Woonsocket Health Centre

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 652 (N.L.R.B. 1979)

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woonsocket Health Centre and United Health Care
Employees, a Division of Rhode Island Workers
Union. Cases I CA-13014, I-CA 13057, I CA-
13230, I-CA 13282, -CA 13425, CA-13486,
and I RC-15107
September 28, 1979
DECISION. ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 21, 1978, Administrative Law Judge Hen-
ry L. Jalette issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Woonsocket Health
Centre, Woonsocket, Rhode Island, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I In view of his request for a bargaining order, the General Counsel moved
to consolidate this proceeding with Case I CA 14998. 245 NLRB 668 (19791
which involves other 8(aXI) and (3) charges against Respondent. The motion
is denied. In accordance with the majority views set forth in United Dair'
Farmers Cooperative Association 242 NLRB 1026 (1979). Member Truesdale
agrees with the Administrative Law Judge that a bargaining order is not an
appropriate remedy here. In accordance with their dissent. Chairman Fan-
ning and Member Jenkins would grant a bargaining order. but will abide by
the majority position of the Board that that remedy is inappropriate.
APPENDIX
Nori(Ei To EMPLOYEES
POSTED BY ORDER OF THE
NAFIONAI LABOR REI.AIIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the law and
has ordered us to post this notice.
Wt WILl. NOT question employees about their
union activities.
WE WILL NOT tell employees that we know
who started the union activity, where meetings
are held, and who are the employees most active,
and create the impression that we are engaging
in surveillance of their union activities.
WEI: WILL NOT threaten employees with loss of
benefits and less favorable and more onerous
working conditions if they select United Health
Care Employees, A Division of Rhode Island
Workers Union, or any other labor organization,
to represent them.
WE WILL NOT threaten to close the facility if
employees select United Health Care Employees,
A Division of Rhode Island Workers Union, or
any other labor organization, to represent them.
WE WILL NOT threaten employees with trouble
if they engage in union activities again.
WE WILL NOT promise employees raises and
other benefits in order to induce them to with-
draw their support from, or to cease giving assist-
ance to, United Health Care Employees, A Divi-
sion of Rhode Island Workers Union, or any
other labor organization.
WE WII.L NOT tell employees that raises are
being withheld because of the union campaign.
WE WIl.I NOT issue warnings to employees for
wearing union insignia.
WE WILL NOT issue warnings to employees be-
cause of their union activities.
WE WILL. NOT enforce rules and policies more
strictly because employees are engaged in union
activities.
WEi WILL NOT change policies and rules be-
cause employees are engaged in union activity.
WE WILL. NOT1 place unfavorable termination
slips in the files of former employees because of
their union activities.
WE WI.l. NOT promulgate, maintain, or en-
force any rule prohibiting solicitation or other
union activities on company time while permit-
ting other types of noncompany activities during
company time, where the purpose is to hinder or
interfere with union organization.
245 NLRB No. 80
652
WOONSOCKET HEALTH CENTRE
WE WILL NOT solicit employee grievances to
induce employees to withdraw their support
from, or cease giving assistance to, United
Health Care Employees, A Division of Rhode
Island Workers Union, or any other labor or-
ganization, by the formation of an Employee
Ways and Means Committee, or any like com-
mittee, and WE WILL disband the Employee
Ways and Means Committee.
WE WILL NOT discharge employees for engag-
ing in activities protected by Section 7 of the
Act.
WE WILL NOT transfer, suspend, or discharge
employees because of their activities on behalf of
United Health Care Employees, A Division of
Rhode Island Workers Union, or any other labor
organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed them under Section 7
of the National Labor Relations Act, as
amended.
WE WILL expunge from our records the termi-
nation slips of Crystal Arruda and Linda Rich-
ards which were based on their union activities
and substitute recommendations based on their
work performance.
WE WILL rescind any changes in working con-
ditions which were made because employees en-
gaged in union activities.
WE WILL make Paula Suffoletto whole for the
wages she lost by reason of her unlawful suspen-
sion.
WE WILL expunge from our records the writ-
ten warnings issued to employees during March,
April, May, and June 1977 as part of our strict
enforcement of rules and policies to interfere
with the union activities of our employees.
WE WILL offer to reinstate Paula Suffoletto,
Ulrike Ledoux, Tina Cotnoir, Alice Sabourin,
and Donna D'Agostino to their former jobs, or,
if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their senior-
ity and other rights and privileges previously en-
joyed, and WE WILL make them whole by paying
them the wages which they lost because we dis-
charged them unlawfully.
You are free to become and remain member of
United Health Care Employees, A Division of Rhode
Island Workers Union, or any other labor organiza-
tion.
WOONSOCKET HEALTH CENTRE
DECISION
STATEMENI OF FlHE CASE
HENRY L. JAI.ETTE, Administrative Law Judge: This con-
solidated proceeding involves allegations that the above-
named Respondent violated Section 8(aX ) of the National
Labor Relations Act, herein the Act, by many acts and
Section 8(a)(1) and (3) of the Act by the transfer, suspen-
sion, and discharge of employees. The proceeding was initi-
ated by the several charges listed below' to which was con-
solidated objections to conduct affecting the results of an
election in Case I -RC 15107. On September 26 through 30,
1977,2 hearing was held in Woonsocket, Rhode Island.
Upon consideration of the entire record, including my
observation of the witnesses, and after consideration of the
briefs of the parties, I hereby make the fllowing:
FINDINGS OF FA(I
1. THE FA(TUA SEFtING;
Respondent is engaged in the operation of a nursing
home in Woonsocket, Rhode Island.3 It employs approxi-
mately 260 employees, 213 of whom were employed in the
unit stipulated by the parties to be appropriate for purposes
of collective bargaining.
Organizational activity among the employees began in
January, when United Health Care Employees, A Division
of Rhode Island Workers Union (herein called the Union)
was contacted by employee Sheila Contre.4 Several meet-
ings were held and employees were solicited to sign authori-
zation cards. On March 31, the Union filed the petition in
Case -RC 15107. and on May 6, pursuant to a Stipulation
for Certification upon Consent Election executed by the
Union on April 14 and by Respondent on April 15. an
election was held in which 104 votes were cast against the
Union, 58 votes for the Union, and 4 challenged ballots. As
noted above, timely objections were thereafter filed by the
Union. The complaint alleges that during the period pre-
ceding the election and continuing after the election, Re-
spondent engaged in a number of unfair labor practices as
hereinafter described.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and Coercion
I. Statements of supervisors
a. Chervl Hubert
The complaint alleges that on or about February 17 Hu-
bert, an admitted supervisor, interrogated employees about
ICase I-CA-13014 was filed on April 20. 1977; Case I-CA-13057 on
April 29; Case I -CA- 13230 on June 10; Case I -CA- 13282 on June 22; Case
I-CA-13425 on July 28; and Case I-CA-13486 on August 16.
:Unless otherwise indicated, all dates appearing hereinafter are 1977.
Jurisdiction is not in issue. The complaint alleges, the answer admits, and
I find that Respondent meets the Board's standard for assertion of junsdic-
tion over nursing homes.
4
The record indicates, and I find, that the Union is an organization in
which employees participate and which exists for the purpose of dealing with
employers concerning conditions of employment, and it is a labor organiza-
ton within the meaning of Section (5) of the Act.
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. This allegation is based upon testimony of
nurses aide Paula Suffoletto that on February 17 Hubert
called her to her office and asked her if she knew anything
about the Union. Suffoletto replied, "[W]hat union?" and
Hubert said "[Y]ou know what union I am speaking of."
Suffoletto said she did not have to talk to Hubert about it
and Hubert proceeded to make antiunion remarks. Hubert
admitted interrogating Suffoletto and testified she did so
after reporting to Richard Zelinski, part-owner and admin-
istrator of the facility, that union activity was going on and
he asked her to question anyone she suspected was in-
volved. I find that Hubert's interrogation had a tendency to
coerce and was violative of Section 8(aXl1) of the Act, inas-
much as it had no legitimate purpose, contained no assur-
ances against reprisal, was accompanied by antiunion re-
marks, and occurred in the context of other interrogation
and unfair labor practices.5
b. Mary Lapierre
The complaint alleges that on or about February 25 La-
pierre. an admitted supervisor, interrogated an employee
about the Union. This allegation is based upon testimony of
nurses aide Susan Dalpe that in the last week in February
she had a conversation with Lapeirre in Lapierre's office in
which Lapierre asked her if she knew anything about the
Union. Dalpe answered no, but suggested that perhaps it
would be a good thing. Lapierre proceeded to point out that
it would not. Lapierre testified but did not deny that the
foregoing conversation took place and I find for the same
reasons given above that the interrogation in question had a
tendency to coerce and was violative of Section 8(a)(1) of
the Act.
c. Leo Theroux
The complaint alleges that on or about February 25
Maintenance Supervisor Leo Theroux threatened an em-
ployee with closure of the facility if the Union came in; that
on or about March 2, he interrogated employees, created
the impression of surveillance, and made threats to an em-
ployee that if the Union came in there would be more oner-
ous working conditions and fewer benefits; and that on or
about April 25 he interrogated employees and threatened
an employee that the Respondent would close if the Union
came in.
The allegation respecting the threat by Theroux on Feb-
ruary 25 that Respondent would close if the Union came in
is predicated on testimony of Aline Paquin that Theroux
had told her that the place had just opened up and the
Union would be a very bad thing, that perhaps in 5 years a
union would be all right but it was too early then and the
Company would go bankrupt.
The allegation respecting the March 2 allegation is predi-
cated upon testimony of former employee Daniel Herrad
that he had about six conversations about the Union with
5Nurses aide Sheila Contre, Suffolelto's sister, testified that on February
25, after a meeting she and her sister had with Richard Ayotte, director of
nursing, Hubert asked them what the meeting was about and why they felt
they needed a union, saying that Respondent could give them what they
wanted. I find no allegation in the complaint relative to such a conversation
and, as the matter was not fully litigated, base no finding thereon.
Theroux in February in which Theroux told him how the
Union would not benefit the employees. Herrad testified
that Theroux said that working conditions would be
changed and the benefits would not come in that could
have come in, mentioning, in particular, holidays, Blue
Cross, paid birthday, and raises. Theroux also said that em-
ployees would not be able to get away with as much as they
did. In one of these conversations, Theroux asked Herrad if
he had signed a union card.
The allegation of interrogation by Theroux on or about
April 25 is predicated on the testimony of Supervisor Betty
Johnson that about a week before the election she over-
heard Theroux ask employees Mary Bean and Jane De-
Saulnier (incorrectly spelled DeSaune in the transcript)
whether or not they were going to vote for the Union. De-
Saulnier replied she did not know and Theroux told her
that the Union was no good, that it just played fools, and
she would not have a place to work.
Although Theroux testified, he did not contradict any of
the foregoing testimony. I find that in his conversations
with Herrad, Bean, and DeSaulnier he engaged in interro-
gation, and, for the reasons given above respecting Hubert's
and Lapierre's interrogation, that Theroux's interrogation
was violative of Section 8(a)(l) of the Act. I further find
that his remarks to Herrad respecting working conditions
constituted unlawful threats of less favorable working con-
ditions violative of Section 8(a)(1) of the Act. Theroux's
remarks to Bean and DeSaulnier, as described by Johnson,
and his remarks to Paquin were not based on any objective
facts; rather, they constituted threats that the facility would
close if the Union came in, and such threats were violative
of Section 8(a)(1) of the Act. I find no evidence that The-
roux created the impression of surveillance as alleged in
paragraph 8(o) of the complaint.
d. Lorraine Dougherty
The complaint alleges that Supervisor Lorraine Dou-
gherty threatened an employee for engaging in union ac-
tivity. The allegation is based on uncontradicted testimony
of Aline Paquin, which I credit, that on May 7 she threat-
ened to quit because she felt persecuted because of her
union activities. Dougherty asked her not to quit and
Paquin agreed to stay so long as she was not persecuted.
Dougherty told her the only way she would get into trouble
was if she tried to organize a union again. Although Dou-
gherty did not define the trouble, the statement clearly im-
plied adverse action against Paquin if she exercised Section
7 rights and was clearly coercive and violative of Section
8(a)(1) of the Act.
e. Shirley Cook
The complaint alleges that Director of Nursing Shirley
Cook, an admitted supervisor, interrogated an employee,
created the impression of surveillance, and made unlawful
threats.
According to Aline Paquin, in the latter part of Febru-
ary, Cook called her into a patient's room, closed the door
and told her that Mrs. Zelinski (director of personnel and
wife of one of the owners of Respondent) was very hurt that
654
WOONSOCKET HEALTH CENTRE
Paquin had gotten involved in the Union, and she wanted
to know why Paquin felt the employees needed a union.
Cook told Paquin that if the Union came in the workload
would be even worse, and that the center would go out of
business because Respondent could not afford the raises the
Union was demanding.
Cook admitted to a conversation about the Union with
Paquin and did not contradict Paquin's testimony. I find
that she unlawfully interrogated Paquin and made unlawful
threats of more onerous working conditions and closure of
the facility. As to the latter finding, as in the case of The-
roux, there is no showing that Cook's remarks were based
on objective facts. The allegation that Cook created the
impression of surveillance is not supported by the evidence.
f. Richard Ayotte
At the times relevant herein, Ayotte was director of nurs-
ing. The complaint alleges that on or about February 18,
Ayotte granted wage increases to employees. The allegation
is based on testimony of nurses aides Sheila Contre and
Ulrike Ledoux that on February 18, Ayotte had a staff
meeting at which he expressed opposition to the Union.
According to Ledoux, after the meeting employee Debbie
Kilpatrick complained that her rate of pay was less than
that of her boyfriend, who had not been employed as long
as she had. Ayotte said he could not understand why, that
she should get more than he did, and he told her whatever
she was supposed to get she would get, retroactively. Sheila
Contre overheard a conversation about raises and ap-
proached Ayotte to tell him she was due for a raise and to
ask when she would get it. He said he knew she was due
and asked her what she thought would be fair. She said
$2.75 an hour, which was about a 40-cent-per-hour increase
and he said fine, that she would get it in her next paycheck.
Then Ledoux approached Ayotte and said she did not think
it was fair that after the first year an employee had to wait
a year for another raise; she said why not give me a raise
now and another in 6 months. Ayotte agreed. Then, accord-
ing to Ledoux, he started to talk again about the Union,
saying that they should think about it, that it would destroy
the facility.
Ayotte admitted promising the raises described above.
According to him, however, these raises had been promised
back in December and when the employees approached
him they reminded him of the promises. That is neither
here nor there. The fact of the matter was that prior to the
Union's appearance on the scene nothing had been done to
fulfill the promises.
He also testified about an unjust situation that manage-
ment had created in the past (he did not make clear when)
with the elimination of a 6-month raise after the first year
(thus confirming Ledoux's testimony) and his desire to rem-
edy it. Considering his testimony that Respondent was "try-
ing to find out what it is that they want and what can we do
6 At the time of this conversation, Cook was in-service director. Respon-
dent denies she was then a supervisor. I find she was. Cook, who attended
supervisors' meetings, was responsible for the training of nurses aides, in-
cluding the responsibility to assign work and arrange their work schedules. I
find that these responsibilities clearly required the exercise of independent
judgment within the meaning of Section 2(11) of the Act.
for them in order to end this nonsense." and his remarks to
Ledoux as described above, the conclusion is inescapable,
and I find, that the raises described were not the implemen-
tation of existing policies, but the remedying of grievances
for the purpose of inducing employees to abandon their
support of the Union and that Respondent thereby violated
Section 8(a)(1) of the Act.
The complaint alleges that on February 25 Ayotte cre-
ated the impression of surveillance by telling employees he
knew who was active in the Union and where the meetings
were being held, that he promised an employee an immedi-
ate pay raise, promised future benefits, and interrogated
employees. These allegations are based on the testimony of
Suffoletto that on February 25 she and her sister Sheila
Contre had a conversation with Ayotte in his office wherein
he stated that he knew all about the Union: that they had
started it, had had meetings at Contre's house, and were the
most actively involved. He asked them why they would
want to do such a thing. In that same meeting, Ayotte told
Suffoletto she was in line for a pay raise and, because she
had waited so long without complaining, he would give her
a 30-cent raise which she would receive shortly. Contre sub-
stantially corroborated Suffoletto. The way she described it.
Ayotte said they did not need a union, that anything they
were asking for he could get for them.
Ayotte did not contradict the testimony of Suffoletto and
Contre and I credit it and find that Ayotte engaged in un-
lawful interrogation, created the impression of surveillance,
and made promises of a pay raise and future benefits for the
purpose of inducing employees to abandon support of the
Union, and that Respondent thereby violated Section
8(a)(1) of the Act.7
The complaint alleges that on March 21 Ayotte interro-
gated employees about the Union and made threats of clo-
sure if the Union came in. The allegations are based on
testimony of Suffoletto and Contre that, at a staff meeting,
on March 21 Ayotte said if the Union came in he and other
nurses would leave and Mr. and Mrs. Zelinski would turn
the keys over to the Union and let them manage the place.
In addition, according to Contre, Ayotte said "Why, why
are you still persisting in this? It should be stopped." Ayotte
did not contradict this testimony (according to him, he told
the employees it would be a hell of a good idea to turn the
keys over to the Union), and I credit it. I find that Ayotte's
remarks constituted threats to close the facility if the Union
came in and that his remark about why Suffoletto and
Contre were persisting in this was a reference to their union
activities and constituted unlawful interrogation.
The complaint alleges that, on or about April 21, Ayotte
told an employee that Respondent would close if the Union
came in and that there would have been new benefits but
for the union campaign. The allegations are based on the
testimony of Marie Blanchard that 2 weeks before the elec-
tion Ayotte told her and three other aides that if the Union
came in the place would close down in 2 or 3 months, be-
cause the Company could not afford a union. He also said
that any raises due as of that date were held back because
7 Respondent asserts that it had no knowledge of, nor did it condone.
Ayotte's activities. Whether or not Respondent had prior knowledge is im-
material. As he was a supervisor, it is responsible for his conduct. Moreover.
although it subsequently learned of at least some of Ayotte's activities and
requested his resignation. Respondent did not disavow his conduct.
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union, but after the election, whether or not the
Union came in, raises would go through.
I credit Blanchard, whose testimony was not contra-
dicted, and I find that Ayotte's remarks about the place
closing down constituted unlawful threats as they were not
based on objective facts. I find his remarks about the with-
holding of raises coercive, because it is settled law that in
granting or withholding raises an employer must act as he
normally would if there were no union activity. Ayotte's
remarks clearly expressed the thought that employees were
being denied raises because of the union campaign and
clearly tended to interfere with, restrain, and coerce em-
ployees in their support of the Union.
g. James Dunne
The complaint alleges that, on or about May I, James
Dunne told employees if the Union came in staff would be
cut, benefits would be lost, and Respondent would close.
The allegation is based on testimony of Linda Parenteau
that she attended a meeting the week before the election
which was conducted by Mrs. Zelinski and Dunne. Accord-
ing to Parenteau, Dunne said if the Union came in the
employees would not get a Christmas bonus, nor their
evaluations and raises at 3-month intervals. He referred to
staff parties and said those would be discontinued. He said
that the Union would ask for a 50-cent across-the-board
increase and that Respondent could not afford to give such
an increase and would have to close. Dunne testified to
meeting with employees, but he did not deny making the
statements attributed to him by Parenteau. The statements
constituted clear threats of changes in working conditions,
loss of benefits, and plant closure if the Union came in, and
they were violative of Section 8(a)(1) of the Act.
2. Changes in rules and the issuance of written warnings
The complaint alleges that Respondent changed its rules
respecting calling in sick, morning coffeebreaks, leaving the
floor where assigned, and dress code, and that it issued
many more written warnings for violation of the rules that
had been its practice.
As to the dress code and calling in sick, General Counsel
has not shown that there was a change in the rules. The
record indicates that, in mid-March, Ayotte posted rules
respecting the dress code and the call-in procedure when an
employee was to be absent. He testified that there was no
change in the dress code and the only change in the call-in
procedure was the method of logging the call. I credit him
and find that there was no change in the rules here in ques-
tion. Whether the rules were enforced when formerly they
had not been is a separate issue.
In that connection, the record indicates that, prior to
March 1977, Respondent had not issued a single warning
for not wearing a hair net as required by the dress code and
the State Department of Sanitation. On March 19, five
warnings were issued for such a breach of te dress code and
five more were issued on March 26. Thereafter, through
August 1977, six more such warnings were issued. As to
calling in absences, the record indicates two warnings for
absences without calling in in November 1976, two in Feb-
ruary 1977, three in March, nine in April, six in May, and
seven in June. These figures indicate that, with the excep-
tion of the two warnings for absences without calling in in
November 1976, all the warnings were issued after the start
of the Union's organizational campaign.
In addition, the record indicates that, between the incep-
tion of Respondent's operations in 1975 and February
1977, a total of 10 warnings had been given for all types of
rule infractions or misconduct, whereas 26 warning notices
were issued in March, 35 in April, 27 in May, 15 in June, 4
in July. and 8 in August.
The marked increase in the number of these warnings
during the peak of the union activity and for a short period
after the election suggests that the Respondent undertook
to enforce a variety of rules and to issue warning notices for
the purpose of coercing employees and discouraging them
from rendering support to the Union. The suggestion of
such a purpose is reinforced by evidence that on April 14
Respondent held a supervisors' meeting which, according to
former Supervisor Betty Johnson, Controller James Dunne
said had been called to discuss union problems. Among
other things, Dunne assertedly said they had "to become
stricter with our policies" and "Let's get these warning no-
tices written out, let's have these things documented, get
things on these people." There was a discussion of the dress
code, call-ins, and restricting employee use of patients' din-
ing areas for coffee and lunchbreaks. Dunne said to concen-
trate more on the union people, but make it legal. He said
include nonunion, too, but concentrate on the prounion
people.
Of the people present at the meeting, only Dunne and
Ayotte testified and neither directly contradicted Johnson,
although Dunne denied telling the supervisors to concen-
trate on union people. I was not impressed by Dunne's de-
meanor and I credit Johnson. Considering her testimony
and the evidence on the number of warnings issued as de-
scribed above, I find that Respondent enforced its policies
and work rules, including its dress code and call-in rule, and
issued written warnings with a purpose of interfering with,
restraining, and coercing employees in the exercise of their
right to support the Union, and that Respondent thereby
violated Section 8(a)(l) of the Act.
The allegation respecting employees leaving the floor is
that Respondent imposed more onerous working conditions
by changing the rules regarding when employees could
leave the floor, and it is based on a variety of restrictions
attested to by several employees. Thus, Mary Longtin testi-
fied that, beginning about April 14, employees were re-
quired to report to a nurse every time they left the floor,
whether for break or lunch, and to report their return. Suf-
foletto, Susan Dalpe, Ledoux, and Carol Frechette gave
similar testimony. Nor could employees leave the floor o
get linen, go to the kitchen, or get something from another
floor. According to Suffoletto and Ledoux, employees could
no longer use the porch. Longtin testified she could no
longer drink coffee at the nurse's desk. Dalpe, Frechette,
and Ledoux gave similar testimony.
Respondent did not deny that any of the foregoing oc-
curred; however, it appears to be contending that any re-
strictions on employees leaving the floor were necessary to
eliminate abuses. Thus, Director of Nursing Cook testified
656
WOONSOCKET HEAI.TH CtNI RE
that employees were abusing the coffeebreak and lunch pe-
riods by overstaying the time permitted. As to going to the
linen room, she had found several aides there at the same
time. One can imply from her testimony that the reporting
procedure described by the employees was adopted to rem-
edy the situation.
I give no credence to Cook's testimony, which lacked any
specifics. particularly as to when the alleged abuses had
occurred and how frequently. Rather, I conclude that the
changes described were part of the program adopted by
Respondent at the April 14 supervisors' meeting described
above and that they were adopted both to harass employees
because of their support of the Union and to limit and in-
terfere with their opportunities to discuss with one another
the pros and cons of union representation. Respondent
thereby violated Section 8(a)(l) and (3) of the Act.
3. Reduction in aide-hours
The complaint alleges that, from on or about April 16 to
May 7, Respondent reduced the number of aide-hours
worked at the nursing home.
In support of this allegation, General Counsel adduced
testimony of several aides of their observations of the re-
duction in the number of aides available to assist with the
work. Thus, Mary Longtin testified that there had been
nine aides on 2 North on her shift in February and March
and that about April 14 the number was reduced to four or
five. Ulrike Ledoux and Suffoletto gave similar testimony.
In addition, there was the testimony of Ledoux that Ayotte
threatened a cut in staff, of Paquin that Cook said the work
load would be even worse if the Union came in, and of
Frechette and Dalpe that Lapierre told them of staffing
cuts.
Respondent denied that it reduced the number of aide-
hours. Controller James Dunne testified that aide-hours are
generally determined by the number of patient-days that
need to be serviced, and, as patient-days fluctuate, so do
aide-hours. In support of its position, Respondent intro-
duced compilations from its records (Resp. Exhs. 12, 13,
and 14) which show exactly how many patient-days were
serviced and aide-hours worked for the period not only
from April 1977 to May, 1977. but from April 1976 to Sep-
tember 1977. In my judgment, these records support Re-
spondent's position that it did not reduce the number of
aide-hours worked. It is true that there are fluctuations in
such numbers, but as Dunne explained, because of many
variables, including employee attendance, fluctuations are
unavoidable. I credit him and find that General Counsel
has failed to establish by a preponderance of the evidence
that aide-hours were reduced because of the employees'
union activity. In making this finding, I have considered the
remarks of the supervisors to aides that if the Union came
in there would probably be fewer aides, but even if such
remarks were regarded as unlawful threats I deem them
insufficient to overcome the records produced by Respon-
dent and Dunne's explanation of the relationship of aide-
hours to patient-days. Finally, I would note that there is no
allegation that any aide was reduced in hours in violation of
Section 8(a)(3) of the Act.
4. Surveillance
The complaint alleges that on or about April 16 and on
occasions thereafter several supervisors engaged in surveil-
lance of employees in order to discourage union activity.
The allegation is based on testimony by various witnesses of
the presence of Dunne. the Zelinskis, and Supervisors Gor-
don Brown and Leo Theroux on the floor of the facilit on
various occasions in the evening when they had not hitherto
been on the premises at such times. General Counsel has
not articulated on what theory a violation should be found.
Respondent's owners, officers, and agents have the right to
be on company property when they see fit and have the
right to observe what is happening in the work area. While
it appears that employees were observed entering and leav-
ing the premises on one occasion, there is no evidence that
the area of observation, the main lobby, had been used to
conduct union activities. Significantly, the evening when
most of the surveillance attested to occurred was an evening
when it appears there was a disturbance of sorts on one of
the floors. In short. General Counsel has failed to establish
that Respondent engaged in unlawful surveillance.
5. No-access rule
The complaint alleges that, on or about April 29, Re-
spondent instituted a rule forbidding employees from re-
turning to the nursing home during off-duty hours in order
to discourage union activity, thereby violating Section
8(a)(1 ) of the Act, and that warnings to two employees for
violation of the rule were violative of Section 8(a)( ) and (3)
of the Act.
The record indicates that, on April 27, Aline Paquin and
Phyllis Gagnon were given warning notices for being found
in the 2 North hallway while off duty talking to aides who
were working. Respondent contends that such warnings
were not unlawful because it had long had a rule in effect
forbidding access to the premises to employees who were
not on duty. No such rule appears in Respondent's em-
ployee manual, and Carol Frechette testified to having vis-
ited the premises while off duty without anything being said
to her, and Aline Paquin, who was visited by Frechette,
testified she knew of no rule prohibiting visits. Respondent's
assertion of the existence of a rule appears to be predicated
on the testimony of Mr. Zelinski and of Supervisors The-
roux and Dondero. Zelinski's testimony, if anything, indi-
cates there was no rule. Thus, he stated. "We do not en-
courage visiting after working hours," and "I think there is
a policy on it." As to Theroux, his testimony reflected more
a personal preference for a prohibition than the existence of
a company rule: moreover, it is not clear from his testimony
that he was referring to a rule regarding employees as dis-
tinguished from strangers. Dondero was very explicit about
the existence of a policy, but in light of the vacillation of
Zelinski and the nature of Theroux's testimony, the absence
of a rule in the employee manual, and my general distrust
of Donero's credibility, I do not credit her.
On the other hand, despite the substantial number of Re-
spondent's employees. the only evidence that employees
were permitted access durinlg off-duty hours was the testi-
657
I)l('ISI()NS OF NA' lONAI. I.ABOR RLt. A'IONS BOARI)
niony of I rechette and Paquin, and their testimoni indi-
cated that on the occasions of' Frechette's visits she assisted,
rather than interfered with, the work of Paquin. As Paquin
and Gagnon were interfering with employees in the per-
formance of duties during worktime in work areas on April
27, Respondent had the right to exclude them even in the
absence of a rule. If the incident is regarded as the promul-
gation of a rule, as it clearly was addressed to a working
area and working time, and there is no evidence of dispa-
rate application or an intention to limit the rule to union
solicitation, the rule would not he unlawful. Accordingly. I
shall dismiss the allegation respecting the promulgation of
an unlawful rule.
Nevertheless, in light of the evidence discussed above re-
specting Respondent's laxity in the enforcement of rules on
employee conduct prior to the organizational campaign and
its deliberate use of warning notices upon the onset of the
campaign to interfere with, restrain, and coerce employees.
I am persuaded that but for the campaign, the warnings
would not have been issued. Accordingly, I find that the
warnings to Paquin and Gagnon were violative of Section
8(a)( I ) of the Act.
6. mployee Ways and Means Committee
On May 19, Respondent sent a memorandum to all em-
ployees soliciting their participation in an Employee Ways
and Means Committee to review problems affecting em-
ployees. On June 13. a meeting of the committee was held,
and on July 25, a subcommittee called the Upward's Com-
munications Committee presented certain matters affecting
working conditions to the administration for consideration.
On August 4, in a letter to all employees. Respondent re-
sponded to the matters raised.
General Counsel contends that the formation of the com-
mittee and the conduct of Respondent attendant thereto
constituted the unlawful solicitation of grievances. I agree.
Although the manner by which Respondent undertook to
discover what working conditions employees were unhappy
about is not the one typically encountered,8 and the timing
was different (that is, after the election), the rationale of the
cases cited is applicable. It is abundantly clear that the pur-
pose of the committee was to discover causes of employee
discontent, and in the absence of an explanation of the pur-
pose of the formation of the committee and the timing of its
formulation (that is, while objections were pending) the in-
ference is warranted that Respondent formed the commit-
tee to convey to employees the idea that they did not need
a union to represent them because Respondent was willing
to discuss and remedy their grievances. Respondent did not
expressly promise to remedy the grievances, and its August
4 reply to the questions presented was generally negative in
tone. However, it is noteworthy that Respondent undertook
to look into the matter of a day care center for employees'
children and implicitly promised to do something, if feasi-
ble. In all the circumstances, a finding of an implied prom-
ise to remedy the grievances of employees is warranted.
Accordingly, I find that Respondent violated Section
E.g., see Lasco Industries, Inc., 217 NLRB 527. 531 (1975), and cases
cited therein; White Pine, Inc., 213 NI RB 56. 571 (1974);: Tom Wood Pon-
tiac, Inc.. 179 NLRB 581 11969).
8(a )( I) ot the Act by its tformation of the committee and the
subsequent conduct attendant thereto.
B. lhic A/leged 8(a)(3) l iolaion.s
I. Unfavorable termination slips
The record indicates that. on March 12, Crystal Arruda
was given a good evaluation and a 15-cent-per-hour wage
increase. On May 27. she was discharged. The only evi-
dence respecting her discharge was her termination slip, ac-
cording to which the discharge was attributable to her not
reporting for duty since May 18 and not calling in. The
termination slip rated her character as poor and her indus-
try, initiative, and general efficiency as fair, and recom-
mended against her reemployment. The slip also bore the
notation: prefers working under union.
On May 1, Linda Richards was given a generally good
evaluation and a 15-cent-per-hour wage increase. On June
1. she resigned and her termination of service form bears
notations that she was extremely nonprofessional. that her
quality of work, industry, initiative, character. and general
efficienc were poor, and that she was definitely not recom-
mended for reemployment. ['he slip also bore the notation:
Definitely prounion.
General Counsel contends that the ratings given Arruda
and Richards and the recommendations against their rehire
were attributable to their union activities and that Respon-
dent thereby violated Section 8(a)(I) and (3) of the Act.
Both termination slips were prepared by Lillian Dondero
who testified on other matters, but not as to this matter.
The facts recited above are primafacie proof that the union
sympathies of Arruda and Richards entered into the poor
evaluations given them on the termination slips and the
recommendations against rehire. As Respondent offered no
evidence to overcome such proof. I find that it thereby vio-
lated Section 8(a)(1) of the Act. As there is no showing of
discrimination in conditions of employment, there is no ba-
sis for an 8(a)(3) finding.
a. May 9 warning
On May 6, Suffoletto was scheduled to begin work at 3
p.m. She did not report for work, because she was to be the
union observer during the election period of 4 p.m. to 5
p.m. She did not arrange for her absence and did not report
for work after the election. Inasmuch as her absence was
occasioned by being union observer at the election, a fact
known to Respondent, and in light of the record evidence of
other unlawful warnings, I am persuaded that the warning
notice on May 9 was not pursuant to enforcement of a valid
rule governing employee absence, but rather was motivated
by Suffoletto's union activity. I find the issuance of the
warning was violative of Section 8(a)(1) of the Act.
2. Warnings
a. The warnings of ,4pril 16
On April 16, Suffoletto, Contre, and Nancy Smith were
issued written warnings for wearing union badges and solic-
iting on company time. General Counsel contends that
these warnings were violative of Section 8(a)( 1 ) and (3) of
WOONSOC(KFT HEAI.TH C(ENIRE
the Act. General Counsel further contends that bh its issu-
ance of the warnings for soliciting on conlpany time Re-
spondent instituted an invalid no-solicitation rule.
The record indicates that, while at work on April 16, the
three employees in question were wearing badges which
said "Vote Union." and that they were ordered to remove
the badges and given the written warnings referred to
above. The wearing of union insignia at work is a right of
employees protected by Section 7 of the Act. and that right
may not be denied them absent special circumstances. The
mere fact that an employer has a dress code, as here, is not
a special circumstance which warrants depriving employees
of that right. In any event, the uncontradicted testimony of
Suffoletto revealed that Respondent permitted employees
to wear a variety of buttons in connection with holiday
themes.
Respondent, in its brief, does not appear to rely on the
dress code; rather, its position is that the insignia were cam-
paign buttons and that they had no place in a nursing home
because they could lead to arguments and dissension
among employees and could only result in detriment to pa-
tient care. In this connection. Respondent adverts to the
fact that Suffoletto pinned a union button to one of the
patients. The record indicates this was in jest, with the pa-
tient's participation, and there is no showing of any detri-
ment to patient care.
Respondent also adverts to testimony of Richard Zelinski
regarding "vote for" signs on food carts and signs with the
legend of"pig's swill" on the food carts. However, the issue
is not what appeared on food carts; the issue is the right of
the employees to wear "vote for" buttons. There is also
testimony that supervisors felt things were getting out of
hand and descriptions of an ill-defined disturbance on the
floor on April 16: however, there is no showing in what way
things were getting out of hand or that such situation or the
disturbance on April 16 was in any way attributable to the
wearing of union insignia.
In short, Respondent has shown no special circumstances
to warrant depriving its employees of their Section 7 right
to wear union insignia, and I find that in ordering the em-
ployees to remove their union insignia and issuing warning
notices to Suffoletto, Contre, and Smith. Respondent vio-
lated Section 8(aX1) of the Act.
The issuance of the warning notices was violative of the
Act for the additional reason that it was based on soliciting
on company time. Respondent adduced no evidence that
the employees who received warning notices had engaged
in soliciting on company time. Moreover, Respondent had
no rule respecting solicitation, and uncontradicted testi-
mony of Suffoletto indicates that other nonwork-related ac-
tivities were permitted.
Finally, Respondent's conduct may fairly be construed as
the institution of a no-solicitation rule, an additional
ground for finding a violation of Section 8(a)( ) of the Act,
as the rule was ambiguous and was instituted not for valid
business considerations, but to interfere with employees in
the exercise of Section 7 rights.
3. Transfer of Aline Paquin
Paquin was employed as a nurses aide from September
1975 until May 9. 1977. She worked on the first shift on the
section of the center referred to as 2 North most of the time
of her emplo ment. unail April 15. xhen she -as trrans-
ferred to I North. Paquin had heen er, aicti e on behalft o
the Uinion and she testified that. when she was transterred
bh Supervisor Lorraine Doughert. Doughertl gave her no
reason tor the transfer other than that people like her who
had been working for a long time in one section ometimes
felt that for that reason the, could ner et transferred.
Paquin accused her of transferring her because of her union
activities. and Doughert did not dens the accusation. On
Ma 8. 2 days after the election. Paquin ;as told b, Super-
visor l.apierre that she w;as being transferred back to 2
North. Lapierre told Paquin that she had been transferred
from there earlier to keep her from talking to other people
about the Union.
On the basis of Paquin's uncontradicted testimon N. u hich
I credit, and fact that the transfer occurred on the da til-
lowing the supervisors' meeting at which transferring em-
ploees to break up groups of prounion people was dis-
cussed. I find that the transter of Paquin was motivated bh
her union activities and was iolative of Section 8(a)( l } and
13) of the Act.
4. The constructive dischargecs
a. Bti Jo/.nsol
Johnson. a registered nurse. was emploed hb Respon-
dent from July 1975 to April 1976. when she resigned. She
was reemployed on March 21. 1977 by Director of Nursing
Richard Ayotte as a supervisor on the third shift. Johnson
testified that some ime in May. after the election, she was
asked by Mrs. Zelinski to discharge a nurses aide assertedl>
because the nurses aide was a friend of another nurses aide
who was sympathetic to the Union and. presumably. this
nurses aide was also s mpathetic to the Union. Because the
nurses aide was competent. Johnson refused to terminate
her.
On July 8. two nurses aides approached Johnson to com-
plain about the fact that they had been visited by detectives
of the Woonsocket Police Force in connection with an in-
vestigation being conducted into the alleged theft of linens
and other supplies from the Respondent. They were dis-
turbed about the investigation and discussed the matter not
only with Johnson but with other employees on the third
shift. Johnson had not been informed about the investiga-
tion and called Director of Nursing Shirley Cook. who re-
fused to give her any information. Johnson asked if she ;las
a suspect and Cook assured her she was not. About 4 p.m..
Administrator James Dunne called Johnson because he had
been contacted about coming to the nursing home to speak
to a group of the nurses aides who were upset about the
investigation. He told Johnson he had no intention of
speaking to them and asked her who was running the shift.
she or the aides. Johnson replied that she felt her position as
supervisor had been undermined and she could not answer
the aides' questions. She told Dunne she was resigning and
called Cook to be relieved. t about 4:3) am .. Johnll , n as
relieved and went home.
The complaint alleges that .1ohnson's separation rom
Respondent's emploment as a constructile discharge.
6,9
DI)(ECISIONS OF NATIONAL LABOR RELATIONS BOARD)
General Counsel contends that because Johnson had re-
fused to commit an unfair labor practice and discharge a
nurses aide her position was undercut, she was ignored.
criticized, and treated disrespectfully, she was refused a
transfer to day work that she had previously requested, a
special pay arrangement she had enjoyed was changed, and
an open-door policy with Zelinski was suddenly shut.
I find no merit to the General Counsel's contention. On
June 12, Johnson submitted a letter of resignation. In that
letter the only reasons she gave for resigning were that she
was held back by the administration from carrying out an
active program of teaching and supervising because of
being overloaded with charge nurse responsibilities, orient-
ing new nurses and aides, and trying to be a supervisor all
at the same time. These are reasons different from those to
which General Counsel adverts. More importantly, how-
ever, is the fact that the day following her letter of resigna-
tion Johnson arranged a meeting with Mr. and Mrs. Zelin-
ski to explain her reasons for wanting to leave. In
describing this meeting, Johnson did not specify what was
discussed, but it is clear that Respondent sought to per-
suade her to change her mind because Johnson testified that
Zelinski told her that he would speak to Johnson's immedi-
ate supervisor Shirley Cook to try and resolve some of the
problems and differences between them. This meeting oc-
curred after Johnson's asserted refusal to discharge an em-
ployee at the request of Mrs. Zelinski; and if Johnson's
refusal to obey that instruction motivated Respondent to
change her working conditions and, in effect, harass her to
cause her to quit, it would appear that Respondent would
have welcomed her June 12 resignation and would not have
attempted instead to resolve her problems.
Insofar as the events immediately preceding her resigna-
tion on the morning of July 9 are concerned, Johnson may
very well have felt insulted or slighted at not being in-
formed by Respondent that it had initiated an investigation
by the Woonsocket Police Department of what it believed
was employee theft of its property. However, Respondent
was under no obligation to advise Johnson or any of its
supervisors of this action an an inference of unlawful mo-
tive is not warranted merely by reason of its failure to do
so; it seems reasonably clear that, in order for an investiga-
tion to be effective, the fewer people forewarned about it.
the more likely the investigation will be effective. In short, I
find that the General Counsel has failed to establish by a
preponderance of the evidence that Johnson's resignation
on the morning of July 9 was attributable to changes in
working conditions put into effect by the Respondent to
cause her to resign her position because of her having re-
fused to commit an unfair labor practice. Accordingly, I
shall recommend the dismissal of the allegation of the com-
plaint respecting Johnson.
b. Linda Parenteau
Parenteau was a nurses aide employed by Respondent
from September 1976 to May 7 or 8. 1977. She worked only
on Saturdays and Sundays, and her last day of employment
was the Sunday preceding the election on May 6. She did
not return to work after the election and when contacted by
Respondent indicated she did not intend to return. The
General C'ounsel contends that Parenteau's quitting was at-
tributable to Respondent's having changed her working
conditions because of her union activity. I find no merit to
the contention.
In her testimony as to her reasons for quitting. Parenteau
stated she felt that if she returned to work she would be
discriminated against and the' would have just made it
harder because the Union did not get in. Asked to specify
what things had happened to her previously that made her
fear this, Parenteau stated that it was having to take care of
male patients by herself, being assigned to the I p.m. lunch
period, and Respondent's refusal to give her a transfer she
had requested.
In my judgment. Parenteau quit because the Union lost
the election and not because Respondent had made her
working conditions more onerous. Apart from that, as to
the matter of a transfer, there is no indication that Respon-
dent had a policy of transferring employees upon request or
even that there was a vacant position to which Parenteau
could have been transferred. As to the matter of assignment
to male patients. Parenteau's own testimony reveals that
when she spoke about the matter to her supervisor she was
told the reason was there was not enough help. As to the
lunch hour, Parenteau never complained, and the record
contains no explanation for her not alternating lunch peri-
ods with other aides. However, the f act that she was a
union supporter, without more, is insufficient basis to sup-
port an inference that she was scheduled for lunch at I p.m.
for discriminatory reasons. In any event, the matter of the
lunch hour and the other matters referred to by Parenteau
did not constitute such serious changes in her working con-
ditions, even if unlawfully motivated, to warrant a finding
that her quitting was a constructive discharge. Accordingly.
I shall recommend dismissal of the complaint allegation re-
garding Parenteau.
c. Aline Paquin
As noted earlier, Paquin had been unlawfully transferred
on April 15. On May 7, the day following the election,
Paquin testified that when she arrived at work Maintenance
Supervisor Theroux was sitting in the chair in front of the
nurses desk waiting and that he was glaring at her. She
started working and after about 15 to 20 minutes she told
him to get off her back, as she was tired of his glaring at her.
ie told her he could do whatever he wanted to and asked
her how come she was speaking to him after not speaking to
him during the union campaign. Paquin then went to Su-
pervisor Dougherty and told her she was quitting because
of Theroux. Dougherty asked her not to quit because they
were short of help and Paquin agreed to stay.
On Sunday, a rumor was going around the Health Center
that Respondent was going to have a party to celebrate the
results of the election. Paquin and nurses aide Mary Long-
tin decided to go home because of this and advised a nurse
of their plan to do so. Tlhey were called to D)ougherty's
office and told that the rumors were untrue. Dougherty told
Paquin that she had talked to Theroux and told him not to
talk to her at all about the Union nor to stare at her, and
she asked Paquin not to leave. Paquin said she wouid stay
inasmuch as Dougherty said she would not be persecuted
660hO
WOONSOCKET HEALTH CENTRE.
for her union activities. As noted earlier, Dougherty then
said the only way Paquin would get into trouble was if she
tried to organize the Union again. Paquin said she would
not because they had lost by such a large margin.
The following day Paquin was transferred back to 2
North by Supervisor Lapierre. That same day Paquin saw
Mrs. Zelinski and asked her if she wanted her to quit. Zelin-
ski told her she had never asked an employee to quit, but
she wondered why any employee stayed who felt the ad-
ministration was doing such a lousy job and providing poor
patient care. She said that Paquin had complained and was
unable to cope with 2 North, and that her attitude was poor
and was hurting the patients. Zelinski added that there were
state inspectors present and that the Health Center was
rated number one. As they were talking a state nurse passed
by, and Zelinski stopped her and asked her to tell Paquin
how great the center was. According to Paquin. Zelinski
introduced her to the inspector as Aline Paquin. "She's a
union advocate." Paquin quit that day, assertedly because
she felt that Zelinski wanted her out and she never stayed
where she was not wanted.
On the basis of the foregoing, General Counsel contends
that Paquin's quitting was a constructive discharge. I do not
agree. At the time Paquin quit, she had been retransferred
to the job location from which she had been unlawfully
removed, and Supervisor Dougherty had assured her that
steps had been taken to insure that she would not be perse-
cuted (assuming she had been) because of her union activi-
ties. Nothing occurred to indicate that Dougherty's assur-
ances were insincere. Her remark about Paquin's getting
into trouble if she tried to organize again, while unlawful.
was not like the remark in American Enterprises. Inc., 191
NLRB 866, 868 (1971). As to Zelinski's remarks, they con-
tained no threats of harassment or other discriminatory
treatment if Paquin stayed.9 Vincent's Steak House, Inc..
216 NLRB 647 (1975), and Missourian Publishing Companv,
Inc., 216 NLRB 175 (1975), cited by General Counsel, are
factually distinguishable.
On the basis of the foregoing, I shall recommend dis-
missal of the complaint as it relates to Paquin's quitting.
d. Sheila Contre
Contre was employed by Respondent in February 1976
and she quit on June 6. About 5 p.m. that day, she learned
her sister, Suffoletto, had been fired. Earlier. Ledoux had
been fired. Contre had worked with them constantly and all
three were very much involved in union activities. She testi-
fied that working with them when things were getting rough
(that is, when Respondent was making changes in working
conditions) was not half bad, because she had someone to
depend on; however, there was no way she could have
managed working on that floor alone.
The fact that Suffoletto and Ledoux had been unlawfully
discharged (as discussed below) is, in my judgment. insuffi-
cient basis to warrant a finding that Contre's quitting was a
constructive discharge. The test for such a determination is
Wbhether or not Zelinski introduced Paquin to the state nurse as a union
advocate is immaterial. Were it matenal, I could not credit Paquin Al-
though Mrs. Zelinski did not testify, the state nurse did and she denied an)
such introduction. I have no reason to discredit her.
whether the employee's working conditions were made so
onerous as to justify her quitting. Contre mna well have
preferred to work with her sister and Ledoux. but that is no
basis for holding that working with someone else created a
more onerous situation.
In brief. General Counsel adverts to Contre's testimony
concerning onerous duties to perform,. including cleaning
the utility linen, and maintenance rooms, picking up urine
samples, and cleaning irrigation sets, jobs which had either
not been done by aides in the past or had been rotated
among all the aides. She was assertedly constantly made to
work on floors other than 2 North more often than she had
before and more than other employees. In addition. nurses
would meet her at the elevator to check the time she came
in from supper. The testimony concerning these matters
was Contre's and when one considers how man, of the
complaints were over having to do certain things "more"
than others and how generalized the testimony ws as to
the frequency and duration of the onerous conditions. the
suspicion is that there was an element of exaggeration in
the description of the more onerous duties. In any event.
whatever changes may have been made in Contre's working
conditions, I find that they were insufficient to transform
her quitting into a constructive discharge. Accordingly. I
shall recommend dismissal of the complaint allegation rela-
tive to Contre.
5. The suspension of Sufloletto
On April 25, Suffoletto found a patient in a moribund
condition. She called aide Ledoux to help her with the pa-
tient and immediately went to get Charge Nurse Lillian
Dondero. Dondero came, as did another aide, with a
stethoscope and a blood pressure cup and attempted to re-
vive the patient. According to Suffoletto, when it became
apparent that the patient was dead she became very upset
and said it was a rotten shame that just because the em-
ployees had started union proceedings the patient had to
die. She said that they were short-staffed and this incident
probably would not have happened if there had been more
aides on the floor. She started to cry and left the room, went
to the patients' lounge briefly, then returned to work. Later,
Dondero approached her in a patient's room and told Suf-
foletto not to get so upset. Suffoletto started crying again
and told Dondero to leave her alone. She told Dondero that
the lady had died because the employees wanted a union,
that the patient had choked on an earlier occasion and be-
cause of a shortage of help on this occasion no one could
get to her room soon enough.
On April 27, Suffoletto was called in by Mr. Zelinski and
confronted with a report on the incident prepared by Don-
dero. Suffoletto admitted the report described in essence
what had happened, but that it contained discrepancies and
exaggerated her emotional state. The meeting ended with
the matter under advisement. The following day. Mr. Zelin-
ski called Suffoletto and told her that after reviewing the
matter, because of the slanderous statements she had made
he had no choice but to suspend her for 5 working days.
The suspension was confirmed by letter which stated, inter
a/ia, that "the damages done by your statements are un-
measurable. We will never he able to determine how these
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
public statements have affected our patients and their fam-
ilies."
General Counsel contends that Suffoletto's suspension
was unlawful in that it was a deliberate ruse to keep her
from having contact with other employees during the criti-
cal period before the election. Respondent contends that
the suspension was for the reason stated and that had Re-
spondent intended to break the Union it could have dis-
charged her instead of merely suspending her.
The issue of Respondent's motive is a very troubling one.
I have concluded earlier that Respondent had not unlaw-
fully reduced the staff, and Suffoletto's outburst attributing
the death of the patient to a lack of staff and blaming the
lack of staff on Respondent's union animus was completely
unwarranted. However, this is not dispositive of the issue.
One must still seek to search out Respondent's motive, and,
while it is true that Respondent could have chosen to dis-
charge Suffoletto rather than suspend her, the fact it did not
do so offers no solution to its motive. Respondent could
well have believed a suspension would have more effect on
discouraging employees from supporting the Union than a
discharge could.
In my judgment, several circumstances warrant the infer-
ence that Suffoletto's suspension was attributable to union
activities: namely, the fact that Suffoletto was one of the
most active union supporters, that she had previously been
given an unlawful warning, that no employee had ever been
suspended before, that no explanation was offered for giv-
ing a measure of 5 days to the suspension, and that Respon-
dent grossly exaggerated the nature of the misconduct.
The foregoing factors are self-evident; only one appears
to require comment; namely, the nature of the misconduct.
Respondent would have it that Suffoletto's remarks caused
unmeasurable damage and an indeterminate effect on pa-
tients and their families. For such results, however, there
would have to be a showing of the extent of publication of
the slanderous remark and, in particular, publication to pa-
tients or other nonemployees. In its brief, Respondent as-
serts Suffoletto's statements were made not only to other
employees "but possibly in the presence of visitors and
other patients." Respondent correctly limits itself to a possi-
bility of such publication, because the record shows little
more.
At the very outset of the crisis, there was another patient
in the same room as the dying patient, and she was being
visited by her daughter. However, the record indicates the
daughter quickly moved her mother out of the room and
Suffoletto's remarks could only be heard by Dondero and
possibly Ledoux and another aide. According to Lillian
Dondero, Suffoletto repeated the remark to someone in the
hall, but there is no showing this was a patient or visitor.
According to Mary Dondero, Suffoletto and a group of em-
ployees were discussing the death of the patient in the break
room that evening, and again it was said the patient had
died because of lack of staff which, in turn, was attributable
to their union activities. Apart from the fact that Dondero
never did identify who said that, the conversation involved
employees only.
The remarks were unwarranted even in the presence of
employees only, but they hardly acquired the dimensions
given to them by Respondent in light of the circumstances
under which they were made (i.e., the disturbing event of a
death). Accordingly, for the reasons given above, I find that
the suspension of Suffoletto was violative of Section 8(a)( 1 )
and (3) of the Act.
6. The discharges of Suffoletto and Ledoux
Ulrike Ledoux testified that on June I, at the start of her
shift, she and aides Suffoletto and Donna St. Laurent re-
ceived new instructions from Charge Nurse Rose Corcoran
relative to getting patients out of bed. According to Ledoux,
the practice had been to get the patients who wanted to or
had to get up out of bed at 3 p.m. and not return them to
bed until after 7 p.m. Corcoran's instructions required the
aides to get all patients up at 3 p.m., return them to bed at
4:30 p.m. for the aides' supper break, get the patients back
up at 5 p.m. and feed them supper, and then put them back
to bed. Patients with bed sores had to be gotten up again at
or about 7 p.m. for p.m. care. Ledoux protested that it was
impossible to follow such instructions, but Corcoran in-
sisted. and in compliance, Ledoux testified, on the evening
on June 1, she got some patients up five to six times and
some three to four times. The following day, Ledoux com-
plained to Director of Nursing Shirley Cook and explained
what she had done. Cook told her that she had to follow
instructions, but that she would look into it. Supervisor
Dondero heard of the instructions from aides (who had
been told by Ledoux). and she told Ledoux she did not have
to follow the new routine: rather, she was to get patients up
at 3 p.m. and leave them up until p.m. care.
Ledoux heard nothing further of the matter until June 4,
when she was called to the office, where she found Cook,
Dondero, Corcoran, Assistant Supervisor Elaine Beretta.
and one Jacqueline Dubois. Ledoux was asked to repeat
what had happened on June I. She did, and Rose Corcoran
denied she had given the instructions described by Ledoux.
Then, Cook told Ledoux she was fired without explaining
why.
Paula Suffoletto substantially corroborated Ledoux rela-
tive to the instructions from Cgrcoran on June 1, and her
compliance with them. She heard no more about the matter
until June 6, when she was called to the office where she
met with Cook and Dondero and was asked to recount the
events of June I. She did, and someone (Cook or Dondero,
or someone else who was present but not identified in the
record) said she had not received instructions such as she
described. There was discussion about Suffoletto's admitted
questioning on June I of her assignment to a team (two
aides work as a team) other than her normal team, with
Suffoletto being charged with having a negative attitude
and making it difficult for the nurses to maintain good pa-
tient care. Suffoletto was terminated.
General Counsel contends that the discharges of Ledoux
and Suffoletto were attributable to their union activities.
Respondent asserts that they were discharged for cause. I
conclude that they were discharged because of their union
activities and that the reasons asserted by Respondent are
pretextual. This conclusion is one not easily arrived at, yet
it is the only one that I deem to comport with the record as
a whole. It seems to me unnecessary to point out that the
issue to be resolved in the discharge of Ledoux and Suffo-
662
WOONSOCKET HEALTH CENTRE
letto is Respondent's motive and that it is rare that there is
direct evidence of an unlawful motive. Rather, the trier of
the facts must take pieces of evidence here and pieces of
evidence there and from the jumble form a judgment about
Respondent's motive.
This process has been followed here. The process has cer-
tain standard elements such as company knowledge of the
dischargees' union activities and company animus against
the Union, including the commission of other unfair labor
practices. There is no need to discuss these elements here,
because the record demonstrates beyond question that these
elements are present and that they lend support to a finding
that the asserted reasons for discharge are pretextual. This
is not to say that they are controlling. To the contrary, if
any of the elements can be said to be controlling it is the
truth or falsity of the asserted reason. Where the asserted
reason is a nebulous negative attitude, an oft-used euphe-
mism for union activity, truth or falsity is harder to resolve.
but not impossible.
Obviously, negative attitudes must be rooted in objective
conduct. In this case, Respondent has undertaken to enu-
merate 10 specific instances of objective conduct by Suffo-
letto and Ledoux to support its position (G.C. Exhs. 52 and
53). To begin with, it is difficult to give any weight to these
instances, because they were all admittedly memorialized
after the discharges and were clearly prepared in anticipa-
tion of litigation as demonstrated by the facts that of the 10
instances formulated for both employees, 4 were very simi-
lar (compare 2, 4, 5, and 7 of G.C. Exh. 53 with 1, 4, 5, and
8 of G.C. Exh. 52), and the preparer editorialized (note the
underlining of words, the use of exclamation marks, the
reference in item 10 on Suffoletto about her complaints of
overwork).
The foregoing circumstances bring into serious question
the truthfulness and accuracy of the incidents described. In
addition, there is the fact that the record contains no evi-
dence to support such items as I and 2 in the list of Suffo-
letto's poor conduct. As to item 3, the record indicates
nothing more than a protest by Suffoletto over a change in
her team assignment with no showing that she behaved in-
temperately or did anything to disrupt patient care. As to
example 6, there is no direct evidence to support it; Corco-
ran testified she did not hear the remark, but it was re-
ported to her by an orderly who was never identified and
did not testify. As to example 7, the only evidence adduced
related to a remark by Suffoletto about nurse Dubois. As to
example 8, Suffoletto admitted telling visitors they were
short-staffed as a reason for not rendering a requested ser-
vice. There is no evidence she did so with a purpose, or in a
manner, to denigrate the care given patients by the facility.
As to example 9, Respondent offered no evidence that Suf-
foletto was responsible for the situation described. At most,
it suspected Suffoletto and yet Suffoletto was never charged
with the incident, which first appeared in the postdischarge
memo prepared by Dondero. As to example 10, Suffoletto
was watching television and laughing and talking loudly
with other aides on duty. It is difficult to see where her
behavior was more reprehensible than theirs because of her
prone position, yet there is no showing they were even rep-
rimanded.
In the case of Ledoux, there was no evidence to support
items 2, 7, 8, or 10, and testimony about her objections to
floating was vague and related to an incident that occurred
apparently in April.
The most critical conduct listed among the reasons for
discharging Ledoux and Suffoletto is their conduct on June
1. According to items 4 and 5 of Dondero's memorandum.
on June 1, Ledoux and Suffoletto got patients in and out of
bed five to six times each, causing exhaustion and severe
fatigue to all patients involved, and they deliberately show-
ered and bathed patients after treatments were completed
by the treatment nurse. I conclude that the conduct de-
scribed was not the real reason for discharge fr several
reasons. As to the showering and bathing of patients. Le-
doux and Suffoletto denied showering and bathing any pa-
tients unnecessarily, and I credit them; the task is not an
easy one and it is difficult to conceive that employees would
devise a scheme of bathing patients unnecessarily just to
harass a nurse. Moreover, Respondent offered no proof
whatsoever that patients were in fact needlessly bathed.
As to getting patients in and out of bed five to six times.
Ledoux and Suffoletto testified to doing so, and the only
question is why they did so. They testified they were in-
structed by Corcoran, and I credit them. For one thing, it is
undisputed that new instructions were given on June 1, and
the only dispute is about the nature of the instructions. As I
understand the new instructions described by Ledoux, the
aides had to get patients out of bed three times and put
them back to bed three times. Accordingly, the testimony
that patients were gotten out of bed five or six times is
clearly a mischaracterization of what happened, albeit by
Ledoux. In any event, I am persuaded that Ledoux and
Suffoletto did only as they understood the new instructions.
Again, it is inconceivable to me that they would have sad-
dled themselves with needless work just to harass Corcoran.
As to St. Laurent, her testimony also indicates that new
instructions were issued by Corcoran and the only differ-
ence between her testimony and that of Ledoux and Suffo-
letto is about how patients were handled. Her testimony
that patients were not gotten up an unusual number of
times that night is not inconsistent with Ledoux' testimony
when one considers that Ledoux' testimony was a mischar-
acterization of what happened.
In any event, Respondent adduced no evidence that any
patient was in fact exhausted by any conduct of Ledoux
and Suffoletto. As a matter of fact, in its brief. Respondent
contends that the conduct described in item 4 of Dondero's
memorandum never happened. It argues the discharges
were nevertheless justified because Cook acted on Ledoux'
and Suffoletto's own admissions; yet, as Dondero's own
memorandum indicates, there may have been a misunder-
standing of Corcoran's instructions. Despite that possibility
and despite the fact that Ledoux and Suffoletto were aides
who had been rated excellent as recently as March I, they
were summarily discharged. Under all the circumstances.
including the facts that Respondent adduced no evidence to
support several of the examples of misconduct attributed to
Ledoux and Suffoletto, that the examples of misconduct
wer developed by Respondent after the discharges, that
trivial matters were relied upon, and that with the exception
of the hairnet episode no warnings were given as to those
incidents which did occur, nor was the warning procedure
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for discharge followed, and in light of Respondent's animus
against the Union and its other unfair labor practices, in-
cluding unlawful warnings and suspension of Suffoletto, the
conclusion is warranted, and I find, that the discharges
were attributable to Ledoux' and Suffoletto's union activi-
ties and the asserted reasons for discharge were a pretext.
Accordingly, I find that Respondent thereby violated Sec-
tion 8(a)(l) and (3) of the Act.
7. The Discharge of Cotnoir, Sabourin, and D'Agostino
The complaint alleges that on July 9 Respondent dis-
charged Cotnoir, Sabourin, and D'Agostino because they
engaged in concerted-protected activities. The allegation is
based on evidence that on July 8, officers of the Woon-
socket Police Department went to the residence of Tina
Cotnoir and Donna D'Agostino and interrogated them
about alleged thefts of property of the Respondent. That
evening, Cotnoir reported to work at 11 p.m., and some
time thereafter spoke to Supervisor Johnson about the in-
vestigation by the police and about her and D'Agostino's
resentment at being suspected of theft. As noted earlier,
Supervisor Johnson undertook to talk to Supervisors Cook
and Dunne about the matter. She was not satisfied with the
replies given her, and neither were certain of the employees
on her shift. At about 4:40 a.m. on July 9, nurses aides
Cotnoir, Sabourin, D'Agostino, Berthiaume, Lavallee and
Joyal, and nurse Bromage, walked out. Only Cotnoir and
Sabourin testified relative to the reason for walking out.
Essentially, it was because of the refusal of anyone from
management to come to the facility to talk the matter over
with the employees.
According to Respondent's records,' ° Cotnoir, Sabourin,
and D'Agostino were discharged that same day. Respon-
dent adduced no evidence respecting the discharges, but
according to Cotnoir the day after the walkout she called
Zelinski and asked him if she still had a job and he told her
that anybody that walked out was automatically fired.
Sabourin also called Zelinski about a week later and he told
her that what she had done was very childish and immature
and as far as he was concerned anyone that walked out was
not coming back. He did say she could speak to the nursing
director, but Sabourin never did.
General Counsel contends that the walkout of the em-
ployees constituted protected-concerted activity and that
Respondent violated Section 8(a)(l) of the Act by discharg-
ing Cotnoir, Sabourin, and D'Agostino." Respondent de-
fends by asserting that the employees quit and that, in any
event, their conduct was not protected.' As to the latter
to G.C. Exhs. 35. 36, and 48.
,l In her brief, counsel for General Counsel states that "Respondent's dis-
charge of the six employees who walked out similarly violated Section 8(aX I)
of the Act." However, while Berthiaume. Lavallee, and Joyal (incorrectly
named Elizabeth Joyce in schedule B of the amended complaint) were origi-
nally named in the complaint, the General Counsel moved to amend their
names out of the complaint (G.C. Exh. I -EE) and the motion was granted. I
do not view counsel's statement in her brief, without more, as a motion to
reinsert their names in the complaint and make no finding respecting their
separation from employment. (Whether or not Berthiaume. Lavallee, and
Joyal were discharged is not clear. According to Resp. Exhs. 5 and 6, they
resigned).
12 Respondent also asserts that General Counsel never suggested that the
activities of the employees here in question constituted protected-concerted
point, Respondent asserts that in order to be protected the
conduct in question must constitute a labor dispute within
the meaning of Section 2(9) of the Act and must relate to a
matter over which it has control. The assertion misses the
mark. To be protected, the conduct must fall within the
definition of Section 7 of the Act, and Section 7 protects,
inter alia, "concerted activities for the purpose of collective
bargaining or other mutual aid or protection." In G & W
Electric Specialty Companv, 154 NLRB 1136 (1965), the
Board held that the phrase was sufficient to assure employ-
ees protection for activities not immediately related to the
employment relationship or working conditions, but in-
directly related thereto and arising out of the employer-
employee relationships. The rationale of the Board therein
is applicable here. While the Court of Appeals denied en-
forcement of the Board's order on this point," it appears to
have done so only because it differed with the Board in its
application of the facts to the legal principle. In any event,
I am bound by Board pronouncements until the Board ac-
quiesces in contrary views or the Supreme Court rejects the
Board view. More importantly, unlike the employer in G &
W, Respondent did have some control over the matter of
the police investigation. True, it may not have had any con-
trol over any investigation in progress, but it had intiated
the investigation and the investigation related to the activi-
ties of individuals in their capacity as employees of Respon-
dent. Employees have no right to steal from their employer,
but it is a legitimate matter of common concern if their
employer projects them into a police investigation. Employ-
ees may well seek to establish guidelines with their em-
ployer before he resorts to the police. In short, employees
who engage in concerted activity over a matter such as is
here described are engaged in activity for mutual aid and
protection and may not be discharged for such activity.
The question remains whether when the employees
walked out they were quitting or engaging in a concerted
work stoppage to protest not only what had happened, but
what might happen thereafter. According to Cotnoir, the
police had told her that they had a list of employees who
were suspects and she reported this to employees. This was
a matter of concern to Sabourin, who felt her name could
be on the list and it could happen to her. The record indi-
cates clearly that the employees walked out in concert, and
that they did so after unsuccessful efforts to meet with man-
agement. In my judgment, the record supports a finding
that in walking out the employees were protesting Respon-
dent's refusal to meet and that they were not quitting their
employment. As to Respondent's assertion that they quit,
there is no evidence to support it except that D'Agostino
did not offer to return to work. An inference that she quit is
not warranted from this fact alone, particularly since her
activity and that therefore it defended on the ground that the quits were
provoked by illegal conduct on its part and were, in effect. constructive
discharges. The complaint. as amended, is hardly a model of good drafts-
manship, inasmuch as it lumps together in paragraph 10(e) discharges and
constructive discharges and in paragraph 12 suspensions, transfers, warnings,
and discharges; nevertheless, upon careful reading it can be said to allege the
discharge of the employees here in question because of "other concerted
activities" and Respondent cannot be heard to complain since it neither filed
a motion for a more definite statement nor raised the issue of the adeqacy of
notice at the hearing.
1 NL.R.B. v. G & W Elecrnc Specirlty Company, 360 F.2d 873 (7th Cir.
1966).
664
WOONSOCKET IEAI.TH (CENTRE
roommate had called Respondent and been told she was
fired for walking out.
Finally, I find, contrary to Respondent's assertion, that
the Respondent knew that the employees had walked out in
concert. This is clear from Johnson's testimony, as well as
that of Director of Nursing Cook. That Respondent may
not have known the purpose of the walkout or the employ-
ees' demands is no defense. N. L. R. B. v. Washington .4 hlni-
num Company, Inc.. 370 U.S. 9 (1962). 1 also find that em-
ployees did not leave patients under circumstances such as
to forfeit the protection of Section 7 and that their activity
was not subject to Section 8(g) of the Act. Walker Methodist
Residence and Health Care Center. Inc.. 227 NLRB 1630
(1977).
For all the foregoing reasons. I find that Respondent vio-
lated Section 8(a)( ) of the Act by discharging Cotnoir,
Sabourin, and D'Agostino.
III. THF OBJ('IIONS
The Union filed five objections to conduct affecting the
results of the election, one of which (objection 4) was with-
drawn. The remaining objections are as follows:
"1. Employer created an atmosphere of coercion and
intimidation on the job in the weeks previous to the
election by altering the work assignments, and condi-
tions of employment of employees in the bargaining
unit.
"2. Employer hastily promulgated an overly broad no-
solicitation rule and then enforced the rule in a biased
and unfair manner. Employer prevented all employees
from campaigning in favor of petitioner while permit-
ting campaigning against petitioner.
"3. On April 29, 1977 employer suspended Paula Suf-
foletto, a leading union supporter for the entire week
previous to the May 6 election.
"5. By these and other actions the Employer created
conditions which Petitioner feels effectively prevented
employees from freely exercising their right to self or-
ganization and which destroyed the atmosphere con-
ducive to a fair election."
The petition was filed on March 31 and the election was
held on May 6. It is evident from the unfair labor practices
found above that during that period Respondent engaged in
objectionable conduct affecting the result of election. Thus.
on April 15. Aline Paquin was transferred out of 2 North
because of her union activities; on April 25, Theroux en-
gaged in unlawful interrogation and made an unlawful
threat of plant closure; on April 21, Ayotte made unlawful
threats of plant closure and threats to withhold the granting
of raises; on May 1, Dunne made unlawful threats of
changes in working conditions and plant closure: during the
preelection period Respondent enforced its rules with
greater strictness and issued many more warnings for viola-
tion of the rules because of the employees' union activities
Respondent made changes in working conditions respecting
coffeebreaks. both as to reporting leaving and returning and
the locus of the breaks, and reporting leaving the floor, and
these changes were motivated by the employees' union ac-
tivities; Respondent interfered ith the Union actii. tlcs of
its employees bS issuing warnings to Sufibletto, (ontre. and
Smith for wearing "Vote Union" badges and ordering them
to remove them, and by instituting an in.alid no-solicita-
tion rule: and by suspending Suffoleltto on April 27. These
unfair labor practices also constituted objectionable con-
duct tending to interfere with the emploxees' exercise of a
free choice in the election. Accordingly. I find merit in the
objections and shall recommend that the election be set
aside.
1'. lit iFFF( O l1l t UNFAIR ABOR RA( I(S '(/N
( ()OMMI( 1I
The activities of Respondent set forth in section I above.
occurring in connection with its operations described
therein have a close. intimate and substantial relation to
trade. traffic, and commerce among the several states, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. iltt RMFI)Y
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
As I have found that Respondent suspended Paula Suffo-
letto in violation of the Act, I shall order it to make her
whole for any loss of earnings she suffered by reason of the
suspension by payment to her of a sum of monev equal to
that which she normally would have earned as wages dur-
ing the period of her suspension, with interest thereon com-
puted in the manner set forth below.
As I have found that Respondent discharged Paula Suf-
foletto, Ulrike Ledoux. Tina Cotnoir. Alice Sabourin, and
Donna D'Agostino in violation of the Act, I shall order it to
offer them immediate and full reinstatement to their former
jobs, or, if such jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges. and to make them whole for any loss
of earnings they may have suffered by reason of their un-
lawful discharge by payment to them of a sum of moneN
equal to that which they normally would have earned as
wages, from the date of their discharge to the date of the
offer of reinstatement, less net earnings, and with interest
thereon to be computed in the manner prescribed in F. W14
Woolworth Companv, 90 NLRB 289 (1950). and Florida
Steel Corporation, 231 NL.RB 651 (1977).
As I have found that the recommendation on the termi-
nation slips of Crystal Arruda and Linda Richards were
based on their union activities. I shall order Respondent to
expunge them from their records, substituting recommen-
dations based on their work performance.
As I have found that the Employee Ways and Means
Committee was formed as a means to solicit employee
grievances and remedy them in order to induce employees
to cease giving support to the Union. I shall order Respon-
dent to disband it.
" See. generalk. Irs Plumbinghs Ietufcl (l. 13 N RB 71h I1962)
6h
DE(ISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have found the Respondent changed various work-
ing conditions by restricting employees to various break
areas and restricting their movements from the floor in vio-
lation of the Act. I shall order it to rescind any changes
made.
As I have found that Respondent undertook a strict en-
forcement of its rules and policies and issued written warn-
ings as part of such enforcement for the purpose of interfer-
ing with. restraining, and coercing employees. I shall order
it to expunge from its records the written warnings issued
during March. April, May, and June. and to cease and de-
sist from enforcing its rules and policies for the purpose of
interfering with, restraining, and coercing employees in the
exercise of their Section 7 rights.
The unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act. I shall therefore place Respondent under a broad
order to cease and desist from in any manner infringing
upon the rights of employees guaranteed in Section 7 of the
Act. N.L. R.B. v. Entwistle Mfg. Co.. 120 F.2d 532. 536 (4th
Cir. 1941).
The parties stipulated that there were 213 employees in
the appropriate unit for the payroll period ending March
27. and General Counsel introduced authorization cards
signed by 84 of them, or slightly in excess of 39 percent.
Despite the fact that the Union never acquired majority
status, General Counsel requests the issuance of a bargain-
ing order relying on N.L.R.B. v. Gissel Parking Co. Inc., 395
U.S. 575 (1969). wherein the Supreme Court (at 613 614)
indicated that in "exceptional" cases, marked by "outra-
geous" and "pervasive" unfair labor practices, the imposi-
tion of a bargaining order, "without need of inquiry into
majority status on the basis of cards or otherwise" might he
an appropriate remedy if the unfair labor practices were of
"such a nature that their coercive effects cannot be elimi-
nated by the application of traditional remedies, with the
result that a fair and reliable election cannot be had." In
my judgment, this is not such a case and I shall not recom-
mend the issuance of a bargaining order.
CONCL.USIONS OF LAW
1. Woonsocket Health Care Centre is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Health Care Employees, a Division of Rhode
Island Workers Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties; threatening employees with loss of benefits and less
favorable and more onerous working conditions, trouble,
and plant closure; promising employees raises and other
benefits; creating the impression of surveillance; telling em-
ployees raises were being withheld because of their union
activities; soliciting grievances by means of the Employee
Ways and Means Committee: placing unfavorable termina-
tion slips in the files of former employees: enforcing its poli-
cies and work rules more strictly; and issuing written warn-
ings and changing policies and rules respecting leaving the
floor and where employees could take their breaks because
employees were engaged in union activities: issuing warn-
ings to employees because of their union activities: and is-
suing warnings to employees for wearing union insignia and
instituting an invalid no-solicitation rule: and by discharg-
ing Tina Cotnoir. Alice Sabourin. and Donna D)'Agostino
because they engaged in activities protected by Section 7 of
the Act, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)( I) and
2(6) and (7) of the Act.
4. B transferring Aline Paquin, suspending and dis-
charging Paula Sufloletto, and discharging Ulrike Ledoux.
because of their union activities. Respondent has engaged
in, and is engaging in. unfair labor practices within the
meaning of Sections 8(a(K I) and (3) and 2(6) and (7) of the
Act.
5. eneral Counsel has not established b a preponder-
ance of the evidence that Respondent violated Section
8(a)(1) and (3) of the Act by reason of the separation from
employment of Betty Johnson, I.inda Parenteau. Aline
Paquin. and Sheila Contre.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORL)E.R
The Respondent. Woonsocket Health C'entre. Woon-
socket. Rhode Island, its officers, agents, successors, and
assigns, shall:
I. ('ease and desist from:
(a) Interrogating employees about their union activities
in a manner or under circumstances constituting interfer-
ence with, restraint, and coercion of employees in the exer-
cise of rights guaranteed by Section 7 of the Act.
(b) Threatening employees with loss of benefits and less
favorable and more onerous working conditions if they se-
lect the Union to represent them.
(c) Threatening to close the facility if employees select
the Union to represent them.
(d) Threatening employees with trouble if they engage in
union activities.
(e) Promising employees raises and other benefits in or-
der to induce them to withdraw their support from. or to
cease giving assistance to, the Union.
(f) Creating the impression of surveillance by telling em-
ployees that it knows who started the union activity, where
meetings are held, and who are the employees most active.
(g) Telling employees that raises are being withheld be-
cause of the union campaign.
(h) Issuing warnings to employees for wearing union in-
signia.
(i) Issuing warnings to employees because of their union
activities.
0) Soliciting employee grievances to induce employees to
withdraw their support from,. or to cease giving assistance
" In the event no exceptions are tiled as provided h Sec. 102.46 it the
Rules and Regulations ol[ the National Labor Relations Board, the indings,
conclusions, and recommended Order herein hall. as provided in Sec. 102.48
of' the Rules and Regulations. be adopted by the Board and become its
findings, conclusions. and Order. and all objections theretio shall be deemed
waived for all purposes.
666
WOONSOCKET HEALTH C(ENTRE
to, the Union, by the formation of an Employee Ways and
Means Committee, or any like committee.
(k) Placing unflavorable termination slips in the tiles of
former employees because of their union activities.
(I) Promulgating, maintaining, or enforcing anN rule pro-
hibiting solicitation or other union activities on compan
time while permitting other types of noncompanv activities
during company time, where the purpose is to hinder or
interfere with union organization.
(m) Enforcing rules and policies more strictly because
employees are engaged in union activities.
(n) Changing policies and rules because employees are
engaged in union activities.
(o) Interfering with, restraining, or coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
by discharging employees for engaging in protected actnli-
ties.
(p) Discouraging membership in or activities on behalf
of United Health ('are Employees, a Division of Rhode
Island Workers Union, or any other labor organization of
its employees, by transferring, suspending, and discharging
employees because of their activities on behalf thereof or
otherwise discriminating in regard to their hire or tenure of
employment, or any terms or conditions of employment of
its employees.
(q) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations. to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection
guaranteed by Section 7 of the Act, or to refrain from any
or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Paula Suffoletto Ulrike Ledoux. Tina Cotnoir.
Alice Sabourin, and Donna D'Agostino immediate, full.
and unconditional reinstatement to their former jobs, or. it'
such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimination
against them by payment to them of a sum of money equal
to the amount they normally would have earned as wages
from the date of their discharge to the date of their rein-
statement, in a manner set forth in the section entitled "The
Remed, ."
(b) Make Paula Suffoletto whole tfr the wages she lost
by reason of her unlawful suspension.
(c) Expunge from Respondent's records the termination
slips of C('rstal Arruda and Linda Richards. substituting
recommendations based on their work performance.
(d) I)isband the Employee Wa'; s and Means Committee
formed to solicit employee grievances in order to induce
employees to cease giving support to the Ilnion.
(e) Rescind any changes in working conditions instituted
because of the employees' union acti ities.
(f) Expunge from Respondent's records written arn-
ings issued during March, April. May. and June 1977 which
were issued pursuant to Respondent's strict enfircement of
its rules and policies for the purpose of' interfering with.
restraining, and coercing emploNees in the exercise of rights
guaranteed by Section 7 of the Act.
(g) Preserve and, upon request. make aailahle to the
National Labor Relations Board and its agents, for exami-
nation and copying, all payroll records. social security pay-
ment records. timecards. personnel records and reports, and
all other records relevant and necessarN to a determination
of the amounts of backpay due under the terms of this
recommended Order.
(h) Post at its Woonsocket. Rhode Island, facilit b copies
of the attached notice marked "Appendix."'" Copies of said
notice on forms provided b the Regional Director for Re-
gion 1. after being duly signed by the Respondent's repre-
sentative, shall be posted bh it immediately upon receipt
thereof. and maintained b it for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered. defaced, or covered by any other material.
(i) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps Respon-
dent has taken to complv herewith.
I IS RI lII!R RE( OMMI-tl)t-D that the election conducted
in Case I RC 15107 be set aside and that a second election
be directed.
16 In the event that this Order is enforced by a Judgment of a t nited
States Court of Appeals. the words in the notlce reading "Posted bs Order of
the National L.ahor Relations Board" shall read "Posted Pursuant t a Judg-
ment of he United States Court of ppeals Enforcing an Order of the Na-
tional Ltabor Rela ions Board"
667