The Ohio Masonic Home

National Labor Relations Board - Board Decisions

Aug 8, 1973

205 N.L.R.B. 357 (N.L.R.B. 1973)

THE OHIO MASONIC HOME 357
The Ohio Masonic Home and National Union of Hos-
pital and Nursing Home Employees, Local 1199H,
an affiliate of Retail , Wholesale and Department
Store Union , AFL-CIO. Cases 9-CA-6964 and 9-
CA-7069
August 8, 1973
DECISION AND ORDER
On December 27, 1972, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed limited
exceptions and a supporting brief, and Respondent
filed an answering brief to General Counsel's excep-
tions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as indicated
hereinafter.
1. The Administrative Law Judge found that
Respondent's orally promulgated rule against union
solicitation and distribution of union literature on
company time was lawful, and that the threat to dis-
charge employees for violating the rule was equally
lawful. We disagree.
The phraseology used by Respondent in directing
employees not to solicit for the Union or to distribute
union literature was ambiguous. It could reasonably
be interpreted to mean that an employee may not
engage in union solicitation or distribution of union
literature at any time the employee is on the clock,
even at a time that the employee has finished his work
and is in a nonwork area. In Summit Nursing and
Convalescent Home, Inc., 196 NLRB 769 (Chairman
Miller dissenting), the Board found a similar broad
no-solicitation rule promulgated in a nursing home
invalid. Accordingly, we find that by the rule re-
stricting union solicitation and distribution of union
literature during working time Respondent violated
Section 8(a)(1) of the Act. It follows that the threat to
discharge employees for violating the rule was equally
violtive of Section 8(a)(1). We so find.
2. The Administrative Law Judge concluded that
Respondent did riot "iolate Section 8(a)(1) by prohib-
iting employees from wean,., 'anion insignia while at
work, and Section 8(a)(3) by discharging an employee
for refusing to remove the insignia when ordered to do
so. We disagree.
In June 1972, some of the employees began wearing
blue union buttons about the size of a quarter with
white print reading "Local 1199" in the middle and
"Hospital Division AFL-CIO" around the border.
Respondent ordered the employees to remove the
buttons and issued a rule against the wearing of union
buttons during working time . At the time of promul-
gation of this rule, Respondent had no similar rule
against wearing buttons which were unrelated to
union activities , such as so-called "Smile" buttons or
"Jesus Saves" buttons, and employees have in the
past worn such buttons . On July 17, 1972, Respondent
discharged employee Coram Miracle because of his
refusal to remove his Local 1199 union button from
his clothing.
The Board has long recognized that an employee
has the protected right to wear union insignia while at
work . In the absence of "special circumstances," the
promulgation of a rule prohibiting the wearing of such
insignia is violative of Section 8(a)(1).' The Adminis-
trative Law Judge found the "special circumstances"
justifying the prohibition in this case in the necessity
of protecting the health and welfare of the residents
of Respondent 's facility . We do not agree that this
was the motivation for the promulgation of the rule.
In Service Employees International Union Local 50,
AFL-CIO (Evergreen Nursing Home and Rehabilita-
tion Center, Inc.), 198 NLRB No. 101, the Board
found "special circumstances" justifying a rule
against wearing union insignia by personnel in a nurs-
ing home , but the circumstances justifying the finding
that the prohibition was adopted for nondiscriminato-
ry reasons were much stronger in that case than here.
In Evergreen, the employer had since its formation
and prior to the union organizing campaign enforced
a rule prohibiting employees from wearing any at-
tachments to their clothing while at work except for
name tags and pins relating to nursing service. The
union insignia in that case consisted of bright yellow
buttons 1-7/8 and 2-1/4 inches in diameter . The size
and color of the buttons obviously detracted from the
all white uniforms worn by the employees. In the
present case , in contrast , the prohibition was against
the wearing of union insignia but not other attach-
ments . It was not adopted until the onset of the union
organizing campaign, and the insignia was noticeably
less conspicuous in size and color than the union but-
tons in Evergreen. In all the circumstances, we find
that the prohibition against employees wearing union
insignia at work was promulgated not because of
Respondent's concern with the health and welfare of
its residents, but to thwart the Union 's organizational
campaign . Accordingly , we find that the promulga-
tion of the rule violated Section 8(a)(1) of the Act. As
the rule was unlawful , we further find that the dis-
charge of employee Coram Miracle for refusing to
1 Floridan Hotel of Tampa, Inc, 137 NLRB 1484
205 NLRB No. 65
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adhere to the rule was violative of Section 8(a)(3) and
(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Delete the Administrative Law Judge's conclusions
4, 5, and 6 and substitute therefor the following:
4. By promulgating and maintaining a no-solicita-
tion rule which prohibits employees from soliciting
orally for the Union in work areas during their non-
working time and distributing union literature in non-
work areas during their nonworking time,
Respondent has violated Section 8(a)(1) of the Act.
5. By promulgating and enforcing a rule prohib-
iting employees from wearing union insignia while at
work, Respondent has violated Section 8(a)(1) of the
Act.
6. By discharging Coram Miracle on July 17, 1972,
because of his refusal to remove union insignia while
at work, Respondent has violated Section 8(a)(3) and
(1) of the Act.
7. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain additional unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, we shall order Re-
spondent to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Coram Mira-
cle, we shall order Respondent to offer him immediate
and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earn-
ings he may have suffered as a result of the discrimi-
nation against him by payment to him of a sum of
money equal to that which he would have earned as
wages from the date on which he was discharged to
the date of Respondent's offer of reinstatement, less
his net earnings during said period. Backpay shall be
computed in the manner described in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 136 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, The Ohio
Masonic Home, Springfield, Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in surveillance of employee union ac-
tivities within the meaning of Section 8(a)(1) of the
Act.
(b) Promulgating, maintaining in effect, enforcing,
or applying any rule or regulation prohibiting its em-
ployees from soliciting on behalf of any labor organi-
zation in work areas during their nonworking time,
and distributing union literature in nonworking areas
during their nonworking time.
(c) Promulgating and enforcing a rule prohibiting
employees from wearing union insignia while at work.
(d) Discharging or otherwise discriminating
against any employee because of noncompliance with
the rule against wearing union insignia while at work.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Rescind its rule against soliciting on behalf of
a labor organization during employees' nonworking
time in any area of its nursing home, or in distributing
union literature during employees' nonworking time
in nonwork areas of its nursing home.
(b) Rescind its rule against wearing union insignia
while at work.
(c) Offer Coram Miracle immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileg-
es, and make him whole for any loss of earnings he
may have suffered in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its offices at or near Springfield , Illinois,
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the Re-
gional Director for Region 9, after being duly sighed
by Respondent's representative, shall be posted 1y the
Respondent immediately upon receir* 11,cl eof, and be
maintained by it for 60 crrn ' ,utive days thereafter, in
conspicuous places, in;luding all places where notices
2 In the event that 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
National Labor Relations Board" shall l ead "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
THE OHIO MASONIC HOME
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MILLER and MEMBER KENNEDY, dissenting
in part:
In our view, the Administrative Law Judge's find-
ings and conclusions are correct.' For the reasons
stated by him, we would adopt his Decision in its
entirety.
3 On the basis of the credited testimony of the Home's administrator, the
Administrative Law Judge found that the sole motivation behind the promul-
gation of the rule prohibiting the wearing of union buttons by employees was
premised on Respondent 's concern that the union buttons, unlike the "smile"
and "Jesus Saves" buttons , would have a worrying effect on the residents that
other buttons would not Our colleagues choose to ignore the fact that this
finding was based on a credibility resolution of the Administrative Law
Judge . Consequently , they have in effect substituted their own credibility
finding for that of the Administrative Law Judge. This we refuse to do
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in surveillance of your
union activities.
WE WILL NOT promulgate, maintain, or enforce
any rule or regulation which prohibits our em-
ployees from soliciting on behalf of any labor
organization in work areas of our nursing home
during their nonworking time, or from distribut-
ing literature on behalf of any labor organization
in nonwork areas of our nursing home during
their nonworking time.
WE WILL NOT promulgate or enforce any rule
prohibiting our employees from wearing union
insignia while at work in our nursing home.
WE WILL NOT discharge or otherwise discrimi-
nate against any ew.I loyee because of noncom-
pliance with the rule against wearing union
insignia while at work.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Coram Miracle immediate and
359
full reinstatement to his formerjob or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other
rights and privileges, and will make him whole
for any loss of earnings suffered as a result of the
discrimination against him.
Dated By
THE OHIO MASONIC HOME
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Administrative Law Judge: The Re-
spondent Ohio Masonic Home, a nonprofit corporation es-
tablished in 1892, operates a permanent home for
approximately 500 aged former Master Masons and their
wives or widows whose average age is more than 80 years,
at facilities on a 40-acre tract of land dust west of Spring-
field , Ohio . The majority of the residents are nonambulato-
ry. These, consisting of about 330, occupy beds in a
structure referred to as the Rickly Memorial Hospital. The
remaining 170 residents live in ambulatory resident halls of
another structure. For admission to the Home an applicant
"must be unable to earn a living for himself and must be in
need of a home" and further must agree in writing to turn
over to the Home "all property, whether real, personal or
mixed, of which he is possessed at the time of making appli-
cation , as well as all income he is receiving" or may receive
after admission to the Home.'
The Home employs some 380 employees for the care of
its aged residents and accompanying administrative and
accessorial services.
The complaints herein charge the Home with a number
of violations of the rights guaranteed to employees by the
National Labor Relations Act, and a discriminatory dis-
charge.
The Respondent's principal or threshold defense to the
1 The above findings of fact are based primarily on the published 74th
Annual Report of the Home for the fiscal year ending June 30, 1971, as it
appears in Joint Exhibit I at Appendix E
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint is a two -fold jurisdictional defense . Its first such
defense is that it is a nonprofit hospital corporation and
therefore not an "Employer" under the Act because Section
2(2) of the Act expressly excludes nonprofit hospital corpo-
rations from the definition of an "Employer" subject to the
Act.
With respect to this defense General Counsel contends
that the Home is precluded from raising that jurisdictional
plea in this unfair labor practice complaint proceeding be-
cause in a prior representation proceeding it had been de-
ternuned with finality within the Board that the Home does
not operate a hospital 2 within the meaning of the Act and
that under Board authority that same issue cannot be reliti-
gated here . Further , General Counsel contends that even if
the same jurisdictional issue is deemed properly present in
this proceeding the findings of fact in the representation
proceeding , incorporated herein by stipulation , would com-
pel the same holding that the Home does not operate a
hospital within the meaning of the Act and that accordingly
the Home is an Employer subject to charges of unfair labor
practices under the Act.
The Home 's second jurisdictional defense is a challenge
to the allegation in the complaints that it is engaged in
operations "affecting commerce " as defined in Section 2(7)
of the Act on the ground that "the economic impact of the
Ohio Home is uniquely localized within the State of Ohio."
Although this defense is raised by the pleadings , it does not
appear to have been argued at the trial and is not listed as
an issue in General Counsel's otherwise comprehensive
brief . It will be assumed that General Counsel 's position
with respect to this second jurisdictional defense is that this
issue, like the first jurisdictional defense, was determined in
the representation proceeding adversely to the Home and
may not be relitigated here and that in any event if the same
issue were relitigated here the result under the stipulated
facts would necessarily be the same.
The Home 's final defense is a denial of the unfair labor
practices alleged by the complaints herein . Summarized and
detailed the issues in this consolidated proceeding are as
follows:
1. Whether there may be relitigated here the jurisdic-
tional issue decided and determined adversely to the Re-
spondent in a prior representation proceeding of whether
the Respondent as it claims is a nonprofit corporation oper-
ating a hospital entitled to exemption from the Act as a
nonemployer within the meaning of Section 2(2) of the Act.
2. Whether there may be relitigated here the jurisdic-
tional issue decided and determined in the same prior repre-
sentation proceeding adversely to the Respondent of
whether it is engaged in operations "affecting commerce"
within the meaning of Section 2(7) of the Act as alleged in
the complaints so as to subject the Respondent to the opera-
tion of the Act.
3. Whether the Respondent is in violation of Section
2 A corporation claiming exemption under Sec . 2(2) of the Act as a "hospi-
tal" must meet the double requirement of proving that it operates a hospital
and that such operation is strictly a nonprofit operation It is an established
conceded fact that the Home and all of its facilities , including the structure
referred to as the Rickly Memorial Hospital, are not operated for profit Thus
the only question here involved under Sec 2 (2) of the Act is whether the
Respondent operates a hospital
8(a)(1) of the Act (a) by unlawfully interrogating and threat-
ening two employees concerning their union activities, (b)
by promulgating and enforcing an unlawfully broad no-
solicitation , no-distribution rule, (c) by engaging in unlaw-
ful surveillance of employees attending a union meeting, (d)
by the oral promulgation of a rule prohibiting employees
from wearing union buttons on Respondent 's premises, and
(e) and by threats to discharge employees wearing union
buttons.
4. Whether Respondent is in violation of Section 8(a)(3)
and (1) of the Act by its discharge of an employee for his
refusal to remove his union button.
The complaint in Case 9-CA-6964 was issued on May 26,
1972, pursuant to a charge filed on April 13, 1972, and duly
served on Respondent. The complaint in Case 9-CA-7069
was issued on July 19, 1972 , pursuant to a charge filed on
May 25 , 1972, and duly served on the Respondent . The two
cases were consolidated for hearing by an order dated July
19, 1972.
The consolidated case was heard on September 5, 1972,
at Springfield , Ohio. Briefs filed by counsel on October 10,
1972, have been carefully reviewed and considered.
For reasons hereinafter indicated , it is found that the
heretofore determined jurisdictional questions of whether
the Respondent is an employer subject to the Act and of
whether the Respondent is engaged in operations affecting
commerce can be relitigated in the present complaint case.
Also for reasons hereinafter indicated it is found that the
Respondent engaged in only one of the unfair labor practic-
es alleged in the complaints.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
A. The Evidentiary Facts of Respondent's Operations as
Related to the Question of Whether it Operates a
Hospital (Nonprofit) as Distinguished From an
Extended Care Nursing Home
Both complaints under paragraph 2 allege that, "Respon-
dent, an Ohio corporation , operates a proprietary nursing
and convalescent home at Springfield , Ohio." The Respon-
dent in its answers deny the allegation . Counsel for General
Counsel at the trial orally amended the allegations to read,
"Respondent, an Ohio nonprofit corporation, operates a
nursing and convalescent home at Springfield, Ohio." 3
Respondent's denial of the original allegations also stands
for the amended allegations except that it admits that its
operations are nonprofit . As heretofore noted,
Respondent 's position is that it operates a hospital (nonpro-
fit) exempt from the Act, not - tended nursing and con-
valescent home.
No testimony was offered at the trial in support or denial
of the amended allegation . Instead both parties by agree-
3 The amendment to the complaint as stated above is clarified by questions
put to counsel for the General Counsel The Home is actually located just
west of Springfield (Joint Exhibit 1, Appendix E )
THE OHIO MASONIC HOME
ment rely on the record 4 established in a prior representa-
tion proceeding in Case 9-RC-9602 for the basic facts relat-
ing to the amended allegation. The parties to the representa-
tion proceeding were the Respondent herein, as
"Employer," and the National Union of Hospital and Nurs-
ing Home Employees, Local 1199H, an affiliate of Retail,
Wholesale and Department Store Union, AFL-CIO, the
Charging Party herein, as "Petitioner."
A "Decision and Direction of Election" was issued in that
proceeding by the Regional Director for Region 9 on July
21, 1972. The Regional Director found and concluded that
the Respondent did not operate a hospital within the mean-
ing of Section 2(2) of the Act. The Home filed a request for
review of the Regional Director's Decision and Direction of
Election. The Board by telegram dated August 8, 1972,
denied the request on the ground that it "raises no substan-
tial issues warranting review."
The Respondent does not dispute the evidentiary findings
of fact set forth in the Regional Director's Decision and
Direction of Election on the operations of the Home. On the
contrary, counsel for the Respondent stated at the trial
herein that, "We are relying on the evidence presented pre-
viously [i.e., in Case 9-RC-9602]." Moreover, the Respon-
dent specifically disclaims any new evidentiary facts
bearing on the question of whether the Respondent operates
a hospital (nonprofit) exempt from the Act.
For a description of Respondent's operations in the vicin-
ity of Springfield, Ohio, I adopt the following undisputed
evidentiary findings of fact from the Regional Director's
Decision and Direction of Election.
The Employer, a nonprofit Ohio corporation, operates
a 40-acre facility known as the Ohio Masonic Home,
at Springfield, Ohio. It is controlled by the Masonic
Lodges of the State of Ohio and its general policies are
formulated by a non-salaried board of trustees. It con-
sists primarily of a rest home, which houses approxi-
mately 170 residents, and an adjacent 330-bed
structure referred to as Rickly Hospital. In order to be
eligible for admission to either facility, an individual
must have been a Master Mason for at least five years
or the widow of an individual who had been a Master
Mason for at least five years at the time of his death.
Upon being accepted for admission, a resident is re-
quired to assign all his assets to the Employer. These
assets are used to defray the cost of the care extended
the resident. If a resident has any assets left at his
death, they become part of the Employer's estate. Once
an individual is admitted by the Employer, he may
remain for life without additional cost. The fact that his
assets may be depleted is immaterial. The Employer
must depend on contributions from various Masonic
Lodges and revenues derived from certain endowment
funds to defray all other expenses.
The record discloses that the Rickly facility is a two-
For convenience the full record in the representation proceeding, includ-
ing the transcript of testimony and all exhibits therein, have been duplicated
and made part of the record herein as Joint Exhibits I and 2
361
winged six-floor structure. Virtually all its patients are
bedridden or mentally incapable of caring for their
needs. It is not a member of the American Hospital
Association, nor is it accredited by the Joint Commis-
sion of Accreditation of Hospitals.
The facility [Rickly Hospital] has no full-time medical
staff per se, but has entered into an agreement with
three local physicians to provide such medical advice
and treatment as required by its patients. The medical
services provided by these doctors are also available to
the rest home patients. There is no internal or major
surgery performed at Rickly. If a patient needs surgery,
he is transferred to a local hospital. A patient is also
removed to a local hospital if he becomes seriously ill
or if he should be involved in an accident. . . . The
facility does not provide care of any type for patients
other than its own residents and does not accept non-
resident patient referrals under emergency or any other
circumstances.
After an individual is accepted for admission by the
Employer, he is assigned to its Rickly facility for a
medical evaluation. Based on this evaluation, a deter-
mination is made as to whether he will be assigned to
Rickly or the rest home. The primary criteria consid-
ered in making this decision is whether the resident is
ambulatory and capable of self-care. If a resident is
ambulatory and capable of self-care, he is assigned to
the rest home; otherwise he is assigned to the Rickly
facility. This is also the criterion used by the Employer
in differentiating between Rickly and the rest home
facilities in the instructions issued its employees. Once
an individual is assigned to the Rickly facility, it is
normally for life. If a resident should go on vacation,
or if he is transferred to a hospital, his room at Rickly
remains vacant in anticipation of his return.
As of June 30, 1971, the Homes had 189 male residents
and 288 female residents. As heretofore noted the average
age of the residents is more than 80 years. Forty-seven of
the residents are in their nineties. One has attained the age
of 100. For the fiscal year ending June 30, 1971, the Home
had 112 deaths, 99 admissions, and only 4 discharges. For
the same fiscal year the Home had an operating income of
$3,310,436 as against an operating expense of $2,771,802.5
Only two of the seven or more buildings on the situs of
the Homes are used to house its residents; one is essentially
a rest home which as heretofore noted houses about 170
ambulatory residents and the other is the facility known as
the Rickly Memorial Hospital which houses approximately
330 bedridden residents or residents who are mentally inca-
pable of caring for their needs. The remaining buildings are
used for administrative or accessorial purposes.
From the salient evidentiary findings set forth above and
the full record in the representation proceeding, the Region-
al Director and the Board, by its denial of the request for
review of the Regional Director's decision, found and de-
5 Abstracted from the Home's Seventy-Fourth Annual Report as con-
tained in Appendix E in Joint Exhibit I
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termined that the Home, although a nonprofit corporation,
was not a corporation "operating a hospital" within the
meaning of Section 2(2) of the Act and that the Respondent
was therefore an employer within the meaning of the same
section of the Act and accordingly subject to the Act.
Discussion and Conclusions
While the General Counsel contends that the prior juris-
dictional finding in the representation proceeding that Re-
spondent does not operate a hospital may not be relitigated
in the instant unfair labor complaint proceeding under the
authority of Greene County Farm Bureau Cooperative Associ-
ation, Inc., 132 NLRB 1592 (1961), enfd. 317 F.2d 355 (C.A.
D.C., 1963), and N.L. V. Casino Corporation d/b/a/ Silver
Nugget, 174 NLRB 42 (1969), the fact is that the question
of whether Respondent operates a hospital as against an
extended care nursing facility has in fact been relitigated
here under the issue raised by the amended pleading herein
of whether Respondent "operates a nursing and convales-
cent home Springfield." This follows from the fact that
counsel for both General Counsel and the Respondent sub-
mitted the question of proof on whether the Respondent
operates a nursing and convalescent home as distinguished
from a hospital, solely on the record established in the repre-
sentation proceeding as neither offered or claimed any new
evidence on the question and Respondent specifically dis-
claimed any new evidence on the issue.
In any event I am in agreement with Respondent that the
same Court of Appeals for the District of Columbia which
rendered the above cited Greene County Farm opinion is-
sued a subsequent opinion in Amalgamated Clothing Work-
ers of America v. N.L R B., 365 F.2d 898 (C.A.D.C., 1966),
which in effect limits its earlier ruling in Green County Farm
against the relitigation of jurisdictional issues in complaint
cases to a prohibition of relitigation in refusal to bargain
cases involving "the scope of the appropriate unit and em-
ployees therein" as determined in a prior representation
proceeding. The rationale given by the court for the prohibi-
tion of the relitigation in refusal-to-bargain cases of prior
appropriate unit determinations in representation proceed-
ings is that to allow such relitigation would cause undue and
unnecessary delays in representation elections contrary to
Congressional intent. The present proceeding does not in-
volve a refusal-to-bargain issue ; it involves only alleged
interferences with the rights of organization. In such situa-
tions the court in Amalgamated held that, "Where the reliti-
gation issue is not refusal to bargain, but rather interference
with rights of organization, the proceedings are not so relat-
ed as to foreclose presentation to the Board of the underly-
ing issues ." See also, to same effect, Heights Funeral Home,
Inc. v. N.L.R.B, 385 F.2d 879 (C.A. 5, 1967), and N.L.R.B.
v. Union Brothers, Inc., 403 F.2d 883, footnote 8 (C.A. 4,
1968).
Thus under the court's opinion in Amalgamated the issue
herein of whether the Respondent "operates a hospital" is
relitigable as the relitigation issue is not a refusal to bargain,
but rather "interference with rights of organization."
Wholly aside from the authority of the Amalgamated de-
cision for the relitigability of the jurisdictional issue here
involved, it is well settled that the existence of statutory
jurisdiction may be raised at anytime. N.L.R.B. v. Peyton
Fritton Stores, Inc., 336 F.2d 769 (C.A. 10, 1964).
For these reasons I conclude that the question of whether
the Respondent operates a hospital is relitigable in this un-
fair labor proceeding.
The principal evidentiary facts on that question have
been set forth above by adoption from the Regional
Director's findings of fact in his "Decision and Direction of
Election." In addition I adopt by reference all the remaining
findings of fact in Regional Director's Decision.
Based on such evidentiary findings, I find and conclude,
as did the Regional Director, that the Respondent is an
employer within the meaning of the Act and adopt and
make as my own the Regional Director's rationale for the
decision as set forth in his Decision and Direction of Elec-
tion and affirmed (in effect) by the Board, to wit:
In view of the above [i.e., the findings of fact as in large
part set forth above], and the record as a whole, noting
particularly the fact that the facility does not accept
emergency or other nonresident patients, that it has no
full-time medical staff, that its patients are normally
life-time residents, that it has no facilities for surgery,
and that it transfers patients who are seriously ill or in
need of surgery to other local hospitals, I find that the
Rickly [Hospital] facility is not the type of institution
which is granted statutory immunity under Section 2(2)
of the Act. It is at most an extended nursing facility.
The fact that the Employer characterizes itself as some-
thing other than a nursing home does not remove it
from the category of facilities over which the Board will
assert jurisdiction. Accordingly I find that the Employ-
er is engaged in commerce within the meaning of the
Act. Evangelical Lutheran Good Samaritan Society, 191
NLRB 350; The Swanholm, an operation of the Martin
Luther Foundation, Inc., 186 NLRB 45; Rosewood, Inc.,
185 NLRB 193; Good Samaritan Hospital, 185 NLRB
198; Bethany Home for the Aged, 185 NLRB 191; Drex-
el Home, Inc., 182 NLRB 1045.
In addition and independently of the jurisdictional deter-
minations in the Regional Director's Decision and Direc-
tion of Election in Case 9-RC-9602, and based on an
independent study of the entire record in that representa-
tion proceeding as herein incorporated, I find and conclude
that the Respondent does not operate a hospital within the
meaning of Section 2(2) of the Act and that accordingly the
Respondent is an employer within the meaning of the same
Section 2(2) of the Act and therefore subject to prosecution
for the unfair labor practices alleged in the complaint.
Respondent's reliance on hospital definitions as a basis
for the findings it seeks here that it operates as a hospital
rather than a nursing home is without merit. There can be
no quarrel with the definitions the Respondent cite of what
constitutes a hospital; the difficulty is that Respondent's
operations do not match such definitions. To take only the
first definition of a hospital advanced by the Respondent,
namely, that a hospital is "an institution for the treatment
of the sick" (The American Illustrated Medical Dictionary,
21st Ed.), it is obvious from the record that the Respondent,
The Ohio Masonic Home, is not a hospital but what its
name implies , a home for aged Masons until death. For
admission to the Home an applicant must show that he or
THE OHIO MASONIC HOME
she is unable to work and must turn over to the Home all
his or her property and income; thus applicants for resi-
dence who are accepted become virtually paid-up pension-
ers of the Home for life. Although the majority of the
present residents are incapacitated to the point of being
nonambulatory due to the ravages of age, it is obvious that
they did not enter the Home for treatment of their illnesses
or incapacities but primarily for the nursing care they need
or will need as the infirmities of old age take effect, until
their death.
By contrast a hospital is an "in and out" institution. Hos-
pitals are not places where patients sign up to remain for the
rest of their life. As hospitals are used for the treatment of
the sick, the patient turnovers at hospitals are obviously
tremendous whereas at the Home the turnover of residents
is almost invariably by death only, as the average age of its
500 residents is over 80 years and the average annual death
rate appears to be more than one-fifth of their number.
Similarly, contrary to Respondent's contention, the Home
does not meet the functional definition of a hospital enunci-
ated by the American Hospital Association for registration
as a hospital by the Association. The preamble of AHA's
"Requirements for Accepting General or Special Hospitals
for Registration" sets forth the following primary functional
description of a hospital:
Function: The primary function of the institution is to
provide patient services, diagnostic and therapeutic,
for a variety of medical conditions, both surgical and
nonsurgical.
As shown above, the primary function of the Rickly Hos-
pital is to provide nursing care for the remaining life of its
greatly aged residents. The Home is not and has never been
registered as a hospital by the AHA or any other profession-
al body and could not in any event meet the professional
requirements by such bodies for registration, if for no other
reason than that it does not maintain "an organized medical
staff" as required by the AHA since the record herein shows
that the Rickly facility has only a contractual arrangement
with three local physicians 6 to provide such medical advice
and treatment as are required by its residents. Finally, the
Respondent seeks to distinguish the facts in the present case
from those in numerous other cases I in which the Board
found the employer to be a nursing home as a basis for
obtaining a contrary finding that Respondent operates a
hospital within the meaning of Section 2(2) of the Act,
rather than a nursing home. But any realistic comparison of
the factual situation in such nursing home cases with that
in the instant case compels the conclusion that in their basic
realities they are the same and that accordingly the holding
in such cases are applicable here.
As part of Respondent's attempt to distinguish its situa-
tions from the cited cases in which the Board held that
similar institutions are not statutory exempt hospitals but
on the contrary are nursing homes, the Respondent points
6 At the time of the trial herein the number of physicians under such
contractual arrangement had been reduced from three to two
i Drexel Homes, Inc, 182 NLRB 1045, Evangelical Lutheran Good Samari-
tan Society, 191 NLRB 35, Rosewood, Inc, 185 NLRB 193, Bethany Home
for the Aged, 185 NLRB 191, The Swanholm, an operation of The Martin
Luther Foundation, Inc, 186 NLRB 45
363
to the fact that its Rickly facility is registered as a "hospital"
with Ohio's Department of Health pursuant to Ohio statute
although it is conceded that there is no provision in the laws
of Ohio for the licensing of hospitals within the State. The
mere fact that the Respondent chose to register its Rickly
facility as a "hospital" with the Ohio Department of Health
does not change the historical and true character of the
facility as a nursing home for aged and for the most part
chronically ailing Master Masons into a hospital whose
"primary function ... is to provide patient services, diag-
nostic and therapeutic, for a variety of medical conditions,
both surgical and nonsurgical," in accordance with the
American Association of Hospital's definition of a hospital.
On the contrary, in line with the facts, the Rickly facility
fits precisely into the American Hospital Association's de-
finition of a nursing home as:
An establishment with permanent facilities that include
in-patient beds; and with medical services, including
continuous nursing services, to provide treatment to
patients who require in-patient care but who do not
require hospital services [Emphasis supplied.] [Bethany
Home for the Aged, supra. ]
B. Findings of Fact as Related to Issue of Whether
Respondent Is Engaged in Operations
"Affecting Commerce " Within the
Meaning of Section 2(7) of
the Act
It is established under the pleadings that the Respondent
in the course and conduct of its business in a representative
period, as reflected by the past 12 months prior to the is-
suance of the complaints herein, received gross revenues in
excess of $100,000 and that during the same period pur-
chased goods and materials valued in excess of $50,000
from suppliers located in the State of Ohio, each of whom,
in turn purchased and received goods and materials valued
in excess of $50,000 directly from manufacturers located
outside the State of Ohio.
Despite these admissions in its pleadings, the Respondent
in its answers denies that it is engaged in "commerce" and
in operations "affecting commerce" as defined in Section
2(6) and (7) of the Act, respectively. However, by its brief,
it now appears that Respondent is no longer denying that
it is engaged in "commerce" as defined in Section 2(6) of the
Act, but that it still denies that it is engaged in operations
"affecting commerce" as defined in Section 2(7) of the Act.
In the aforementioned prior representation proceeding in
Case 9-RC-9602, the Regional Director for Region 9 in his
Decision and Direction of Election determined that the
Respondent was engaged in "commerce" and in "opera-
tions affecting commerce" as defined in Section 2(6) and (7)
of the Act. General Counsel appears to take the position
that this jurisdictional determination by the Regional Direc-
tor, as in effect affirmed by the Board by its denial of
Respondent's request for review thereof, is not relitigable in
this unfair labor practice proceeding. For the reasons here-
tofore stated above for allowing the Respondent to relitigate
the question of its claimed exemption from the Act as an
alleged nonemployer under the Act, I find and conclude
that the Respondent is entitled to relitigate here its jurisdic-
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional claim that it is not engaged in operations "affecting
commerce."
On the question of whether Respondent's operations af-
fect commerce, I adopt the findings of the Regional Direc-
tor in his aforementioned Decision which reads as follows:
The Employer further urges the Board to decline to
assert jurisdiction over its operations on the basis that
its impact on commerce is minimal. The Employer bas-
es this claim on the fact that its non-profit status ren-
ders it non-commercial in nature, that its residents,
with one or two exceptions, are from the State of Ohio,
and that it does not participate in medicare or other
state or federal funded programs. The record discloses
that all of its residents are from the State of Ohio or
sponsored by an Ohio Masonic lodge. With the excep-
tion of his hospital coverage, an individual's participa-
tion in the medicare program is cancelled at the time
he is admitted as a resident by the Employer. The hos-
pital coverage is maintained in case it becomes neces-
sary to transfer the resident to a hospital. The record
further discloses that during the past year, the Employ-
er received gross revenues in excess of $250,000. Dur-
ing the same period, it purchased goods valued in
excess of $50,000 from points outside the State of Ohio
which it caused to be shipped directly in interstate
commerce to its Springfield, Ohio location, The
Employer's impact on commerce is neither influenced
nor lessened by its non-profit status. The fact that it
does not participate in medicare or other state or feder-
al funded programs is not controlling. .. .
Discussion and Conclusions
Although the Respondent in its brief forthrightly admits
that its "out-of-state purchases would be sufficient to estab-
lish the requisite substantial impact on interstate com-
merce," it nevertheless seeks a determination that
`jurisdiction does not exist under existing Board criteria."
In support of its position, Respondent points to the fact that
its physical operations are wholly localized within the State
of Ohio, that its economic support comes solely from
sources within the State of Ohio, that it does not participate
in any federally funded or administered programs, and that
it does not receive any income from any private nationally
operated health insurance companies.
Respondent does not dispute the fact that the Board in
Drexel Home, Inc., 182 NLRB 1045, established the policy
of asserting jurisdiction over nonprofit nursing homes such
as the Respondent's operations which receive annual gross
revenue in excess of $100,000 as the Respondent herein
does. But Respondent calls attention to a factual difference
between its situation and that in Drexel Home which it urges
calls for a different conclusion herein. This is that the Re-
spondent does not participate as shown in the above find-
ings in any federally funded or administered programs
whereas the Board found that the Drexel Home participates
"in various national health and welfare programs financed
with funds flowing from the Federal Government." Re-
spondent contends that the "primary basis" for the Board's
assertion of jurisdiction in Drexel was its finding that Drexel
participated in federally administered health insurance and
nationally operated private health insurance companies. Be-
cause of the absence of that factor in the present case, the
Respondent seeks a finding that its operations, contrary to
Drexel's, do not substantially affect commerce and an ulti-
mate finding that the Board does not have jurisdiction of
this proceeding.
However, an analysis of the Drexel decision fails to show
that the Board's "primary basis" for its holding of jurisdic-
tion therein was Drexel's "participation in various national
health and welfare programs" because the Board in the
Drexel decision specifically states that such participation
was one factor, "inter aha" for its decision. (182 NLRB at
1046) This appears even more clearly from a later sentence
in the Board's Drexel decision which reads, "Accordingly,
for all the reasons set forth herein and in University Nursing
[168 NLRB 263], and because the Employer receives in
excess of $100,000 in gross revenues per annum, we find that
it will effectuate the policies of the Act to assert jurisdiction
in this proceeding." (Emphasis supplied.) In University
Nursing, the Board determined that operations of that
employer's proprietary "home for the aged" substantially
affects commerce and accordingly asserted jurisdiction over
the facility. In Drexel Home, supra. the Board extended that
jurisdictional holding over profitmaking nursing facilities to
similar nonprofit facilities, such as is involved in the instant
case. It would appear from a careful reading of University
Nursing and Drexel Home that the basic reason for the
assertion of jurisdiction over both proprietary and nonprofit
nursing homes for the aged is the overwhelming growth of
such facilities in recent years and resulting economic impact
on the National economy. See University Nursing, 168
NLRB at 264.
The idiopathic variation in Respondent's factual situa-
tion that it does not participate in any nationally operated
private health insurance companies cannot justify an ex-
emption for the Respondent from the Board's general policy
of asserting jurisdiction over nonprofit operations of nurs-
ing facilities for the aged such as the Respondent's in view
of the admitted fact that Respondent's operations do meet
the $100,000 gross revenue jurisdictional standard estab-
lished for such facilities. As stated by the Supreme Court in
N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U.S. 224
(1963), "Whether or not practices may be deemed by Con-
gress to affect interstate commerce is not to be determined
by confining judgment to the quantitative effect of the activ-
ities immediately before the Board."
From all the evidence of record I find and conclude, as
did the Regional Director in his prior Decision and Direc-
tion of Election, that Respondent's operations affect com-
merce within the meaning of Section 2(7) of the Act.
II UNFAIR LABOR PRACTICES
A. Background
As heretofore noted, the Respondent has about 500 aged
residents in its rest home and Rickly Memorial Hospital. It
employs approximately 380 service and maintenance em-
ployees to look after the residents, consisting for the most
part of nurses aides and assistants, orderlies, cooks, kitchen
helpers, housekeepers, ground keepers, custodial employ-
THE OHIO MASONIC HOME
ees, drivers, occupational therapy aides, physical therapy
aides, and orderlies.
Sometime early in 1972, the Charging Party, Union here-
in, started a campaign to organize Respondent's service and
maintenance employees.
B. Alleged Unlawful Interrogation and Threats
and Unlawful No-Solicitation
and No-Distribution Rule
Keith M. Bruster has been administrator and chief execu-
tive of the Home since September 1970. Prior to the ap-
pointment to his present position, he had some 10 years of
experience as a hospital administrator in the East. By his
own admission, Bruster became aware of the Union's efforts
to organize the Home in March and April 1972. On April
7, 1972, he called two of the Home's nurses' assistants,
Sandra Maurice and Kristin Ohlson, separately into the
office of the Home's director of nursing, Mrs. MacDonald.8
To avoid confusion, the two nurses' assistants will be re-
ferred to by their first names. At the time they were called
in they had been employed at the Home for a little over 1
year. Each had signed a union authorization card prior to
her interview by Bruster.
Bruster testified that he made substantially the same
statements to Sandra and Kristin in his separate talks with
them on April 7, 1972.
Preliminarily, Bruster's undisputed testimony establishes
that the Home has a rule which forbids all nurses' assistants
from discussing any personal matters or anything else that
does not pertain to patient care with patients in order to
avoid disturbing or upsetting the mental equilibrium of the
Home's residents. All nurses' assistants are informed of the
rule during training courses they must go through to become
a nurses' assistant . Sandra and Kristin admit that they were
so instructed during their training program and that they
were fully aware of the rule at the time they were called in
to see Bruster.
Bruster testified that in his talk with Kristin on April 7,
1972, he informed her that while he was not accusing her of
such conduct, it had been reported to him that she was
soliciting other employees on the nursing floor to join the
Union and that she had been heard discussing union prob-
lems in front of the Home's residents. He reminded her of
the rule against disturbing and upsetting residents with out-
side problems. He told her that she could talk all she wanted
about the Union at break and lunch periods, but instructed
her that she was to abstain from engaging in union talk on
the nursing floors and in the presence of the Home's resi-
dents.
Bruster testified that he made the same general remarks
and instructions to Sandra in his separate talk to her earlier
that same day.
He further denied questioning or threatening either Kris-
tin or Sandra concerning their union activities.
Kristin's testimony of what Bruster had to say to her at
the April 7 conference is substantially in accord with
Bruster's testimony. In her direct testimony, Kristin made
8
Although present at these talks, Mrs McDonald was not offered by either
party as a witness
365
no claims that Bruster interrogated or in any way threat-
ened her concerning her union activities. On the contrary,
her testimony shows that Bruster told her "he didn't care"
what she thought about unions and that if she wanted to
join a union, it was all right with him. But her testimony
shows that Bruster did tell her that it had come to his atten-
tion that she had been passing out union leaflets such as the
one he held in his hand and that he ordered her to refrain
from passing out such union literature "on working time"
and also to refrain from talking to other employees about
the Union "on his time," meaning, the Respondent' s time.
He told her, however, that if she wanted to talk about the
Union to other employees, she was free to do so at lunch-
breaks.
Sandra testified that Bruster opened his separate inter-
view with her by telling her that whatever the employees of
the Home did with their own time and money on union
activities was their own business, but then "went on to ask"
if she had received anything in the mail from the Union and
if she had signed a card for the Union and if she had been
passing out union literature.
Sandra's testimony shows, however, that the main thrust
of Bruster's talk with her was his order that she refrain from
passing out union literature or talking to other employees
about the Union "on Company time" and that in this con-
nection he further told her that any one caught engaging in
such conduct "on Company time" would be fired on the
spot immediately.
The record shows that at the time Bruster ordered Kristin
and Sandra to refrain from union solicitations and from the
distribution of union leaflets on worktime, the Respondent
had no similar or parallel rule against solicitation on work-
time for causes other than union membership or against the
distribution of literature on worktime unrelated to union
matters. On the contrary, the record shows that the Home
freely permits employees to solicit and pass out brochures
on worktime for such things as Avon, Stanley products, and
Tupperware.
Discussion and Conclusions
In the complaint in Case 9-CA-6964, it is alleged that the
Respondent's supervisor, Bruster, on April 7, 1972, interro-
gated an employee about her union activities in violation of
Section 8(a)(1) of the Act. The testimony of Sandra Maurice
was offered in support of that allegation. As shown in the
findings, Sandra testified that when she was summoned to
see Administrator Bruster on April 7, 1972, he questioned
her about whether she had received anything in the mail
from the Union, whether she had signed a union card, and
whether she had been passing out union literature.
Bruster flatly denied making any such inquiries of Sandra
or of Kristin. However, only Sandra claimed interrogation
into her union activities by Bruster. There is nothing in
Kristin's testimony to suggest that Bruster interrogated her.
In this directly conflicting testimony between Bruster and
Sandra, I credit Bruster's denial that he had questioned
Sandra about her union activities for several reasons. One
is that since both Sandra and Kristin were called in by
Bruster primarily for a warning against talking to resident
patients about their union activities, it is not very likely that
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruster would interrogate only Sandra about her union ac-
tivities and not Kristin. Another reason for crediting
Bruster's denial is that the testimony of both Sandra and
Kristin shows that Bruster went out of his way to tell them
at their separate meetings with him that whatever union
activities they engaged in on their own time was strictly their
own business . Thus, Sandra's testimony that Bruster inter-
rogated her about her union activities is inconsistent with
her open admission that Bruster opened the interview with
his assurance to her that the Respondent 's employees were
free to engage in any union activities they desired if done
on their own time and money. It does not seem likely that
Bruster as the responsible general manager of the Home
would make that assurance and then immediately violate
the assurance by questioning Sandra about whether she had
received anything in the mail about the Union or had signed
a union card . Finally, I credit Bruster 's denial because he
impressed me as having the superior memory and a personal
integrity and sincerity at least equal to that of Sandra.
I find and conclude that General Counsel failed to sub-
stantiate the allegation of the complaint that Bruster on
April 7, 1972, interrogated an employee, Sandra Maurice,
about her union activities . Accordingly , that allegation will
be recommended for dismissal for failure of proof.
The next issue for resolution arises out of the allegation
of the complaint in same Case 9-CA-6964 that on April 7,
1972, the Respondent through Bruster orally promulgated
an unlawfully broad no-solicitation and no-distribution rule
"during employees ' non-work time" and "in non -work areas "
(Emphasis supplied.)
For proof of this allegation , counsel for General Counsel
relies on the same testimony given by Kristin Ohlson and
Sandra Maurice on the instructions they received from
Bruster at their separate conferences with him on April 7,
1972, as set forth in the findings of fact above.
The testimony of neither Kristin nor Sandra shows that
Bruster ordered them to refrain from soliciting other em-
ployees "during non-work time" or from passing out union
literature "in non -work areas ," as alleged in the complaint.
On the contrary , their testimony shows that Bruster ordered
them to refrain from such conduct only "on working time."
There is nothing in the testimony of either Kristin or Sandra
to show that Bruster ordered them to refrain from soliciting
union support "during non-work time" or from distributing
union literature "in non -work areas ." Although this is evi-
dent from the findings of fact above based on the testimony
of Kristin and Sandra , it is more clearly brought out by the
verbatim testimony of the two employees. Thus under her
direct examination by counsel for General Counsel, Kristin
testified as follows:
A. [By Kristin ] I went into the room and sat down
and Mr . Bruster came in and he pulled a Union leaflet
and said , " I have been told you have been handing
around such literature as this."
Q. You saw it?
A. Yes. He told me he didn ' t care what I thought
and, if I wanted to get a Union and pay monthly dues,
it was all right with him, but that I wasn 't to do these
things on his time. . . . [ Emphasis supplied.]
Q. Did he say anything about talking?
A. Yes, and that included talking about the Union,
discussing it with fellow employees.
Q. What did he say in his words?
A. Not to talk about the Union with other employ-
ees on his time; that, if I wanted to talk about the Union
with someone, to go up to them at the lunch hour and
say that I would like to talk to them about it and could
we talk about it later, maybe at their house. [Emphasis
supplied.]
Q. Did he mention passing out leaflets?
A. He said not to do it.
Q. Did he say when, where?
A. Not on working time. [Emphasis supplied.]
Q. Did he say anything else about that?
A. Well, at the end of the conversation, he said,
"This is an order. Do you understand what that
means?"
Similarly, Sandra's verbatim testimony likewise shows
that Bruster ordered her to refrain from union solicitation
and the distribution of union leaflets only on company time.
Under direct examination by counsel for General Counsel,
Sandra testified:
Q. Did he [Bruster] say anything else during that
conversation?
A. Well, you know , he made the statement that there
was not to be any union literature passed out on Com-
pany time and that anyone caught doing this on Compa-
ny time . . . would be fired immediately on the spot.
[Emphasis supplied.]
Q. Did he [ Bruster] mention anything about passing
out literature on Company time? .. .
A. Not pass out literature or talk about the Union
on Company time. [Emphasis supplied.]
In view of this complete failure of proof of the allegation
of the complaint that Respondent on April 7, 1972, promul-
gated a no-solicitation and a no-distribution rule applicable
"during employees' non-work time " and "in non-work ar-
eas," the allegation will be recommended for dismissal.
Finally, in connection with the event of April 7, 1972, the
complaint under two subparagraphs in Case 9-CA-6964
alleges threats by Respondent against two employees in
violation of Section 8(a)(1) of the Act.
Under paragraph 5(b) of the complaint it is alleged that
Respondent threatened an employee with discharge for dis-
tributing union literature in nonwork areas or for soliciting
on behalf of the Union in nonwork time. The testimony of
Sandra was also offered in support of that allegation.
Under paragraph 5(c) it is alleged that Respondent
threatened another employee for distributing union litera-
ture in nonwork areas and soliciting on behalf of the Union
in nonwork time. The testimony of Kristin was offered in
support of that allegation.
In the case of Sandra , her testimony, as shown in the
above findings, shows that Bruster told her he would fire
any employee who passed out union literature "on Compa-
ny time." This is denied by Bruster.
In the case of Kristin , there is no direct evidence that
Bruster made any such direct threats to her with reference
THE OHIO MASONIC HOME 367
to the distribution of literature or the solicitation of union
support "on Company time," but it can be inferred from his
strict order to her to refrain from engaging in such conduct
"on Company time" that she would be fired if she disobeyed
the order. Bruster also denied making any threats to her.
It is not necessary to resolve these conflicts of testimony
because the complaint does not allege threats of discharge
for distributing union literature or for soliciting union sup-
port on company time, it charges only threats of discharge
for the distribution of union literature in nonwork areas and
for soliciting in behalf of the Union during nonwork time. As
it was found above that the Company never issued any rules
against the distribution of union literature in nonwork areas
or against union solicitation on nonwork time and as the
record is totally devoid of any threats of discharge by the
Respondent for such conduct, it will be recommended that
the subparagraphs of the complaint here under consider-
ation be dismissed for failure of proof?
In summary I find and conclude that there has been a
total failure of proof on all of the unfair labor practices
alleged in the complaint in Case 9-CA-6964 and according-
ly I will recommend a dismissal of that complaint in its
entirety.
C. Alleged Unlawful Surveillance or
Impression Thereof
James R. Goff is the supervisor of the Home's dietary
department. The complaint in Case 9-CA-7069 charges
Goff with engaging in surveillance and/or creating the im-
pression of engaging in surveillance of Respondent's em-
ployees while they were engaged in activity on behalf of the
Union.
The Respondent in its brief states that it "does not defend
the apparent surveillance activities of Mr. Goff," but ap-
pears to seek condonment for Goff's conduct on the ground
that Administrator Bruster "neither ordered nor suggested
he take such action."
Briefly the facts on the incident here under consideration
are these. The testimony of Betty Suttles, one of
Respondent's housekeeping aides, and the aforementioned
Sandra Maurice, show that they saw Goff on May 18, 1972,
sitting in his parked car near the YWCA building where the
Home's employees were having a union organizational
meeting and that he was observing the identity of
Respondent's employees as they were entering the YWCA
building.
Goff did take the stand to deny the conduct ascribed to
him as shown above. Bruster denies that he ordered or
suggested to Goff that he stand watch over who was attend-
ing the union meeting.
Discussion and Conclusion
Under the above undisputed findings and Respondent's
admission that it does not defend Goff's conduct as set forth
in the findings, it is found that the Respondent has engaged
in unlawful surveillance of the union activities of its employ-
9 If it were necessary to resolve these conflicts of testimony, I would credit
the testimony that such threats were made or implied
ees in violation of Section 8(a)(1) of the Act. It is well
established that proscribed conduct by a lower echelon su-
pervisor is not excusable because his conduct was not au-
thorized or within the knowledge of the supervisor of the
subordinate supervisor.
D. Remaining Alleged Unfair Labor Practices
The remaining issues in Case 9-CA-7069 revolve around
Respondent's efforts to stop its employees from wearing
union buttons on the job.
The Respondent in its brief virtually admits the various
allegations of the complaint setting forth the actions it has
taken to stop the wearing of union buttons on the job, but
seeks to defend and justify its antiunion button actions on
the ground that they were made in the interest of protecting
its aged and for the most part nonambulatory and ailing
residents from avoidable concern and worry over what
might happen to them if the employees who looked after
their physical wants and comfort went on strike. For that
defense the Respondent relies on the Board' s recent deci-
sion in Evergreen Nursing Home, 198 NLRB No. 101.
Briefly summarized the undisputed facts on the union
button issues are as follows. On June 15, 1972, some of the
employees at the plant began wearing blue union buttons of
about the size of a quarter with white print reading "Local
1199" in the middle and "Hospital Division AFL-CIO"
around the border. Among the employees wearing such
buttons were the aforementioned Sandra Maurice and Betty
Suttles. Bruster by an interphone call on June 15 ordered
Sandra to remove her button. She complied. The next day
Betty was ordered to remove her button by her supervisor.
She likewise complied. Later that same day Bruster called
a meeting of the midnight shift and instructed the employ-
ees that they would not be allowed to wear union buttons
on worktime but that they would be free to wear their but-
tons during breaks and lunch periods.
Bruster issued the rule against the wearing of union but-
tons on worktime because in his own words ". . . it was an
unnecessary exposure of the resident to outside problems,
which they were all very concerned about. They worry every
day about their security and what would happen to them if
the employees were to walk off. The emotional concern of
the residents was my major concern."
This statement by Bruster of his motivation for the an-
tiunion button rule is credited. With his experience as chief
executive and administrator of the Home whose residents
average more than 80 years of age and who for the most part
are nonambulatory and in some cases senile , I find that
Bruster was qualified and competent to judge that manifes-
tations of union activities among the employees of the
Home as evidenced by the wearing of union buttons would
have a tendency to worry and upset the Home's residents.
Counsel for General Counsel produced no evidence to show
that the Home 's residents would not be upset by the appear-
ance of union buttons on the uniforms or clothing of the
employees who looked after them.
At the time of Bruster's promulgation of the rule against
the wearing of union buttons on worktime, the Home had
no similar rule against the wearing of buttons unrelated to
union activities, such as the so-called "Smile" buttons or
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Jesus Saves" button . The record shows that the Home's
employees were free to wear and have worn such buttons.
The record further shows that the wearing of "Smile" or
religious buttons has no disturbing effect on the Home's
residents whereas the display of union buttons on the per-
sons of employees would have a worrying effect on the
residents.
On July 17, 1972, Bruster fired Coram Miracle , a part-
time food service porter who holds a full-time job elsewhere
in a union machine shop , because of his adamant refusal to
remove his Local 1199 union button from his clothing. Mir-
acle "moonlights" at the Home after work hours at his
regularjob . The discharge took place on the very first day
Miracle wore his union button , some 6 months after he had
started his part-time job at the Home. He has had perma-
nent employment at his regular job for more than 20 years
and is a staunch and strong supporter of unions. In his
moonlighting job at the Rickly Hospital , Miracle 's principle
duty was to push food carts from the kitchen to the various
nurses ' stations on the five floors of the Rickly facility.
Miracle himself did not serve or wait on the residents, but
could be observed by any residents who happened to be in
the corridors while Miracle was delivering or returning the
food carts or mopping the floors of the corridors.
About a week after his discharge , Bruster made Miracle
an offer of reemployment on the condition that he refrain
from wearing a union button while on duty at the Home.
Miracle declined reemployment under that condition be-
cause of his strong union feelings and sympathies.
Discussion and Conclusions
As noted, the Respondent admits that it promulgated a
rule against the wearing of union buttons on the job, that
it threatened to discharge employees who deliberately vio-
lated the rule, and that it actually discharged Coram Mira-
cle for his refusal to remove his union button from his
person while on duty at the Home.
Respondent 's defense for these admitted actions is that its
primary function and business purpose is to operate the
Home for the comfort and care of its aged residents and that
the antiunion button measures it has taken are necessary for
the protection of the mental and physical health of the
residents. The record sustains that defense. The basic facts
show that the average age of the 500 residents of the Home
is over 80 years; that nearly 50 of the residents are in their
90's; and that virtually all of the 300 residents who occupy
the Rickly facility are bedridden or mentally incapable of
caring for their needs . For all practical purposes the Home
is the permanent residence for its residents as the conditions
for admission to the Home is an inability to make a living,
the need for a home, and the requirement that the applicant
transfer all his assets and income to the Home. Under these
circumstances the residents are more meaningly described
as the wards of the Home to whom the management owes
the highest duty.
The record stands undisputed that due to the advanced
age and physical and mental deterioration of more than
two-thirds of the residents, the Home has an established
policy and rule that its employees must refrain from discuss-
ing their personal problems or any other outside problems
with the residents in order to avoid upsetting them or caus-
ing them unnecessary worry or concern. It was as an exten-
sion of this general policy and rule that Bruster as the
administrator of the Home directed the employees to refrain
from wearing union buttons on their persons while on duty.
Bruster's uncontradicted testimony establishes that news of
union activity among the employees at the Home, as evi-
denced by the wearing of union buttons, would have a
tendency to worry and disturb the residents as to what
might happen if the employees went on strike, as they are
utterly dependent upon the employees of the institution for
their daily food and care. Even without Bruster's testimony,
as the trier of the facts I would infer and find from the
advanced ages of the residents and the serious physical and
mental infirmities of the greater majority of the residents
that the wearing of union buttons on the persons of the
employees would have a tendency to worry, disturb, and
upset the residents.
That the Respondent's rule against the wearing of union
buttons was and is intended solely for the protection of the
health of the residents and has no antiunion motivation is
evident from the fact that while Bruster prohibited the
Home's employees from wearing union buttons on the job,
he let it be known, as shown by the testimony of employees
themselves, that they were entirely at liberty to wear their
buttons at rest breaks or during their lunch periods. Thus
the employees were free to show their solidity amongst
themselves by the wearing of union buttons, but were pro-
hibited only from upsetting and exploiting the aged and
infirm residents by a showing of their union activities
through the display of their union buttons on their persons.
Although employees have a well-established right to wear
union insignia at work,10 it is equally well established that
in "special circumstances" an employer in the interest of
maintaining production may lawfully prohibit the wearing
of such insignia."
As in the instant case, the chief function of the Respon-
dent is not production in the usual industrial sense of the
term, but rather the maintenance of the health and welfare
of its aged and ailing permanent residents, I find and con-
clude that the necessity to protect the health and welfare of
the Home's residents constitutes "special circumstances"
justifying the Respondent's prohibition of the wearing of
union insignia by the Home's employees while actually on
duty. Accordingly, I will recommend the dismissal of all
parts of the complaint in Case 9-CA-7069 that charge viola-
tions of Section 8(a)(1) and (3) of the Act that stem from
Respondent's prohibition of the wearing of union insignia
on the persons of its employees while at work.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, the Ohio Masonic Home, an Ohio non-
profit corporation, is an employer engaged in commerce
and in operations affecting commerce as defined in Section
10 Republic Aviation Corporation v N L R B , 324 U S 793, 801-803 (1945).
" Mayrath Co, 132 NLRB 1628, enfd 319 F.2d 424 (C A 7, 1963); United
Parcel Service, Inc, 195 NLRB 441, Evergreen Nursing Home, supra
THE OHIO MASONIC HOME
2(6) and (7) of the Act, respectively.
2. National Union of Hospital and Nursing Home Em-
ployees, Local 1199H , an affiliate of Retail , Wholesale and
Department Store Union , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By engaging in surveillance of employees engaged in
activity in behalf of the aforementioned Union , Respondent
has engaged in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
4. That Respondent has not engaged in any of the other
unfair labor practices in violation of Section 8(a)(1) of the
Act as alleged in the complaints in Cases 9-CA-6964 and
9-CA-7069.
369
5. By discharging Coram Miracle on July 17, 1972, Re-
spondent has not engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act.
6. The unfair labor practice described in paragraph 3
above affects commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in an
unfair labor practice in violation of Section 8(a)(1) of the
Act, it will be recommended that Respondent cease and
desist therefrom.
[Recommended Order omitted from publication.]