees , there is no evidence that the
subject matter discussed at that particular time in-
cluded antiunion conduct involving interrogation
and threats. In these circumstances ; it can hardly
be concluded that the prounion employees ' could
reasonably conclude that at that time the Respond-
ent bestowed upon Sager and Daul authority to
make illegal statements or engage in_ unlawful con-,
duct. While the meeting on the - back porch might
indicate that the antiunion employees, Sager, Daul,
and others, might share similar' antiunion 'views
with management , these circumstances are insuffi=
cient to render ' the Respondent responsible for the
asserted illegal conduct engaged in by Sager and
3 The witness' name had been changed to Donna Gilsdorf Lorch at the
time of the hearing
4 Electric Motors & Specialties , 149 NLRB 1432'(1964)
5 Lexington Chair Co, 150 NLRB 1328 (1965) '
1243
Daul.6 Inasmuch as there is no evidence that the
Respondent directed Sager and Daul or 'cloaked
them with authority to engage in the alleged illegal
conduct,7 we find that the Respondent is not re-
sponsible for their statements or conduct.8
Accordingly , we find that there is no evidence in
this record which- would support a finding that
Sager ,' Daul, and ' others were acting as the Re-
spondent 's agents in the conduct of the 27 August
meetings or that the Respondent must be held ac-
countable for their actions and statements including
Sager's conduct in attempting to uncover the rea-
sons the employees. wanted the Union.
ORDER
The National Labor Relations Board adopts the
recommended Order ' of the administrative' law
judge ., as modified below and orders that the Re-
spondent , St. Paul 's Church Home, -Inc., St. Paul,
Minnesota , its officers , agents, successors , and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraphs 1(a) and (b) and reletter the
subsequent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER DENNIS , dissenting in part.
Contrary to the majority, I agree with the judge
that the Respondent must be held responsible for
the coercive conduct of employee Willie Sager.
It is undisputed that Administrator Jadoo met
with several antiunion employees , including Sager,
and.' expressly authorized a • meeting to ascertain
why employees wanted representation . At the ini-
tial' meeting , announced over the Respondent's
intercom system , held on company time ,, and at-
tended by Jadoo, Sager asked employees why they
wanted a -union. The judge found that Sager also
told them, either at the initial meeting or at a
second meeting convened immediately after the
6 Electric Motors-&. Specialties, supra Unlike our dissenting colleague,
we find this case distinguishable from Bio-Medical Applications of Puerto
Rico, 269 NLRB 827 (1984), where, as here , there is msiifficient evidence
to support a finding that the Respondent authorized or subsequently rati-
fied the employee's conduct - ' - 7
' We note that the term "express authorization " contained in our col-
league's dissent refers to the Respondent's grant of permission to certain
employees to hold a meeting for 'the purpose of ascertaining why em-
ployees wanted'a union There is no evidence that , in granting permis-
sion , the Respondent either directed or even contemplated the making of
certain remarks . or that the ' Respondent sanctioned those remarks by
being present at the , meeting at the time the remarks were made or by
any other subsequent word or action Unlike our dissenting colleague, we
do not find that, by merely providing access to a forum for discussing
competing views, the Respondent should now be held accountable for
any statements of employees which may have occurred during the course
of the discussioii'
8 Kendall Co , Bethune Plant, 126 NLRB 502 (1960)
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first meeting ended, that they would lose benefits if
they chose the Union.
I agree with the, judge that Sager acted as the
Respondent's agent in the meetings and the Re-
spondent is therefore responsible for her remarks.
First, Jadoo expressly authorized Sager to hold a
meeting to find out why employees wanted the
Union. Although he did not specifically authorize
her loss-of-benefits threat,- it fell ,within the scope-of
her general authority to speak at the meetings, and
furthered the Respondent's interest in opposing the
Union. Second, I agree with the judge that the
meetings were held under circumstances -leading
employees reasonably to believe they reflected
company policy rather than individual employee
sentiment. Accordingly, Sager had apparent au-
thority to speak for the Respondent as well as
actual authority.1
For the above reasons I would `adopt the judge's
findings that Willie Sager was the Respondent's
agent and that the Respondent violated the Act by
interrogating employees and threatening them with
loss of benefits if they selected the Union. -
' See Bio -Medical Applications of Puerto Rico, 269 NLRB 827 (1984)
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.
WE WILL,NOT promulgate and/or selectively and
disparately enforce policies in the posting -of. em-'
ployee notices in -a manner calculated to interfere
with employee Section 7 rights.
- WE WILL NOT freeze employees' wages because.
of their union or concerted activities. • - _ - _
WE WILL NOT create the impression of surveil-;
lance of employee union activities. -
WE WILL NOT inform employees that' an an-
nounced wage increase will not be given because
of union activity, and/or, revoke such -wage in-,
crease.
WE WILL NOT inform and/or admit to employees
that their hours and duties have been, changed be-
cause of their union-activities, -and/or tell employ-
ees that they have been discriminated against be-
cause of union activity. . .
WE WILL NOT change the hours-and/or duties of
employees, or suspend, give warnings, discharge,
or otherwise discriminate against them because of
their union -activities.
WE WILL .NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the-rights guaranteed them by-Section 7
of the Act. -
WE WILL offer Julie Bailey, Sharon Caron, and
Carole Lawson immediate. and full -reinstatement. to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings -and other benefits
resulting from their discharge , less any net interim
earnings, :- plus _interest , and in the same manner
make whole Mavis Cohenour for her illegal sus-
pension.
- WE WILL make whole employees for the wage
losses suffered as a result of our revocation of
wage increases announced on 27 August 1981.
WE WILL re-establish the classification or posi-
tion- of Certified Medication. Aide so as to fully re-
store Kathi Schmidt- and Sharon Caron to those
duties and that position, and with the same hours
of -work they enjoyed prior to August 1981, and
likewise so establish the normal hours of work for
Mavis Cohenour.
WE WILL remove from our files and records all
references to the discharges of Julie Bailey, Sharon
Caron, and Carole Lawson, and the suspension of
Mavis Cohenour, and the last two written warnings
to Cohenour and Bailey, and notify them in writing
that this has been done and will not be used as a
basis for future discipline against them. '
ST. PAUL'S CHURCH HOME, INC.
DECISION
STATEMENT' OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge. Based
on charges and amended charges filed on certain dates in
September'and October 1981,1 by Hospital and Nursing
Home Employees Union Local No 113, Service Em-
ployees International Union , AFL-CIO (the Union or
Local 113) -a complaint was issued on November 30
(amended on July' 23, 1982) against St . Paul's Church
.Home, Inc. (the Respondent) alleging . violations - of Sec-
tion 8(a)(1) and (3) of the Act The Respondent filed an
answer to the complaint denying it had engaged in the
alleged matter. Both the General Counsel and the Re-
spondent filed briefs in this matter. -
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing -
' All dates are 1981 'unless stated otherwise
ST PAUL'S CHURCH , -- 1245
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Minnesota corporation with an
office and place of business in St . Paul, Minnesota, and at
all times material herein, has been engaged as a health
care institution in the operation of a nursing home pro-
viding inpatient medical and professional care services
.. During .the. calendar, year ending December 31, the
Respondent, in the course and conduct of its business op-
erations, derived gross revenues in excess of ' $100,000,
and during the same period the Respondent purchased
and received at its St. Paul, Minnesota facility products,
goods, and materials valued in excess of $5000 directly
from points outside the State of Minnesota
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the- meaning
of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that,-during the times material
herein, the Respondent disparately restricted the posting
of union-related literature; threatened loss of benefits; on
several occasions interrogated employees regarding the
Union; withdrew or revoked. a previously announced
wage increase due to union activity; created the impres-
sion of surveillance; changed the duties and/or hours of
several employees (Gilsdorf, Schmidt, Cohenour,
Lawson, and Caron); issued two written warnings to
Mavis Cohenour and suspended her for 3 days, and dis-
criminately discharged' Sharon Caron, Julie Bailey, and
Carol Lawson. .
The Respondent Js a nonprofit corporation governed
by a board of trustees which owns and operates the facil-
ity here in question-a 112 bed nursing home in St. Paul
The Respondent employs- nursing, 'housekeeping, laun-
dry, dietary, maintenance, and an administrative staff but,
in this case, only the nursing staff is involved Within the
nursing staff were certified nursing assistants (CNAs),
who made up the bulk of the nursing staff, certified
medication aides (CMAs), who had passed a short train-
ing course on the admmistiation of medications, licensed
practical nurses (LPNs), registered nurses (RNs) in vari-
ous capacities; and an assistant director. of nurses and, a
director of nurses 2 -
-It appears that the nursing staff worked on three
shifts-the' morning shift from approximately 6:30'a.m to
3 p.m.; the evening shift from approximately J2 30-to 11'
p.m., and the night shift from approximately 10.45 'p.m.
to 6:15 a.m. The Respondent also maintained a -daily.
2 The following named persons occupied the positions set forth oppo-
site their respectrve. names and are supervisors of the Respondent within
the meaning of Sec 2(11) of the Act Lionel Jadoo-administrator, Kath-
leen Kelley-assistant administrator, Juanita Reilly-director of nursing,
and Mary Mullane-assistant director of nursing LPNs Sue Daul and
Willie Sager are alleged to be agents of the Respondent, but their status,
as such, is in issue and will be discussed later herein
schedule for the nursing department called the "Nursing
Daily Recap Schedule Sheet," and these recaps were en-
tered irito'.'thts record as General Counsel Exhibit 3 and
Respondent Exhibit 2.
The Respondent points out that its St. Paul facility
also maintained , through its personnel policies, an em-
ployee disciplinary system to deal with attendance prob-
lems and other violations of those policies-that an em-
ployee would receive a progression of warnings leading
to suspension, and finally termination at the second and
third' warnings The Respondent further maintains -that,
due to its internal analysts of employees' records in May,
and in response to a- complaint 'registered by Julie Bailey
in late July, it had already begun the process of reinforc-
ing its personnel policies, applying its warning system
more consistently, and requiring all employees to work a
consistent schedule and weekends when the union orga-
nizing activities began, and points to Respondent Exhib-
its 21 and 22-minutes of department meetings held in
mid-August and all -indicating that employees were then
being spoken to concerning such policies.
The events herein arose contemporaneously with an
attempt by the Union to organize certain of the Re-
spondent's employees.' On August 5, 9 or 10 employees,
including alleged discriminatees Sharon Caron, Mavis
Cohenour, Donna Gilsdorf, Kathi Schmidt, and • Julie
Bailey, met at Sharon Caron's apartment to discuss the
subject of organizing. Shortly thereafter Caron contacted
a representative of Local 113, and in mid-August ap-
proximately 19 or 20 employees, including the alleged
dtscriminatees named above, met with a Local 113 repre-
sentative and authorization cards were signed and distrib-
uted. On August 27, the Union filed a petition seeking to
represent two separate units of the Respondent's employ-
ees-a service and maintenance unit and a licensed prac-
tical nurse unit, and pursuant to an election held on Oc-
tober 9; the Union was certified as the collective-bargain-
ing- representative of the 'employees in the service and
maintenance unit, but not of the employees in the li-
censed practical nurses unit. -
Lionel Jadoo, administrator of the facility here in
question, testified that he first learned' about the organiz-
ing activities on August 26, and on that evening he met
with a group of employees and informed them of a letter
he had written to the Respondent's board of trustees
concerning wage increases, and that an employee then
read this letter to the other employees present at this
meeting.
.The following day, August 27, the Respondent re-
ceived a letter .from Local 113 demanding recognition,
and around ,noontime employees Willie Sager, Sue Daul,
Randi Pittman, and Mary Kusterman (antiunion employ-
ees) met with Administrator Jadoo on the back porch of
the Respondent's facility to discuss' the organizing cam-
paign and were seen by, prounion people. The Respond-
ent's witness Randi Pittman testified that on this occasion
she and the other employees named above requested per-
mission to hold a meeting of employees and asked Jadoo
to-speak at the' meeting.. Pittman testified on cross-exami-
nation as follows:
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr . Fox) Is it your testimony that you
wanted to know why the employees wanted a
Union , that 's why you called the meeting?
A. This is correct.
Q Did you tell Mr. Jadoo that is why you
wanted to call the meeting9 -
A Yes, we did.
Randi Pittman then used the intercom system to summon
employees to a meeting at- 1-p.m . in -the chapel at the Re-
spondent 's facility. . -1. i
Pittman recalled that Willie Sager opened the meeting
but could not remember the substance of what was said.
However , Pittman did recall that Jadoo was not 'present
at the beginning of the meeting but came in after the
meeting started. -
Several witnesses called by the General Counsel testi-
fied that Jadoo, Sager , and Daul were in front of the
chapel and that Sager did most of the talking. Donna
Gilsdorf (sometimes Donna Lorch , herein) testified she
recalled Jadoo telling them on this occasion that "he
could not say much because of the Union practice,
Union going on_ and everything was frozen ." Moreover,
that Sager "asked us why we wanted a Union but
nobody said anything , and that Sharon Caron said that
"if we said anything , it was like we were admitting we
were for the Union , which we did not have to do."
Sharon Caron also testified as to this meeting and
stated: -
Willie Sager had said that there was problems in the
Home and that if anyone of us had any -problems,
they wanted to know about them. They wanted to
know why we wanted a Union, if -there was any
problems to talk to them about it. Nobody an-
swered her: She said, well, seeing as nobody had
any complaints, why did we want a Union? Then I.
told her that we really didn't have to listen to her
and this is when Mr. Jadoo stood up and said no,
Sharon Caron is right, you don't have to. listen to
us. He was waving some papers in the air and said
he had gotten those from the Union and they were
what he could do and what he was not.to do and
then he said that it seemed to him that none of us
wanted to hear his proposal for 1981, so those who
did not want to listen could leave; the ones -who did
want to know about the proposal could meet him in
the main dining room on the first floor.
Kathi Schmidt testified that-
A. I recall Willie Sager asking us why we
wanted a Union, and if there was any problems we
should have consulted Mr. Jadoo instead of going
to the Union.
Q Do you recall anything'else that was said?
A. About the benefits, she said that we would be
losing all of the benefits if we' were going to get a
Union in, and that we wouldn't-have the benefits
we had at that time. -
Q.' Do you recall anything else being saidl' Do
you recall any employees saying anything?
A.. At that time, Sharon Caron had said that we
did not have to listen to her (Sager), that none of
the employees had to listen to anything they had to
say. - - ,
General Counsel's witness Julie Bailey testified that:
A. Willie` Sager opened up the 'meeting and she
said, she asked us-she wanted to talk about the
Union and she asked us why we were going to'the
Union seeking representatioii, when Mr. Jadoo had
been so good to us and was offering us a raise.
Q. Do you recall anything else?
A. She asked .us what'the Union could do for us
that Mr. Jadoo couldn't and why didn't we give
him a chance to hear his side of the story. Then she
asked what, could the Union do for us and no one
answered her. And then she said since nobody
wanted to talk about the Union, then the Union
couldn't be that good. So I asked her if she had
ever been to a Union meeting, and she said no, but
that' she intended to go. Sharon Caron then said
that we did not have to sit there and listen to her
talk about the Union, and especially in front of the
office personnel, they couldn't expect us to stand up
and say that we were for " the Union. Then Mr.
Jadoo stood up and said if we didn't want to listen
to him, we could all. back to work If we wanted
to talk, we could-meet with him in the first floor
dining room. Then we all went back to work.
Finally, General Counsel's witness Mavis Cohenour testi-
fied: •
'Willie Sager got up and- started the meeting. She
wanted to know if we could 'tell her what the
Union could do' for us that' Mr: Jadoo- couldn't do
for us; he was already giving us so many good ben-
efits and had offered us more money and we were
supposed to give her a couple of good reasons why
we wanted the .Union Nobody said anything, and
then I remember Sharon Caron saying that if they
wanted to know about the Union, they could go to
Union meetings, and we did not have to answer.
Then Mr: Jadoo got up and said that if we wanted
to listen to him we could all come to the first floor
dining room, those that wanted to listen; those that
didn't should go back to work -
Donna Gilsdorf 'was the 'only witness called by the
General Counsel who attended the second meeting in the
dining room on August 27. Gilsdorf testified that Jadoo
was again present along with Sager and Daul-that with
a chalkboard Sager informed employees as to the money
amounts contained in the proposed wage increases of the
Respondent , and that either Sager, or the then -schedul-
ing coordinator Carol Cole, informed the employees that
they would lose all of their "benefits if they voted to be
represented by the Union. It appears that Jadoo was
asked to leave this meeting shortly after it started, and
that he did so. " .
Counsel for the Respondent argues that Sue Daiil and
Willie Sager, LPNs 'on the evening shift, along with-
ST. PAUL'S CHURCH 1247
Randi Pittman and Mary Kusterman, - CMAs on the
evening shift, all employees who would be entitled to
vote in any certification election, initiated the meeting
here in question with the day staff employees to discuss
the pros and cons of unionism ; that they met with Jadoo
prior to the meeting to ask his permission to conduct it
and to invite him to participate if any employees had
questions; that Willie Sager was the spokesperson for the
group -of -employees initiating -the, meeting and opened
the meeting when there was no management persons
present asking those employees in favor of the Union
why they wanted one, that Jadoo was then invited to the
meeting to answer questions, but he did not stay for
much longer than 5 minutes; and when leaving stated
that he would be available' in the dining room for anyone
who wished` to talk to him,' but that no one was obligated
to listen to him. A number of employees then recon-
vened in the dining room and again Jadoo was invited to
answer questions, but soon was asked to leave and the
discussion then continued among-the employees.
Counsel for the Respondent maintains that Sager and
Daul, along with promanagement employees,Randi Pitt-
man and Mary Kusterman, were acting in theircapacities
as fellow employees wishing to discuss the question of
concern they shared with the day-shift employees,
namely, the merits of having a union, and while it ap-
pears that management gave its approval for such a
meeting , Jadoo was present only before he was requested
by prounion employees to leave, and in all other respects
the discussion in question was an open one between
fellow employees.
It is argued by the Respondent that from these facts it
cannot be concluded that Daul and Sager operated as
agents of the Respondent; that it is also clear they were
not supervisors within the meaning of the Act as they
were employees who were entitled to vote in the. subse-
gtient election In addition, they had no supervisory au-
thority over 'any of the day-shift employees as they
worked on the evening shift, and thus there can be no
allegation of any threat or interrogation from a supervi-
sor. Moreover; even though the General Counsel singles
out Daul and Sager as agents- because they were LPNs,
they merely acted with two other employees and all of
whom were members of the rank and file '
As indicated, the Respondent seeks to disclaim respon-
sibility for what occurred at the meetings on August 27
by contending that Sager and Daul were acting in their
individual capacities as employees and not as the Re-
spondent's agents, but the record belies this contention.
First, Sager, Daul, et al., proposed, and Lionel Jadoo
agreed, that he attend a meeting to be held for the pur-
pose of determining why the employees desired union
representation. Jadoo therefore expressly sanctioned the
course of conduct on which' Sager, Daul, et al., em-
barked. '
An employer may be liable for the acts and 'statements
of nonsupervisory employees who act as his agents. It is
well settled that where an employer places a nonsupervi-
sory employee in a position in which employees could
reasonably believe he speaks for management, the em-
ployer then may be responsible for the 'coercive state-
ments of that employee. • The' critical issue is "`whether,
under all the circumstances, the employees would rea-
sonably believe that the nonsupervisory employee was
reflecting company policy and speaking and acting for
management ." Community Cash Stores, 238.NLRB 265
(1978).3
In the instant case, considering all the extenuating cir-
cumstances, as aforestated, it is a reasonable inference to
conclude that the employees at the meeting on August
27 would believe that Sager and Daul were speaking and
acting on behalf of management .' Moreover, several em-
ployees testified to having seen Sager, Daul, et al., meet-
ing with Jadoo on the porch immediately prior to the
chapel meeting. The Respondent's intercom system was
then used to summon the employees to the chapel meet-
ing; and Jadoo was present during at least part of the
meetings, and both meetings were held during normal
work hours Moreover, the Respondent did not seek to
disavow any of the statements made by Sager, Daul, et
al, during the course of the chapel meeting or the meet-
ing held in the dining room immediately thereafter. -In
these circumstances it is clear that Sager, Daul, et-al.,
were acting as the Respondent' s agents in the conduct of
the August 27-meetings and that the Respondent must be
held accountable for 'their actions and statements.-9 Cer-
tainly, Sager was the Respondent's agent for the pur-
poses of uncovering the reasons as to why the employees
wanted the Union
The evidence recounted above establishes that during
the meetings in question the Respondent's agent Willie
Sager violated the Act by threatening employees with a
loss of benefits if they'selected the Union, and by interro-
gating employees as to why they wanted the Union.
It is alleged in the complaint that on August 26 Ad-
ministrator-Lionel Jadoo informed employees that a pre-
viously announced wage increase could not be granted
because of .union activity, and that about this date the
Respondent revoked their previously announced wage
increase
Lionel Jadoo, the Respondent's administrator, and
Donald Oswald, the chairman of the board of trustees,
both testified as to their preliminary discussions about a
wage increase, but which was halted when the Union's
representation efforts became known Jadoo testified that
as early as May and June he had been talking about a
wage increase for his employees as the Respondent's
wage scale was somewhat. lower than other nursing
homes in the area and, in accordance therewith, he sent
a letter, dated August 25, to the chairman of the Re-
spondent's personnel advisory committee recommending
certain cost-of-living increases in various classifications,
and to be effective September 1 instead of the nornial
wage adjustment in December.6
s See also Delta Hosiery, 259 NLRB 1005 (1982)
a One of the Respondent's own witnesses (Rosetta Barnett) so testified
on direct examination '
Q (By Ms Blumer) During that meeting, do you remember what
your opinion was of who Willie Sager and Sue Daul were speaking
for, themselves or for Mr Jadoo9
A At that time, I thought they were speaking for Mr Jadoo
5 No witness testified to any remarks made by Sue Daul and, therefore,
no illegal statement , as such , can be attributed to her
' See R Exh 19 , ,
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jadoo stated that he was also present at a board of
trustees meeting on August 26 when his wage proposal
was discussed, but about the same time he was handed a
poster and another document which notified them of the
union activity here in question, and as a result the Re-
spondent Board Chairman Donald Oswald told Jadoo
that in view of this development nothing could be done
with his wage proposal. Jadoo denied discussing any
wage proposals at the meetings on August 27.
Chairman Donald Oswald_ testified that before the
wage proposal here in question could be authorized, a
meeting would have been held to review the current
wages with the proposals of Jadoo, and to then ascertain
if the home could afford such increases, but stated that
such a meeting had not taken place and, therefore, the
wage proposal recommended by Jadoo was not finalized.
Chairman Oswald acknowledged that the board of
trustees decided to halt any further consideration of the
increase in wage proposals, pending resolution of the
representation question, and stated his two reasons for
doing so.
A. Well, there were two reasons really, one was
that if the Union was to be voted in, it would create
a new floor from which to negotiate a contract
with the Union after they came in anyway. Second-
ly, if we were to make an adjustment knowing that
they were asking for or about to ask for recogni-
tion, we might be accused of trying to buy off the
employees by making a wage increase Under those
conditions, we would just wait it out and it wasn't
normally due until the first of December
anyway.
Counsel for the Respondent points out and argues that
in the instant case, taking the confusing and the contra-
dictory testimony of the witnesses for both the General
Counsel and the Respondent together, the most that can
be said is that Lionel Jadoo may have stated that the
pending wage increase was "now frozen" due to union
organizing activities and, if that is the situation, it still
falls squarely within the reasoning of the court in Bon wit
Teller v. NLRB, 197 F 2d 640 (2d Cir. 1952).
In addition to what I have already outlined, various
witnesses for the General Counsel testified that they saw,
for a very short period of time, about August 26, posted
by the timeclock on the second floor, a notice announc-
ing a 60-cent-per-hour increase for all employees effec-
tive September 1. This notice was'described as being on
a half sheet of paper with the Respondent's. letterhead
and was posted for an hour or two in the middle -of the
day. ,
The Respondent's witnesses all deny the existence of
any such posted notice. Administrator-Jadoo stated that
he had no knowledge of any such notice, that there was
nor such increase authorized, that he -did not authorize
anyone to prepare or post such a notice, and that he did
not ever hear of one prior to.a week before the hearing
Diane Dietrich, the secretary for the Respondent, stated
that she did not type such a notice, and that had such a
notice been produced it would not have appeared on the
Respondent's letterhead, and that she and others had
searched for a copy of the notice, but could not locate
any such copy. Rosetta Barnett; a housekeeper and a
member of the union bargaining committee, stated that
she was assigned to clean the second floor on the day in
question' and' that she did not see any such notice even
though she cleaned near the timeclock during the time it
was purportedly posted, and she made it a habit to read
the bulletin board there. Jadoo, testified that he-was fully
aware of the fact that the Respondent had been subpoe-
naed to produce such a document, yet he and his staff
had no knowledge of such a notice and could ,not find
copies anywhere.
Counsel for the Respondent further argues that while
the Respondent cannot call into question what the, Gen-
eral Counsel witnesses may have seen; nevertheless, it
urges a finding that the Respondent did not authorize or
have knowledge of any such notice until it was subpoe-
naed to produce it. The Respondent cannot be said to
have committed any unfair practices by reason of the no-
tice's purported existence, and the contents -of which
were completely contrary to the actual wage increase
which had been under consideration by the Respondent.
Several witnesses called on behalf of the General
Counsel testified, in substance, that about the time of the
August 27 meetings, a notice announcing an across-the-
board wage increase had been posted on the bulletin
board by the second floor timeclock, and that the'
amount of the wage increase, which was to be effective
September 1, was 60 cents per hour. All agreed that the
notice was posted for only a short time that day The
Respondent's witnesses testified to the contrary, as afore-
stated, and finally Jadoo testified that he did not author-
ize the posting of the notice in question and had no
knowledge of its existence.
As already detailed earlier herein, second-shift employ-
ees learned from Jadoo during the evening of August 26,
that a wage increase had been recommended. Moreover,
the General Counsel's witness Donna Gilsdorf credibly
testified that at the second of the August 27 meetings (in
the dining room) the proposed wage increase was dis-
cussed, that the wages of various employees were even
set forth on a blackboard by Willie Sager, and that the
amount of increase she would have received was 60
cents per hour. In fact, even the Respondent's own wit-
ness Eldoris Pankey confirmed that Jadoo discussed the
proposed wage increase at the second meeting on August
27 and in the discussion at the second meeting that same
day. Moreover, the chairman of the Respondent's board
of trustees testified that he informed Jadoo on August 27
that the board had decided at its meeting the prior day
to hold in abeyance further consideration of the pro-
posed wage increase. As pointed out, this would explain
Jadoo's statements to employees on August 27, at the
chapel meeting, concerning the freezing of wages. It also
explains the sudden removal of the posted notice con-
cerning wage increases on August 27.
In essence, the Respondent's board of trustees deferred
consideration of Jadoo's proposed wage increases pend-
ing the outcome of the Union's petition to represent the
ST PAUL'S CHURCH
employees.7 It appears to me that under the particular
circumstances and events-here, the deferral or refusal to
further consider the administrator's wage proposal and
recommendation here in question was clearly calculated
to impress on the prounion employees the fact that the
advent of the Union was the real reason for failing to
consider what might otherwise have been a valid and ac-
ceptable proposal. See Blackstone Co., 258 NLRB 945
(1981) While the Respondent's board of trustees may not
have finalized Jadoo's recommended wage package, in
the eyes of the employees it was finalized The overall
circumstances here duly reflect the same, especially so
considering the posting of the increases and the discus-
sion of it by Sager at the dining hall meeting.
In view of the foregoing, I have found that due to the
union activities of its employees, the Respondent first an-
nounced and then revoked a wage increase in violation
of Section 8(a)(1) and (3) of the Act.
It is alleged that the Respondent selectively and dis-
parately restricted the. posting of union-related literature
to the employees' breakroom.
Several witnesses called by the General Counsel
(Lorch, Caron, Schmidt, and Bailey) testified that, prior
to the commencement of the Union's organizing cam-
paign, employees had commonly posted notices concern-
ing social events, items for sale; ball games, dances, and
similar announcements at various locations throughout
the Respondent's facility. However, after the commence-
ment of the organizing campaign the Respondent posted
the following notice:
POSTING
It is the policy of St. Paul's Church Home that no
notice be posted in hallways, resident rooms, bath-
rooms, or corridors without written authorization
by the administration,
Personnel Policy Handbook -page 25 "i"
Employees shall properly use and properly take
care of the property, equipment and supplies which
are assigned for use in' their work. Deliberate
misuse, abuse or damage to property, equipment or
supplies will be grounds for disciplinary action.
Authorized posting will be allowed in the Employee
Lounge only. Posting in any other area may result in
written warning or termination.8
The Respondent Administrator Lionel Jadoo testified
that it had always been the Respondent's policy to, re-
quire permission prior, to posting anything at the Re-.
spondent's facility, and that on seeing the numerous. post-
ers all over the home concerning the organizing cam-
paign and even in the rooms of the patients, he ordered
that the above-quoted notice be put up and that this was
no change in the Respondent's past policy.
Counsel for the Respondent also points out that the
rule or notice here in question merely reflects the policy
The Board has frequently indicated that an employer must determine
wage increases precisely as it would had not a union been in the picture
8GC Exh 4
1249
in effect at the Respondent's facility prior to the union
organizing campaign, and which was not changed due to
the, organizing campaign Moreover, after the rule was
posted, all union materials were posted in appropriate
places, and that Carmen Langer,- a CNA, testified that a
union official, Lorne Johnson, suggested that the best
place to post union literature was in the breakroom, as
was the Respondent's policy.
I am in agreement that the Respondent's adoption
and/or promulgation of the rule set forth in the above-
quoted notice is defective. First, even assuming that the
Respondent could require authorization prior to the post-
ing of notices in the specified work areas, such a limita-
tion cannot be extended to a nonwork area such as the
employee lounge, and by its express terms the rule in
question permits only "authorized posting" in the "Em-
ployee Lounge." Since an employer cannot lawfully re-
quire that employees secure permission prior to engaging
in protected activities, a rule which requires authoriza-
tion prior to posting notices concerning an organizing
campaign in a nonwork area is invalid as it interferes
with employees statutory rights. Liberty House Nursing
Home, 236 NLRB 456, 461 (1978). Second, as also point-
ed out, it has long been held that an otherwise lawful
rule is rendered unlawful if its adoption and/or enforce-
ment is motivated by unlawful considerations. Since the
evidence in this record clearly establishes that the Re-
spondent condoned the posting of employee notices at
various locations throughout its facility prior to the
Union's organizing campaign, and since the Respondent
admittedly posted the above-quoted notice in direct re-
sponse to that campaign, the inference is unmistakable-
that the Respondent's motivation in restricting the post-
ing of employee notices was to thwart lawful organiza-
tional activity. Thus, even assuming that the restriction
on posting notices antedated the organizing campaign,
and even assuming that the rule was applied uniformly
following the commencement of the campaign, the Re-
spondent's motivation in enforcing the rule rendered it
unlawful. Ramada Inn of Fremont, 221 NLRB 331
(1976)
It is alleged that in August and September the Re-
spondent changed the duties of Donna Gilsdorf and
Kathi Schmidt, and also changed the duties and hours of
work of Sharon Caron. It is further alleged that on Sep-
tember 9 Sharon Caron was discharged
The General Counsel initially points out that this
record clearly establishes that the regular first-shift certi-
fied medication aides (CMAs)-Sharon Caron, Donna
Gilsdorf, and Kathi Schmidt-were among the most
active supporters for the Union and that the Respondent
had knowledge of this fact, that the Respondent made
certain changes in the duties and/or hours of work of
these employees, and that the changes in question were
made contemporaneously with the inception of the orga-
nizing campaign.
Sharon Caron was hired as a CMA in July 1979, and
worked in that capacity until she was promoted to ward
coordinator in February Respondent Administrator
Lionel Jadoo told Caron at the time of this promotion
that she would receive every weekend off in lieu of a
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase,9 and in accordance therewith Caron did
not work weekends in February, March, and April, but
in May, June, and July she worked on a few weekends
In August she worked no weekends.
It appears that' sometime during the summer of 1981
the Respondent's -director of nursing Juanita Reilly told
Caron that she would be returned to her prior position as
a CMA, but she would have, to start working every
other weekend.. Caron protested on the ground that she
had been promised weekends off in lieu of a wage in-
crease when she became ward coordinator. Reilly then
told-her not to worry about it and that they would dis-
cuss the matter further if it ever came up again. Caron
then continued having every weekend off until after the
August 27 meetings 10
This record shows that within a week after the August
27 meetings with management regarding the Union, as
aforestated, Reilly informed Caron that she would have
to start working weekends Caron protested and told
Reilly that "everybody was being agitated" as a result of
the organizing campaign. She also told Reilly that it was
unfair to require her to work -weekends but that she
knew it was coming - and would accept -it Reilly then
asked Caron whether she favored the Union, and told
her that Reilly had worked in union facilities previously
and that unions were not good for anybody, and that Re-
spondent Administrator Jadoo liked Caron and had done
a lot for her Caron responded that she had- earned- ev-
erything she had gotten. Reilly also told Caron that five
or six employees had informed her that they did not
know what they were signing when they signed authori-
zation cards. Caron disputed this claim. II - -
On September 4, Caron learned for the first time that
she had been assigned to work as a certified nurses aide
(CNA). 12 When' Reilly so informed her of the above,
Caron immediately protested that she had been hired as a
CMA and not as a CNA, and that she did not appreciate
being assigned as a CNA. Reilly and Caron then went to
the second floor dining room to discuss the matter fur-
ther, whereupon Caron again protested her work assign-
ment and told Reilly she would fight it legally if neces-
sary Caron further testified -
She told me that she knew that Dale Auber [sic]
and I had started the Union, t 3 .and I told her she'
had her information wrong, that it was not Dale
and I. She said.that she wished the whole thing was
over with, if it was up to her she would let us have
our Union. She told me that other CMA's had to
work as nurse's aides and again I told her that in
the two years that I had been there, they had never
told me I had to work - as a nurse 's aide, and they
9 From July 1979 through January 1980 and up until her promotion,
Caron worked every other weekend for the most part
10 G C Exh 5 -
11 Director of Nursing Juanita Reilly did not testify so all statements
and conduct specifically attributed to her, as such ,-stands undenied in this
record
12 CMAs had better pay and duties than did CNAs CMAs do chart-
ing and pass medications CNAs are engaged primarily in patient care
13 This statement of Reilly must be deemed as creating the impression
of surveillance and I so find -
didn 't make me work- as a nurse's aide until they
found out Union wanted to get in.
On September 9, shortly after -learning that she-had
once again been scheduled as a CNA, Caron confronted
Assistant Director of Nursing Mary Mullane. Caron tes-
tified that: - •
She told me, you know what -will happen if you
.start all this Sharon ,, and- she said, come into my
office because she didn't want the ruckus out on the
floor So we went into her office and I told her, I
said , you people are doing this just to agitate us, I
said , that is all you-have ' been doing since we have
been trying to get the Union in here She 'said, no,
that is not true, that is not true. I told her she was
nothing but a puppet on a siring and Mr . Jadoo was
pulling those strings and they were doing anything
they were told to do. She said , no, and she kept re-
peating to me, you know, if you keep saying things
and if you keep doing things, if you walk out of
here, that is against you, that is against • you. But I
was agitated, I was very mad and I told her I had
discussed this with Juanita once - before about put-
ting me down as an aide when I was not hired to be
an aide and never made to work as an, aide until
Union started to come in.- I just was so riled up I
finally told her I wasn't going•,to take any more of
this crap and I walked out. I punched out and
walked out.
The question of whether the Respondent constructively
discharged Caron on this occasion is discussed later
on 14
Donna Gilsdorf began working for the Respondent as a
CNA on November 25, 1980, and received her CMA
certification in March From - March until June, she
worked as either a CMA or as a CNA, but in June she
replaced the regular second-shift CMA. She then worked
as a CMA from June 13 until August 27; From the date
of the August 27 meetings relative to the Union until Oc-
tober 19,1-1 Gilsdorf worked as a CMA on 12 occasions
and as a CNA on 22 occasions.16 Gilsdorf quit her em-
ployment in December.
Kathi Schmidt was first employed by the Respondent
in the housekeeping department in November 1978.
Within a year she became a CNA, and in April 1980, she
received her CMA certification and then worked as a
CMA. The Respondent's scheduling records disclose' that
Schmidt was not assigned to' work as a CNA at least
from May 1 through August 27, but between August 27
and October 19, Schmidt was scheduled to work as a
CMA -bn 14 occasions and as a CNA on 20 occasions. 17
14 Administrator Jadoo admitted that it had been reported - to him that
Caron was a "dynamo ," is a "motivator," and had the ability to,get
people to work
is The parties stipulated that no CMAs worked in that position from
October 19 on
"See G C Exh 3
11 G C Exh 3 '
ST PAUL'S CHURCH • 1251
Schmidt testified that on April 22, 1982, during_ the
course of a conversation- with Director of Nursing
Reilly, the following occurred: -
l'
I had gotten called ih for a warning about-having a
sweater up in the lobby and I was telling her how
trivial and ridiculous it was and that other employ-
ees had done the same thing and had not gotten dis-
cipliried for it at all. Then there was just a silence,
,and theii she asked' me if she 'could ask me some=
thing and I said sure, and she said, by the way, this
is off the record, why are you still for the Union
and why are you still working at St. Paul's Church
Home after all the harassment we `have given 'you,
and then she said, by the way, if anyone asks you'
what I've said, I'll just deny it.
Approximately 1 week later, Schmidt returned the,
written warning issued by Reilly to Assistant Director of
Nursing Mary Mullane. Schmidt testified that:
I was then telling her [Mullane] how trivial it was
and ridiculous and she had agreed with me and said
yes it is, she didn't like doing it but she had_her job
to do At that time, she was agreeing with me and
then she said that Mr. Jadoo had just told her, to
harass me any way she could and to write me up if
she found anything wrong or anything I did wrong.
Then she said, in fact- if Mr. Jadoo had seen me
talking to you like this, he would.probablyprobably harass
her also.
Atlhough Mullane testified at the hearing, she did not
deny'Schmidt's account of the above conversation:
Counsel for the Respondent points out' that a certified
medication aide, or CMA, at the Respondent's facility,
operated under a job description and in pertinent part
that job description states as follows:
DUTIES AND RESPONSIBILITIES
13 May function as Nursing Assistant 'as'.deter-
mined by Charge Nurse and Director of Nursing.
See Nursing Assistant job description.
It is further pointed out by counsel that the Respond-
ent had a longstanding practice,to assign CMAs to work
as nursing assistants , or CNAs, when there were-inad-
equate numbers of other CNAs to meet the needs of the
patients, and that the Respondent 's nursing daily recap
schedule sheets for May 1 through October 31, 1981,18
reflect many days where CMAs were reassigned to work
as CNAs on short notice to meet the needs of patients,
and there is no doubt but that the Respondent's practice,
for times prior to any union activity, was to reassign
CMAs to CNA duty as necessary.
Counsel for the Respondent further maintains that
during the 2 months prior to August 26, it was not nec-
essary to reassign any CMAs because the Respondent's
schedule coordinator had no difficulty in maintaining
adequate staffing , but beginning the last week in August,
18 R Exh 2andGC Exh 3
which happened to be the same week union organizing
activities became known , to management, circumstances
changed, and the scheduling coordinator, Carole Cole,
had to begin making reassignments and to use temporary
employees, called nursing pool, more often, and General
Counsel Exhibit 3 indicates that the following CMAs
were assigned to CNA duties, between August 27 and
September 12, 1981:
August 29, 1981-Caron, Johnson, and Gilsdorf
on days; Pittman on evenings.
September 1, 1981-Kusterman on evenings.
September 3, 1981-Gilsdorf on days.
September 4, 1981-Caron and Gilsdorf on days.
September 6, 1981-Frey-on evenings.
September 8, 1981=Gilsdorf on days
September •9, 1981-Caron, Gilsdorf, and
Schmidt on days.
September 12, •1981-Grlsdorf on days
Moreover, that such reassignments were done as before,
on the basis of seniority within the staff assigned to the
particular floor, and no loss of pay was involved. Of
those CMAs reassigned, as necessary, the evidence re-
flects that at least Kusterman and Pittman were not in-
terested in union representation, while Caron, Gilsdorf,
and Schmidt were. Thus, maintains the Respondent, it is
clear that any reassignment was done evenhandedly
without regard for possible interest in union representa-
tion, and as authorized by the employees' job description
and in keeping.with past practices. Furthermore, the Re-
spondent began eliminating the use of CMAs altogether
and replacing them with better trained licensed practical
nurses (LPNs) beginning sometime in October That the
elimination of the position of CMAs had been under
active consideration during a large part of 1981, and
nurses Mary Mullane, Kathleen Kelley, and Carole Cole
all testified for the Respondent about the concerns the
nursing staff had -about the use of CMAs, particularly in
light of a few unfortunate incidents with some of them.
The Respondent Exhibits 17 and 18 and General Counsel
Exhibit 17 are records reflecting the patient care and
medical concerns which led - to the decision to eliminate
such positions. In addition, all.CMAs whose jobs were
eliminated were reassigned-to CNAs with no loss of pay
even though they were performing functions which re-
quire less training and have less responsibility.
Finally, counsel for the Respondent further maintains
that the General Counsel has produced no evidence
whatsoever, other than accident of timing, to indicate
that the Respondent was motivated by antiunion animus
in any reassignment of CMAs to CNAs.
The Respondent contends that Sharon Caron was not
asked to work as a CNA until September as there was
little -need for reassigning any CMAs to CNA duties until
the end of August: When she was reassigned, on two or
three dates in early September, it was only when another
less -senior CMA had. already been reassigned. Caron
continued.to work as a CMA, her preferred job duties,
on days when there was no staffing needs.
The Respondent acknowledges that in late August or
early September, Caron was also requested - to work
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every other weekend as all other employees in the nurs-
ing department were or were being asked to do-that as
a CMA she had regularly worked weekends-from July
1979 through January 1980, but during February through
May she was permitted to forgo working weekends be-
cause she had assumed different job responsibilities and
then resumed CMA responsibilities in June, when the
issue of resuming weekend work was mentioned; that
there was then an expectation that she would have to
work weekends like other employees of the nursing staff
and that the Respondent's requirement, as part of its ef-
forts to maintain consistent scheduling for all employees,
was in line with that expectation, and-that Caron's re-
scheduling was based solely on a general policy to be
evenhandedly applied -to all employees and was consist-
ent with her previous responsibilities and job description
and was.related to union activities only by the accident
of timing
The Respondent produced a good deal of testimony in
support of its arguments and contentions in this phase of
the case, through its staff or scheduling coordinator
Carole Cole. Cole testified that in late August several
employees went back to school or quit and she then had
to schedule CMAs as nursing -assistants . Moreover,-that
in October a decision was made ' that CMAs were no
longer to be used as such, and she then scheduled them
as CNAs. - -
Cole further testified that. in the time period material
herein she was also aware that certain employees were
not working weekends-Cohenour, Caron, Lawson, Tau-
zell, and Cocoran-and that at this time, in October, she
was finding it difficult to adequately staff the weekend
shifts 19 Cole said that as a result Reilly had informed
her in September or October to schedule all nursing em-
ployees every other weekend. -
Assistant Director of Nursing Mary Mullane testified
that she did not like the use of CMAs; and in August or
September a decision was made to replace them :with
LPNs Moreover , in late August the" staff discussed a
more consistent schedule in getting those ' not working
every other weekend to do so. -
As pointed out, the Respondent's principal defense
with regard to the changes in the 'duties and/or hours of
Caron, Gilsdorf, and Schmidt is that CMAs had' histori-
cally been utilized as CNAs and that, therefore, what oc-
curred in the fall of 1981 was consistent -with past prac-
tice. The Respondent also attempts to buttress. this de-
fense by establishing that seniority, rather, than antiunion
motivation, was used to determine which CMA worked
as a CNA and that. the, Respondent treated,:prounion
CMAs_ and other CMAs consistently 'The Respondent
also contends that sometime in the fall of 1981 the Re-
spondent abolished the CMA position for •'reasons .related
to improving patient.care.
As I have indicated,. the Respondent's defense con-
cerning assigning CMAs to work as CNAs on numerous
occasions depends primarily on the testimony of Carole
Cole, the person in charge of nursing department sched-.
tiling during times relevant herein. However, Cole's testi-
mony is highly suspect. At the beginning of her cross-
' 0 See R Exhs 9 and 10 -
examination, as pointed out, Cole was asked specific
questions as to whether she had reviewed Lionel Jadoo's
affidavit and the Respondent's 'position statement prior to
her testifying. She answered each question in the nega-
tive,' but then on the following day the Respondent's
counsel recalled Cole, who, then admitted to having re-
viewed each document on the day 'prio'r to hef denial.
The Respondent's contention that the reassignment of
CMAs to work as C_NAs in the fall of 1981• was 'consist-
ent with historical practice is not borne' out by the
record evidence. The.; only specific evidence offered by
the Respondent that Sharon Caron previously had been
assigned to work as a' CNA were three daily schedules
for 1980, and accepting the fact that Caron did work as a
CNA on those few occasions in 1980, this evidence only
demonstrates how widespread her reassignments were
prior to the union activity here in question.
The -Respondent's record, in regard to Donna Gils-
dorf, establishes that following her certification as a
CMA, she then worked as a CNA on several occasions
during May and June, but this pattern' seems to be con-
sistent•with the overall scheduling of other CNAs who
later became CMAs-like Gilsdorf. Thus, as outlined,
the pattern that emerges from this 'record 'is that CNAs
continued to work in that 'capacity-on occasions during
the period immediately following their CMA certifica-
tion-that there follows a transition period in which they
work as either a CMA' or as a 'CNA-then eventually
they are scheduled to work almost 'exclusively as CMAs.
Gilsdorf's assignments as a CNA in late spring are con-
sistent with this pattern.
Scheduling Coordinator Carole Cole testified that she
used seniority to reassign CMAs to work as CNAs.
However, ' she admitted knowing that Caron, Gilsdorf,
and Schmidt favored union representation, and that two
other CMAs, Randi Pittman, and Mary Kusterman, were
strongly opposed to such representation, but denied that
this knowledge was a factor in determining reassign-
ments. This record discloses that Cole construed seniori-
ty to mean length of time worked as a CMA on a par-
ticular shift, and that she generally. reassigned CMAs to
work as CNAs on the same floor. Thus, as pointed out,
since there was a maximum of one CMA per floor per
shift, -there would hardly be any occasion to invoke se-
niority in reassigning CMAs to work as CNAs. More-
over, this record does disclose that Caron and Schmidt
were the most senior CMAs, and that following August
27, they were never asked if they would like to bump a'
less senior CMA on another shift.
As further detailed by the General Counsel,' the Re-
spondent's scheduling records disclose that the first-shift
CMAs- were more frequently reassigned to work as
CNAs 'than were the second- and third-shift CMAs.
Thus, the records establish that, between August 27 and
October '16, first-shift employees Schmidt, and Gilsdorf
worked as CMAs on 14 and 12 occasions, respectively, 20
and in contrast second-shift employees Pittman and Kus-
terman worked as CMAs on 20 and 25 occasions, respec-
20 Caron was not employed throughout this entire period and, there-
fore, is not included in these comparisons
ST PAUL'S CHURCH
tively, but even more revealing, as also pointed out, is
that during the same time period, Schmidt and Gilsdorf
worked as CNAs on 20 and 22 occasions, respectively,
while in contrast Pittman and Kusterman worked as
CNAs on 1 and 0 occasions, respectively. In further con-
trast, the record discloses that during the same time
period, Johnson, who worked on both first and second
shifts, was scheduled as a CMA on 8 occasions and as a
CNA ; on 2 occasions, second-shift employee Frey was
scheduled as a CMA on- 23 occasions and never as a
CNA; third-shift employee Tazelaar was scheduled as a
CMA on 22 occasions and never as a CNA; and third-
shift employee Riley was scheduled as a CMA on 6 oc-
casions and never as a CNA. Thus, as further indicated,
the Respondent's scheduling records establish that the
only significant rescheduling of CMAs between August
27 and October 16 occurred among the first-shift CMAs.
I am in agreement that the Respondent has failed-to es-
tablish its defense that the Respondent treated prounion
and other CMAs consistently
The Respondent's 'evidence concerning the decision to
abolish the CMA position was also offered through
Kathleen Kelley, staff development coordinator and ad-
ministrative assistant .2 i Kelley was not questioned con-
cerning the reassignment of individual CMAs during the
period immediately following the August 27 meetings,
and there is also a conspicuous absence of any record
evidence as to what was discussed at the time it was de-
cided to abolish the CMA position. Thus, although
Kelley testified that she drafted a memo to Administrator
Jadoo in September and that the board of trustees made
a decision sometime thereafter, neither Jadoo, nor the
Chairman of the Respondent's board of directors Donald
Oswald was questioned as to their reasons for abolishing
the CMA position.
At this time it should again be noted that Caron, Gils-
dorf, and Schmidt were known to be strong supporters
of Local 113,22 and that the duties and/or hours of work
of these employees were markedly changed immediately
following the inception of the Union's organizing cam-
paign, and these facts alone warrant the inference that
the changes were motivated by unlawful considerations.
Moreover, Caron's unrebutted testimony establishes that
at the time Juanita Reilly informed her that she would
have to start working weekends (in 'early September)
Reilly then also asked her whether she supported the
Union, as aforestated Furthermore, at the time Caron
was first assigned'to work as a CNA in early September,
Reilly accused her and another employee of being the in=
stigators of employee union activity, as also' set -out pre
viously herein Thus, on each- occasion when-Reilly dis-
cussed changes in hours and duties with Caron, she en-
gaged'in conduct which violated the-Act'and which also
21 Kelley testified that Mary Mullane, who joined the Respondent on
February 1, had previously worked in homes where they had phased out
CMAs because they felt they were not doing the professional job that an
LPN , would do , and that the Respondent ' s staff -had various meetings
thereafter to discuss the subject Moreover , that a final decision on this
matter was made by the board of trustees in September or October and
that she sent a memo to Jadoo on this subject See R Exh 17
22 Carole Cole readily admitted that she was aware of the union sym-
pathies of Caron , Gilsdorf, Schmidt , Lawson, Cohetiour, and Bailey - . .
1253
clearly evidenced union animus. Finally, Schmidt's unre-
butted testimony establishes that in April 1982, Reilly in-
terrogated her concerning her support for the Union, as
aforestated, and within a week or .so thereafter Mary
Mullane told Schmidt that she had been discriminated or
harassed by orders from Administrator Jadoo, as previ-
ously indicated herein, and which testimony also stands
undenied.' In essence, this record clearly reveals that the
two highest nursing department supervisors, on two sep-
arate occasions, told Schmidt that the Respondent had
discriminated and was continuing to discriminate against
her because of Schmidt's union activities, and, of course,
in violation of Section 8(a)(1) of the Act, as alleged.
I am in agreement that the General Counsel has made
a prima facie case which established that the Respondent
discriminated against employees- Caron, Gilsdorf, and
Schmidt by changing their duties and/or hours of work,
in violation of Section 8(a)(1) and (3) of the Act as al-
leged. Moreover, I have also found that since the record
evidence establishes a direct causal connection between
the discriminatorily motivated changes in Caron's duties
and hours, and the quitting of her employment, the Re-
spondent, by, its unlawful conduct, also constructively
discharged Sharon Caron on, September 9 in violation of
Section 8(a)(1) and (3) of the Act, as alleged 23 This is
particularly true where, as here, the Respondent has em-
barked on a systematic course of unlawful conduct for
the evident' purposes of punishing-its employees because
of their union activities and of forcing them to quit their
employment, and this is especially so considering the un-
denied statements attributed to Mullane and - Reilly.
Moreover, for the reasons set forth above, the Respond-
ent has failed to rebut the General Counsel's prima facie
case by establishing that the Respondent would have
made the changes in_question in the absence of employee
union activity. Wright Line, 251 NLRB 1083 (1980).
Similarly, the record evidence is also insufficient to es-
tablish that the-Respondent abolished the CMA position
based on Kelley's recommendation. Rather, and particu-
larly in the absence of any testimony by those who actu-
ally made the decision; the.evidence suggests that the
Respondent seized upon this recommendation in an effort
to conceal its earlier unlawful conduct . Finally, as also
pointed out, it should be noted that the Respondent's de-
fenses are shifting-thus, through Carole Cole, the Re-
spondent attempted to 'show that the reassignments of
CMAs=were made-because of scheduling difficulties, but
through. Mullane - and Kelley the Respondent attempted
to show . that the reassignments and changes were made
to improve patient care. This shifting of defenses adds
additional 'support to the General Counsel's prima facie
case and.undermines the Respondent's attempt to rebut.
za For purposes of review, Caron testified that on September 9, she
had been assigned'duties again as a nurses aide , and this made her ex-
tremely angry , and' she then informed Mary Mullane that they were
doing these things to "agitate" them because of the Union and that she
had not been hired to be a nurses aide, and that she "wasn't going to take
any more of this crap," and then punched out and left The Respondent
contends that she walked off the job because she had been assigned to
work as a CNA due to shortage of staff I have rejected this contention
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is alleged that the -Respondent changed the hours of
work and by such conduct caused the termination of
Carole Lawson.
Carole 'Lawson applied fors a position as an LPN -with
the Respondent during the fall of 1979, but.because-she
was a student at the time and was unable to work a•regu-
lar schedule, the Respondent did not offer her a job.
However, in January' 1980, the then- director of nursing
again called Lawson, but once more she reiterated her
inability to work a regular schedule and, in particular, to
work every other. weekend. However, the director of
nursing then hired Lawson with the understanding that
Lawson was to call the Respondent every 2 weeks and
indicate which days she would be available Thereafter,
Lawson worked an average of 3 to 4 days per month
and generally on the weekends She usually served as
charge nurse on the second floor but, if one of the Re-
spondent's regular LPNs or registered nurses (RNs) was
scheduled to work at the same time and on the same
floor as Lawson, she would do medications and treat-
ments. It appears that-Lawson continued to work-on this
basis until about October 10.
Lawson voted in the-Board election conducted on Oc-
tober 9, and at the conclusion of the election she went to
the polling area to watch the counting of ballots-there
were two large tables in the. room-one. was used by
Local 113 representatives and the other was used by the
Respondent's representatives, and Lawson sat 'at the
Local 113 table. -
The following day, October 10, Lawson was sched-
uled as a medications aide on the second floor'and Peggy
Tauzell, a part-time licensed practical nurse who normal-
ly worked as charge nurse on the first floor, was sched-
uled as the charge nurse on' the second floor. Lawson
testified without contradiction that this • scheduling ar-
rangement had never occurred previously.
On October. 13, Lawson called Scheduling Coordina-
tor Carole Cole to advise her that d inng the next 2
weeks she could only work on Saturday, October 24.
Cole replied that she would have -to call her back, but
about 5 minutes later Director of Nursing Juanita Reilly
called, and informed Lawson that she could not work
the Saturday in question and that nurses must work
every other weekend. Lawson then told Reilly she was
unable to do that for the reasons already known. Lawson
testified-that "[a]l] she [Reilly] said was, that there had
been a change, but she never did answer my question
about if they needed me that day." Lawson further-testi-
fied that in almost 2 years of employment„ she. had never
previously been told not to come to work -on a day she
was available.24
About October 23,° Lawson went to the Respondent's
facility to pick up her paycheck and, in so doing, noted
that a nursing pool LPN was scheduled to work in her
24 As indicated, unlike -other employees who preferred to have their
weekends off, Lawson generally wanted to work only on the weekends
Thus, the Respondent could utilize her services on an essentially on-call
basis rather than rely on the far more costly services of a nursing pool
LPN . .
place for Saturday, October-24.25 She then also had a
conversation with Lionel Jadoo informing him that she
had wanted to work Saturday and wondered what was
going on, but Jadoo just kept repeating to her-that his
attorney said "he shouldn't be speaking to me "26
By letter dated October 27, Juanita Reilly informed
Lawson that unless she 'agreed to work every other
weekend; she was terminated as of October 27. Accord-
ing to the letter the policy of= requiring- all.nursmgr.de,
partment employees to work every other weekend had
been implemented on September - 1-almost 2 months ear-
lier.
Counsel for the Respondent points out that Lawson
was` an LPN who worked a very irregular schedule on a
fill-in basis, and - when management determined that it
must require all employees to work every other, weekend
to meet patient needs and to eliminate favoritism, it iden-
tified Lawson as one of those employees who should be
required to work weekends and, accordingly, Lawson
was asked to work weekends along with all other em-
ployees,so situated
As noted, the Respondent defends its action as to
Lawson on the ground that it simply imposed on her the
same requirement as applied to all other employees and,
in support of this contention, the Respondent introduced
a number, of memoranda concerning other employees
who were told they had to start working every other
weekend. The General Counsel argues that the dates of
these memoranda in relation to other events are highly
significant in evaluating the Respondent's defense-thus,
the earliest memorandum (R. Exh. 13) concerns alleged
discriminatee Mavis Cohenour and is dated September 1,
but no further memoranda of this kind were written until
September 18-the day after the first amended charge in
this proceeding was served on the Respondent, and on
that-day memorandums (R. Exhs. 9 and 10), concerning
the weekend work of two employees, were drafted. On
September 25, -another memorandum (R. Exh 16) was
drafted, and on October 13, a memorandum '(R Exh 14),
concerning Lawson, was drafted.
The General Counsel further' argues that from the
above the pattern that emerges is that the alleged every-
other-weekend. policy was applied, to discriminatees
Caron and Cohenour within a week following the
August 27 meetings concerning the Union, as aforestat-
ed-that the policy was not applied to any other employ-
ees until immediately after the filing of the first amended
charge; and that the policy was applied to Lawson only
after the • Respondent learned of her support for Local
113. Moreover, that Carole Cole. admitted on cross-ex-
amination that:the^ Respondent did not apply its.alleged
every-other-weekend policy to Lee LeSage, an antiunion
LPN, who, like Lawson, essentially wrote out her own
25 The Respondent's replacement of Lawson with a nursing pool LPN
significantly increased the cost of care without providing any increase in
the quality of care
26 On October 22, the Union filed its second amended charge This
charge, which was served on the Respondent on October 23, specifically
listed-Lawson as an alleged discriminatee '
ST' PAUL'S CHURCH • 1255
schedule until sometime after it applied the alleged
policy to Lawson 27
What is most glaring in the situation and circum-
stances involving Lawson is that she was one nurse who
generally wanted and desired to work on Saturdays or
weekends when the Respondent allegedly needed all the
help it -could get, as many -other employees continually
insisted that their weekends remain free Yet, after being
specifically identified as a supporter of the Union,
Lawson.is•'-then -discharged. when,,4at•'the same time, she
was still able to work on certain Saturdays and, in so
doing,- alleviating the shortage of help problems on
weekends that management people were complaining
about. '
In view of the foregoirig, and particularly in view of
the timing of the application-of the alleged every-other-
weekend policy to Lawson, the inconsistency in the ap-
plication of that policy, and the Respondent's demon-
strated animus toward employees who supported Local
113, a prima facie,case has been established that the Re-
spondent discriminated against Lawson because of her,
union activities; that the Respondent has failed to rebut
the General Counsel's prima facie case, and that, there-
fore, it is found that the Respondent, by imposing new
scheduling requirements on Lawson, violated Section
8(a)(1) and (3) of the Act as alleged. Wright Line, supra..
Moreover, since the Respondent conditioned Lawson's
continued employment on compliance with these require-
ments, and since management was fully aware that
Lawson was unable to do so, the Respondent also con-
structively discharged Lawson on October 27 in viola-
tion of Section 8(a)(1) and (3) of the Act, as alleged.
' It is alleged that in late August or early September the
Respondent changed the hours of work of Mavis Cohen-
our, issued her two written warnings, and about October
13 suspended Cohenour for.3 days. -
Mavis Cohenour worked for the Respondent as a CNA
from sometime in 1976 until she quit in December 1977
but, during the fall of 1978, the Respondent asked her to
return It appears that Lionel ,Jadoo originally, proposed
that she work 1 weekend per month but, after consulting
with her husband, Cohenour turned down the job be-
cause of the weekend work Administrator Jadoo then
proposed that she work only 5 days 'per week and no
weekends, and Cohenour agreed to return on this basis
and did so in October 1978, and at the outset her hours
were 6.30 a.m. to 3 p m. Cohenour lived approximately
50 miles from the Respondent's facility and did not have
a driver's license, and rode to work each day ' with her
husband who worked in'Minneapolis. However, it soon
developed that since her husband did not have to be at
work until 8 a.m., Cohenour was, frequently late for
work, and for this reason, management agreed to change
her starting time from 6.30 to 7:30 a.m., but her quitting,
time remained the same and she was considered a part-
time employee thereafter.-Following her husband's retire-.
ment in 1979, Cohenour rode to work with her sons who
'27 Later in her testimony Cole stated that during August , September,
and October , nurse LeSage was working every other weekend However,
the Respondent 's own records disclose that LeSage worked I weekend in
August, 1 weekend in September , and 1-1/2 weekends in October See
G C Exh 3 -
also worked at jobs in Minneapolis and whose jobs start-
ed at 8 a.m. Cohenour continued working the same
schedule until September, and she did not receive a driv-
er's license until November.
Cohenour attended the union meetings in August,
signed an authorization card, and also testified that she
distributed four or five cards to other employees Super-
visors Carole Cole and Mary Mullane admitted that they
were aware that Cohenour had leanings toward the
Union. Cohenour was also the Union's observer, at the
Board election on October 9
It appears that,sometime in early August, Assistant Di-
rector of Nursing Mary Mullane gave Cohenour a verbal
warning for failing to follow proper procedures for using
a patient transfer belt. As a penalty Cohenour and two
other, employees-one of whom was alleged discrimina-
tee Julie Bailey-had $5 deducted from their paychecks
for the pay period ending August 8 The three employ-
ees then complained to management that ,the entire
matter was based on a misunderstanding, whereupon
Jadoo agreed to rescind the fine and refund their money
Some time later-Cohenour was not sure of the date
except that it occurred after the August 27 meetings-
Director of Nursing Reilly gave Cohenour a written
warning dated August 14 (G.C. Exh. 14). The warning
concerned both the transfer belt incident and allegedly
taking too -long on a break. 28 It was the first written
warning Cohenour. had received throughout her entire
employment.29
.Shortly after the August 27 meetings , wherein union
matters were discussed with management, as aforestated,
Reilly informed Cohenour that she would have to start
working every other weekend. Cohenour testified.as fol-
lows:
Q What do you recall being said?
A. She called me down and told me that I had to
start working weekends because they were short of
help.
Q. Did you make a reply to that?
A. I said I didn't believe her, I believed it was
because I had something to do with the' Union, and
Mr. Jadoo was trying to get me to quit
Q Did she reply?
A. She said that wasn't true, 'they were short of
help and they needed me on the weekends.
Q. Did you reply?
A. I said I didn't believe her because I said I fig-
ured this was Mr. Jadoo's, he knew I didn't want to
work weekends and I threatened to quit if he ever
made me work weekends. He had often asked me to
28 On the matter of taking too long a break, Cohenour testified,- "I
tried to explain to her that when we came back from lunch we punched
out on the second floor and a lot of times when you are coming by the
desk, patients stop you and want you to do this or that, and you stop and
help them and forget to punch in, and then you think of it later on and
you go and do it She [Mullane) said yes, she understood "
29 The Respondent's records and testimony disclose that Cohenour
was late, sick. or absent from work on 13 occasions in 1979, 14 occasions
in 1980, and 13 occasions in 1981 but, as noted, Cohenour had never been
reprimanded for any reason prior to the inception of the Union's organiz-
ing campaign '
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work weekends and I threatened so he said-he was
only kidding So I told her, I believe this was his
way of trying to' get rid of me, but I said I would
be there if I had to walk -
Cohenour testified that she and Reilly also discussed the
same subject the following day.
I asked her why he [Jadoo] was doing that to me,
making me work weekends and she said that she
was sorry, but they were so short they needed me.
Then she asked me about the Union and I said yes,
I was one of them. I thought it was my right. Then
she said, "Well, you girls will never get what you
think you are going to get:" Then she told me, be-
sides, she had to make' me work weekends because
there was a complaint that I hadn't had to work
any weekends. I said- I didn't believe her and she
said that one of the girls that I thought was my best
friends was the one that complained. I asked her
who and she said -Julie Bailey I said that she was
trying to make enemies between Julie and I and that
[Local 113 representative] Lorne [Johnson] had told
us that they would do this. She said that Julie
Bailey was a very good aide and she wouldn't want
to lose'her -
Although the matter had never been discussed with her,
Reilly also changed Cohenour's starting time from 7:30
to 6:30 a m. and, since Cohenour had been riding to
work with her sons who did not have to be at work until
8 a.m. each day, Cohenour was forced to stay with her
mother in St Paul 5 days per week. Cohenour further
testified that after August Jadoo's attitude toward her
changed markedly.
This record further shows that Cohenour served as the
union observer at the Board election on October 9 and,
following the election, Lionel Jadoo approached her and
told her as follows -
A He [Jadoo] came in and wanted to shake
hands. He said we should let.bygones be bygones
and he hugged me and kissed,me on the cheek and
I told him that I was ready to let bygones be by-
gones. He said we should get back to work, like we
had been. I said fine, that was fine with me, I only
did what I thought was right. He took me by the
hand and said, come on, let's go upstairs and see
Donna Gilsdorf. So we went to the stairway and
we got in the stairway and I said, I told him I
would never had joined the Union if he wouldn't
have started to mess around with my hours and
weekends. He said he knew, but his lawyer told him
to. Then I said, well, you know I am going to fight
you to get my weekends back and he said, I know,
let's go see Donna. We went up and he put his arms
,around Donna and told her the same thing he told
me.
About October 11 Reilly issued Cohenour a 3-day sus-
pension for allegedly overextending her break by 5 min-
utes (G.C. Exh. 15). Cohenour denied having been late
on the occasion in question. She also testified that Jadoo
had told them "lots of time" that as long as they had fin-
ished this work, he did not mind if they sat an extra 5
minutes or so longer.
Counsel for the Respondent points out that in August
Cohenour was issued a warning for failure to wear a
transfer belt, as required by the Respondent for patient
safety, and also for taking overly long lunch hours. In
October she received another warning for overly long
breaks and was suspended without pay for 3 days. Both
warnings were based on the observations of Mary Mul-
lane, assistant director of nurses, and both instances were
clear violations of the Respondent's policies Moreover,
Cohenour's first warning was given before the Respond-
ent had any knowledge of union activities, and the
second warning was given because of a clear violation of
policy, even after the administrator had spoken to all
nursing staff about the importance of being on time.
The General Counsel introduced evidence of a number
of previous warnings issued to Cohenour regarding ab-
senteeism and tardiness, but which 'did not result in any
previous suspensions, as aforestated. The Respondent
does not dispute those instances of absenteeism and tardi-
ness existed or that no discipline was given at that time.
However, as further argued by the Respondent, the
record is clear that, beginning in the summer of 1981,
management was embarked on a program of more care-
fully and consistently enforcing its personnel policies.
This program was a result of an internal review of per-
sonnel files in May, as well as a complaint of favoritism
in scheduling and discipline registered by Julie Bailey in
late July. As a result, a system of monitoring absentee-
isms and other violations of personnel policies was insti-
tuted and the progressive discipline system began to be
enforced in earnest beginning in early to mid-August,
prior to the Respondent having any knowledge of union
activities, and it continued that course after union activi-
ties became apparent.
Counsel for the Respondent further acknowledges
that, at some point during late August or early Septem-
ber, Cohenour was also asked to begin work at the
normal starting time for nursing staff-6.30 a.m. rather
than at 7.30 a.m., as she had been formerly permitted to
do for family reasons She was also requested to work,
every other weekend as was the normal scheduling pat-
tern for all other employees in the nursing department.,
Two factors led to-that requirement: the first was the
same, as discussed above with regard to the warning she
received for overly long breaks, and the second factor,
involved was the need for greater coverage of nursing
staff to meet the requirements of the patients in the
morning and on weekends. Moreover, at the time the
Respondent resolved to require all employees to work
every other weekend, it came to light that five employ-
ees in the nursing department were not being so sched-
uled (Caron, Cohenour, Tauzell, Lawson, and Corcoran).
When this information was brought to light after the
complaint registered by Julie Bailey, management re-
sponded by taking steps to monitor discipline and to es-
tablish consistent scheduling patterns This record clearly
ST PAUL'S CHURCH 1257
shows that each employee who was not working the
general schedule was requested to do so 30
Counsel for the Respondent explains that Cohenour
had been permitted to begin work at 7:30 a.m., rather
than 6:30 a m., because she lived in Wisconsin and rode
to work with her husband who was unable to get her. to
work by 6.30 a in. When it came to the attention of the
Respondent's administrator that she had her own trans-
portation beginning some time in August, the special rea-
sons for permitting her to start work at 7.30 a.m had ap-
parently been eliminated and she was requested to begin
work at 6.30 a.m , as other employees were
In conclusion, counsel for the Respondent points out
that "perhaps"•Cohenour had been one of the favored
employees that Julie Bailey complained about on July 31,
and that, as such, when the Respondent resolved to treat
all of its employees more consistently, some of the spe-
cial privileges she enjoyed were no longer available to
her. Again the record is clear that the Respondent deter-
mined to take these steps with regard to all employees,
regardless of union leanings, and had determined to take
this course of action prior to any knowledge of union ac-
tivity It then continued on its course, even though union
activity began about the same time it started to take
action. Counsel for the Respondent contends that the Re-
spondent's policies were -enforced evenhandedly and
without regard to union activities.
Turning now to my final conclusions about Cohenour.
First, in regard to the change in Cohenour' s starting
time, Scheduling Coordnator Carole Cole admitted on
cross-examination that Cohenour was the only part-time
employee whose hours were changed during the relevant
time period, and that the Respondent continued to
permit other employees (so-called short shift employees)
to work on a part-time basis with different hours.
Second, as to the weekend change, Lionel Jadoo ad-
mitted that he solicited Cohenour to return to the Re-
spondent's employ, but then testified that, he permitted
her to do so only with the understanding that her no-
weekends schedule was "temporary." However, it is
noted that this alleged, and now -so-called temporary ar-
rangement and schedule lasted for about 3 years. Similar-
ly, Jadoo's unsolicited testimony that' Cohenour told him
she was driving to work without a license is not cred-
ited. Cohenour testified that she did not get a driver's li-
cense until November and never drove a car without a
license.
For present purposes, and even assuming that Cohen-
our (and alleged discriminatee Bailey) violated the Re-
spondent's transfer belt policy in early to mid-August,
the facts remain that Jadoo recognized that this infrac-
tion was based on a misunderstanding of the policy and
that he rescinded the discipline However, shortly after
the August 27 meetings relative to the Union, Reilly pre-
sented Cohenour with a written warning concerning the
belt incident and for allegedly taking too long on a
break. Two days after Local 113 won the election, Reilly
then suspended Cohenour for 3 days.for allegedly taking
too long on a break. Since Reilly did not testify, the only
30 See R Exhs 9, 10. and 12-16
evidence about her motivation in.issuing this suspension
is the disciplinary notice itself.
In the final analysis, this record reveals that the Re-
spondent wanted very much for Cohenour to return to
its employ in 1978, and she accepted only on the condi-
tion that she would not' be required to work weekends 31
Thereafter, Cohenour worked as a part-time employee
with all weekends off for almost 3 years prior to August,
but within days after the'Respondent learned that Local
113 had demanded recognition, Reilly then told Cohen-
our on two occasions that she would have to work
weekends-also on the second occasion, Reilly • ques-
tioned Cohenour concerning her union sympathies, in
violation of Section 8(a)'(1) of the Act I am in agreement
that the only plausible reason for requiring Cohenour to
begin working weekends at that particular time is that
the Respondent expected her to quit as a result.32 As
suggested by the General Counsel-, if working weekends
was not enough, then disciplining her, suspending her,
and requiring Cohenour to start work earlier-thereby
depriving her of her ride to work-surely would be
enough, but obviously the Respondent underestimated
Cohenour's fortitude.
Counsel for the Respondent maintains that beginning
in the summer of 1981, prior to any union activity, man-
agement embarked upon the program to more consistent-
ly enforce its personnel policies and that Cohenour was
one of the employees so affected. Even assuming or ac-
cepting such facts, it nevertheless appears clear to me
that, in carrying out this new enforcement program, the
real motivation in assigning penalties and discipline in
connection therewith was the consideration of whether
the employee was anti or pro union Cohenour was defi-
nitely prounion and the Respondent was well aware of
it. Even Jadoo recognized this situation when he agreed
with Cohenour in their conversation following the Board
election to the effect that she never would have pressed
her union activity if management had not started "to
mess around" with her hours and weekends Jadoo re-
plied that "he knew," but had been advised otherwise.
In the situation here, Cohenour had an unblemished
disciplinary record covering several years of employ-
ment and admittedly was a hard, working nurse and if
late, absent, or tardy nothing was said or done about it
prior to her union activity. The changes in her hours and
the discipline imposed on her occurred shortly after the
inception of the Union. The credited evidence shows
that the written warning for, the alleged violations of'the
transfer belt.and break policies was given to Cohenour
after the August 27 union meetings , but concerned
events occurring prior to those meetings Moreover, and
particularly in view of the timing of the imposition of the
(alleged) every-other; weekend ,policy on Cohenour, the
inconsistent application of that (alleged) policy to other
employees, and the fact that the Respondent offered no
direct evidence as to Reilly's actual motivation in disci-
3i. Jadoo admitted that Cohenour was a good employee and a hard
worker
32 It will be recalled that Cohenour testified that on several occasions'
Jadoo asked her if she'would work weekends On each occasion Cohen-
our threatened to quit, and Jadoo then replied that he was just kidding
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plining and suspending, the Respondent has failed to es-
tablish that it would have taken the same actions in the
absence of Cohenour's union activity Wright Line, supra.
Accordingly, it is found that the Respondent changed
Cohenour's hours, and disciplined and suspended her, in
violation of Section 8(a)(1) and (3) of the Act, as alleged.
It is alleged that on September 8 the Respondent dis-
criminately discharged Julie Bailey.
Julie Bailey was employed by-the Respondent as a
CNA from 1979 until September 8 As noted previously
Bailey was one of the original employees instrumental in
the Union's organizing campaign and identified herself as
a Local 113-supporter at the first of the August 27 meet-
ings. She also signed an authorization card for the Union
and distributed cards to other employees. In fact, Sched-
uling Coordinator Carole Cole admitted that she was
aware that Bailey was for the Union and, on cross-exami-
nation, Mary Mullane admitted knowing that Bailey was
a strong supporter of the Union -
Sometime toward the end of July, Bailey and Director
of Nursing Juanita Reilly met to discuss Bailey's work
evaluation ratings. Reilly then informed Bailey that she
would get a 5-cent-per-hour raise (the maximum being 10
cents), but she needed to bring in a medical history from
her doctor. As noted, the evaluation form completed by
Reilly indicates complete and.full satisfaction with the
quality of Bailey's work, and Reilly even wrote on the
evaluation sheet that Bailey was an "Exceptional
worker-An Asset to [Respondent]-cooperative, will-
ing--well liked by patients" (G.C. Exh. 6). Bailey also
discussed the evaluation form with Administrator Jadoo
and, in so doing, protested that she deserved a larger
raise, that others had been tardy or absent as often as she
had, and that it was unfair to penalize her and not others
as well.
It appears that on September 8, the date of her dis-
charge, the morning schedule began as it generally did,
but on this day Bailey had 11 patients to take care of
whereas usually she was assigned 7 or 8. Prior to 7:30
a.m, Bailey checked up on a patient named Selina Quinn
and found her asleep. Breakfast trays then began arriving
on the floor about 7-30 a.m and, although each of the
CNAs had specific residents assigned to them, they nor-
mally distributed the trays without regard to these as-
signments. In accordance therewith, Bailey and the other
CNAs passed trays and helped feed residents until about
9 a.m. Shortly thereafter Bailey stopped by Quinn's room
for the second time, but again found her sleeping and she
then went on her morning break. Following the break,
Bailey returned and saw that Quinn's call light was on
and accordingly went to her room and -found Charge
Nurse Teresa Hill taking Quinn to the bathroom. Hill
then asked Bailey if she knew whether Quinn had re-
ceived a breakfast tray. Bailey replied ' that she did not
know, and Hill then said the same thing had happened
the day before. Bailey and Hill then cared for Quinn and
ordered a breakfast tray -for her. By 'this time it was
about 9.30 a.m.
At noon that day, Assistant Director of Nursing Mary
Mullane asked Bailey to come to her office. Mullane
gave Bailey a written warning (G.C. Exh., 9) concerning
Quinn's failure to receive her breakfast. Bailey told Mul-
lane that she felt the discipline was unfair and refused to
sign the warning notice. Mullane said she did not know
what would happen as a result of Bailey's refusal. Bailey
then asked what she meant and Mullane replied that
Bailey might be terminated Bailey and Mullane- then
went to the business office to make a copy of the warn-
ing notice, at which time Mullane told Bailey that Juani-
ta Reilly might want to speak with her but, after check-
ing with Reilly, Mullane told Bailey to go to lunch.
Later in the day, Reilly called Bailey in and told her
that she had been going through Bailey's file, and then
gave her a second warning (G.C. Exh. 10) concerning
tardiness. Reilly also gave Bailey a termination notice
(G.C. Exh. 11) which listed Bailey's previous warnings
and which set forth the reason for the termination-
You are being terminated as of September 8, 1981
for the following infractions-
You have been absent 11 times since 1-8-81.
You have been late 8 times since 1-1-81.
Reilly then told Bailey that she was terminated. Bailey
subsequently -received a copy of a separation form (G.C
Exh. 13) completed by the Respondent and sent to the
State of Minnesota concerning Bailey's eligibility for re-
ceiving unemployment compensation benefits. The form
indicated that Baily had been "discharged for absentee-
ism-tardiness," and Bailey was subsequently denied un-
employment benefits. The claims deputy found that
Bailey had been discharged "due to patient neglect" (R.
Exh 6). Bailey did not appeal this finding and no hearing
was ever held.
It is the contention of the Respondent that Bailey was
discharged because she failed to give morning care to a
patient assigned to her by 9 a.m., when she then went on
a break. Both Mary Mullane and Lionel Jadoo testified
that such an occurrence was contrary to the Respond-
ent's,patient care policies, contrary to State Health De-
partment regulations regarding the timing of meals, and
contrary to the Patients' Bill of Rights, and that this con-
duct, under the Respondent's policies, was grounds for
immediate termination without prior warning, and that
Bailey could have been terminated on that basis alone.
It is also the Respondent's position that Bailey was as-
signed a normal load of patients on the day here in ques-
tion, but she failed to ensure that the patient, Selina
Quinn, was awakened and prepared for breakfast, as re-
quired by state law and the Respondent's policies, and
that such behavior constituted gross misconduct, punish-
able by immediate termination. Mary Mullane testified
that she would have responded to any other similar inci-
dent in like manner had such a situation been brought to
her attention but, with the exception of the incident with
Bailey, no such incident had been brought to her atten-
tion It is pointed'out that this instance was brought to
the attention of Mullane by the dietary supervisor who
was keeping track of the patient's intake for medical rea-
sons, and it was not reported by the nursing supervisors.
Such circumstances may be responsible for the fact that
ST PAUL'S CHURCH - . - 1259
other- purported similar incidents were not dealt with in
a similar fashion by management.33
It is further noted by the Respondent that Bailey had
received a number of previous warnings for other viola-
tions of the Respondent's policies. Carole Cole, as staff-
ing coordinator, had occasion to handle all nursing em-
ployee timecards, and she testified that it was only
Bailey and one or two other employees, who seemed to
fail to deal with their timecards appropriately. Moreover,
that at least two of the warnings received by Bailey
were prior to any knowledge -of ' union activity and,
when the incident with regard to patient neglect` was
added to that record on September 8, it was clear that
the only action to be taken was termination.
In summary, counsel for the Respondent points out
and argues that Bailey was discharged for actions which
would constitute grounds for immediate discharge, even
if no prior warnings had been in her file; but, in- fact,
Bailey had a number of previous warnings which the Re-
spondent, in its new program of consistent enforcement
of personnel policies generated. Ironically , at least in
part, the Respondent did so because of Bailey's own
complaints with regard to favoritism.
Turning now to my final conclusions. Assistant Direc-
tor of Nursing Mary Mullane testified that she -regarded
the Quinn and Bailey incident as "gross patient neglect,"
but Caron and Schmidt said that it happened quite often.
Moreover,' Mullane could recall on cross-examination
very little about the actual circumstances of Bailey's dis-
charge. For example, Mullane first testified that she ter-
minated Bailey, but later testified that she could not re-
member whether she or Reilly terminated Bailey 'that it
was a point decision, that she told Bailey on the morning
of September 8 that it was possible she would be termi-
nated, that she could not recall when during the day the
conversation occurred; that she could not recall what
happened after this conversation; that she did not know
whether Reilly talked to Bailey thereafter; and finally
that it was Respondent's policy to terminate employees
after the third warning.
As more fully detailed by the General Counsel,' it' is
clear from this record that Juanita Reilly made the deci-
sion to terminate Bailey. Thus, in evaluating the Re-
spondent's real motivation, particular attention must be
paid to what Reilly said and did contemporaneously with
the discharge. As noted previously, Reilly gave Bailey a
glowing evaluation in July and within-,a few days prior
to Bailey's discharge, Reilly told Mavis Cohenour that
"Julie Bailey was a very - good aide and - she [Reilly]
wouldn't want to lose her." At this point in time Reilly
must have been aware of any absenteeism or tardiness
problems Bailey may have had. As also indicated, in
view of Reilly's excellent evaluation of Bailey and her
statement to Cohenour, it is obvious that the Respondent
had condoned whatever problems may have existed, and
although the incident involving Selina Quinn occurred
33 Sharon Caron testified that residents or patients sometimes missed
breakfast on the average of about once a week-"sometimes once a day,
it varied " Kathi Schmidt testified that patients would miss breakfast once
or twice a month , and she was not aware of any employee being disci-
plined as a result of it When discovered , the kitchen was contacted and a
tray would then be sent up
on September 8, the record is clear that this was not. the
reason for Bailey 's discharge . Rather, as established by
Bailey's termination notice and separation form, Reilly
actually discharged Bailey for absenteeism and tardiness
and, in doing so, Reilly departed from the Respondent's
practice , as testified to by Mullane, to terminate on the
third warning concerning a-violation As pointed out, the
warning notice (G.C. Exh 10), concerning . tardiness and
absenteeism that Reilly gave Bailey on September 8, spe-
cifically - indicates that it was a second warning There-
fore, by the present contention that Bailey was dis-
charged because of the Selina Quinn incident , the Re-
spondent is exhibiting shifting defenses , and to the extent
that the Respondent is claiming Bailey was discharged
for absenteeism and tardiness , it is departing from its
own policy of discharging -on the third occurrence
In the final analysis, Bailey had worked for the Re-
spondent' for several years and was extremely' well
thought of as duly reflected in her most recent evalua-
tion rating . She was also a . strong supporter for the
Union and management admittedly knew it. About this
time her problems started Moreover , the. Respondent's
defenses are shifting ,- as aforestated , and since in dis-
charging Bailey, the Respondent departed for its own
third-warning policy , it must be concluded that the. de-
fenses are pretextual . Accordingly , I have found that
Bailey's discharge violated Section 8(a)(1) and (3) of the
Act.34
IV. 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 take certain affirmative
action designed to effectuate the policies of the Act- -
Having found that the Respondent discriminatorily dis-
charged"Julie -Bailey, Carole Lawson, and Sharon Caron,
I shall recommend that the Respondent offer them imme-
diate and full reinstatement to their former or substantial-
ly equivalent positions, without prejudice to their seniori-
ty or other rights and privileges,- and make them whole
for any loss of earnings they may have suffered by
39 It should be noted that all facts found herein. are based on the
record as a whole and on my observation of the witnesses The credibil-
ity resolutions have been derived from a review of the entire testimonial
record and exhibits with due regard for the logic and probability, the de-
meanor of the witnesses, and the teaching of :VLRB v Walton Mfg Co,
369 U S 404 (5th Cir 1961) As to those witnesses testifying in contradic-
tion of the findings herein, their- testimony has been discredited, either as
having been in conflict with the testimony of reliable witnesses or be-
cause it was in and of itself incredible'and unworthy of belief All testimo-
ny has been reviewed and weighed in the light of the entire record It should
also be noted that in several, instances I have not credited the testimony
of the Respondent's witnesses where there was a basic conflict in events
and circumstances-their testimony in such areas revealed considerable
discrepancies and was also inconsistent at times , and certainly without the
ring of sincerity, as frequently demonstrated by the witnesses for the
General Counsel Carole Cole gave highly inconsistent answers on cross-
examination , in several instances Mary Mullane could not recall with any
specificity what actually took place and especially in relation to the dis-
charge of Bailey. Lionel Jadoo struck me as quite unsure and evasive on
occasions, and Juanita Reilly, who was directly or indirectly involved
with almost each incident, did not testify In certain instances the unde-
med statements and actions attributed to Reilly in themselves tended to
prove the General Counsel's case, as all previously set forth and detailed
herein
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason of the discrimination against them by payment of
a sum of money equal to that which they would have
normally earned from-the date of their discharges, less
net earnings , during said period . All backpay provided
herein shall be computed with interest on a quarterly
basis, in -the manner described by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest
computed in the manner and amount prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977) 35 In the .same
manner make whole Mavis Cohenour for her 3-day dis-
criminatory suspension -
CONCLUSIONS OF LAW
1. -The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Willie ' Sager and Sue Daul are agents within the
meaning of Section 2(11) of the Act.
4. By engaging in conduct described in section III,
above, the' Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed36
ORDER
The Respondent , St ' Paul 's Church Home , Inc., St.
Paul, Minnessota , its officers , agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees regarding union activities,
memberships, and sympathies.
(b) Threatening employees with loss of benefits be-
cause of their union activities.
(c) Promulgating and/or enforcing policies selectively
and disparately in the posting of notices in a manner cal-
culated to interfere with their Section 7 rights
(d) Freezing its employees ' wages because of their
union or other concerted protected activities.
(e) Creating the impression of surveillance of employ-
ee union activities.
(f) Informing cr admitting to employees that- their
hours and. duties have been changed because - of their
union activities and/or telling employees that the Re-
spondent has discriminated against them because of their
union activities.
(g) Informing employees that an announced wage in-
crease could - not be given because of union activity, and
revoking such wage increases.
(h) Changing the hours and/or duties of its employees,
suspending , giving warning notices , discharging, or oth-
erwise ' discriminating against its employees because they
engage in union or other protected activities.
(i) In any like or related manner interfering with, re-
straining , or coercing employees -in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Julie Bailey , Sharon Caron, and Carole
Lawson immediate and full reinstatement to their former
jobs and make them whole for any loss of pay and other
benefits in the manner set forth in the remedy section,
and in the same , manner for the illegal suspension of
Mavis Cohenour.
(b) Make its employees whole for losses suffered as a
result of the Respondent 's revocation of the across-the-
board wage increase announced on August 27, 1981
(c) Reestablish the position of certified -medication aide
so as to fully reinstate employees Kathi Schmidt and
Sharon Caron to those duties and to that position and
with their normal hours of work, and likewise reestablish
the normal hours of work for Mavis Cohenour.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order. -
(e) Remove from its files and records any references to
the discharges of Julie Bailey , Sharon Caron, and Carole
Lawson, the suspension of Mavis Cohenour , and the last
two written warnings given to Mavis Cohenour and
Julie Bailey , and notify them- in writing that this has been
done and that evidence of these unlawful actions will not
be used as a-basis for future discipline against them
(f) Post at its facility in St. Paul, Minnesota , copies of
the attached notice marked "Appendix."37 Copies of the
notice , on forms provided by the Regional Director for
Region 18 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
35 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
36 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses - •
31 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"