Lexington Convalescent & Nursing Home, Inc.

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lexington Convalescent & Nursing Home, Inc. and Retail Store Employees Union, Local 789, affiliated with Retail Clerks International Lexington Convalescent & Nursing Home, Inc. and Retail Store Employees Union, Local 789, affiliated with Retail Clerks International Association, AFL- CIO, Petitioner. Cases 18-CA-2985 and 18-RC- 8255 April 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 16, 1970, Trial Examiner John P. Von Rohr issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also recommended that the election conducted in Case 18-RC-8255 be set aside and the petition therein be dismissed. The General Counsel filed exceptions to the Recommended Order and a brief in support thereof. 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 powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, the brief and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent, Lexington Convalescent & Nursing Home, Inc., St. Paul, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Order, as so modified. ' We adopt pro forma the Trial Examiner's findings, conclusions, and recommendations to which there were no exceptions. 1. Delete paragraph 2(a) of the Recommended Order and substitute the following: (a) Offer to Lola Finney and Lorraine Kippels immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." 2. Substitute the attached notice for the Trial Ex- aminer's notice. IT IS FURTHER ORDERED that the petition in Case 18-RC-8255 be, and it hereby is, dismissed, and that the election held in that case be, and it hereby is, set aside, and all proceedings in that case vacated. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees or applicants for employment about their union sympathies or activities. WE WILL NOT refuse to bargain collectively with Retail Store Employees Union, Local 789, affiliated with Retail Clerks International Associa- tion, AFL-CIO, as the exclusive representative of employees in the appropriate bargaining unit. The appropriate unit is: All our employees employed at our Lexing- ton Home, excluding office clerical em- ployees, licensed practical nurses, registered nurses, the administrator and other supervi- sors and guards as defined by the Act. WE WILL bargain upon request with the above- named Union as the exclusive representative of all employees in the unit described above with respect to wages, hours, and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agree- ment. WE WILL NOT discourage our employees from joining or assisting the above-named Union, or any other labor organization, by discharging them or otherwise discriminating against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. 190 NLRB No. 30 LEXINGTON CONVALESCENT HOME WE WILL offer to Lola Finney and Lorraine Kippels immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority and other rights and privi- leges, and make them whole for any loss of pay suffered when we discharged them for joining and assisting the Union. All our employees are free to become or to refrain from becoming members of the above-named Union or any other labor organization. LEXINGTON CONVALESCENT & NURSING HOME. INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725- 2611. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge and an amended charge filed on May 13, 1970, and June 15, 1970, respectively, the General Counsel of the National Labor Re- lations Board, for the Regional Director of Region 18 (Min- neapolis, Minnesota) issued a complaint on July 30, 1970, against Lexington Convalescent & Nursing Home, Inc., herein called the Respondent or the Company, alleging it had engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. This case was consolidated with a proceeding involving objections to conduct affecting the results of an election (18-RC-8255). The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Exam- iner John P. von Rohr in St Paul, Minnesota on October 6, 7, and 8, 1970 All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from the General Counsel and the Respondent on November 2, 1970, and they have been carefully considered.' ' The General Counsel's unopposed motion to correct the transcript is hereby granted 71 Upon the entire record in this case, and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Lexington Convalescent & Nursing Home, Inc., is a Min- nesota corporation with its principal place of business located in St. Paul, Minnesota, where it is engaged in the operation of a convalescent and nursing home During the calendar year preceding the hearing herein, Respondent derived in excess of $100,000 in gross revenues from the operation of its home. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union , Local 789, affiliated with Retail Clerks International Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that on March 23, 1970, Respondent discharged Lorraine Kippels and Lola Finney, both em- ployed as nurses aides, in violation of Section 8(a)(3) of the Act. Respondent defends on the ground that these employees voluntarily terminated their employment, or alternatively, that it had ample grounds for discharging them because they refused to pass medications, this being a part of their normal duties. The complaint further alleges, and Respondent denies, that on and after March 17, 1970, Respondent refused to recog- nize and bargain with the Union in violation of Section 8(a)(5) of the Act; and further that Respondent unlawfully interrogated employees on March 11, 1970, and that it unlaw- fully interrogated job applicants on June 14, 1970. B. The Organizational Activities Having been contacted by employee Laurie Meyer, the union representatives, Kenneth Kokaisel and John Shirts, went to Respondent's nursing home on the early evening of March 9, 1970 2 Taking the elevator to the third (top) floor, they were met by Lorraine Kippels, one of the alleged dis- criminatees, and directed to a day lounge at the end of the hall. There they met with a group of approximately 11 em- ployees, including Lola Finney, the other alleged dis- criminatee herein. After discussing such matters as employee grievances and union contacts with other nursing homes, all employees in attendance signed union authorization cards. At the conclusion of the meeting Kokaisel and Laurie Meyers circulated around the various floors and solicited other em- ployees to sign union cards. Before leaving, the union repre- sentatives left blank authorization cards with Kippels so that she could continue soliciting. The two union representatives came to the home again on the evening of March 10, 1970,' and this time met with Kip- pels and some of the other employees in a room adjacent to the nurses' station on the third floor. Kippels and some of the other employees at this time gave Shirts signed authorization cards which they had obtained from other employees. During the meeting Finney came into the room and asked for and was ' Since the issue of company knowledge has been raised in this case, it is necessarily relevant that the employees' organizational activities be set forth in some detail ' All dates hereinafter refer to the year 1970, unless otherwise indicated 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given two or three blank authorization cards. She returned them a short while later with the signatures of other em- ployees. After the meeting the union representatives went to the nurses stations on each floor of the home where they copied the names of all employees from the work schedules posted at each of these stations. Louis Thayer is co-owner, vice president, and administra- tor of Respondent nursing home. Thayer testified that he first learned of the organizational activities on March 12 , at which time he received a telephone call at home from an anonymous female who advised him that "Mr. Thayer, the union men are here disrupting our work, trying to get everybody to sign union cards." According to Thayer, on March 14, he received a similar anonymous telephone call advising him that union activities were taking place at the home. On March 13, the union representatives returned to the home where they were met by Kippels on the third floor at the room adjacent to the nurses' station. Kippels at this time gave them additional signed authorization cards . Kippels, it may be noted, credibly testified that she obtained a total of 10 or 12 signed authorization cards as the result of her efforts during the organizational campaign. On March 15, Union Representative Shirts met Lola Fin- ney at the nurses' station on the third floor, at which time she gave him several signed authorization cards.' On March 17, 1970, the Union at this time having obtained a total of approximately 47 signed authorization cards, Kokaisal and Shirts came to the Home and met with Thayer for the purpose of requesting recognition. The details of this meeting are related to the Section 8(a)(5) aspect of this case and are discussed later herein. C. Interrogation of Employees and Applicants for Employment About two days after the inception of the organizing cam- paign, Supervisory Nurse Ethyl Dahl held a conversation with employees Kathy Gardis and Judy Dahl (no relation), during the course of which she brought up the subject of the Union. Relating first an unpleasant experience which her husband had with a union, Dahl asked Gardis if she had signed a union card . Gardis said she had . She then asked the same question of Judy Dahl. Judy said she had not. Nurse Dahl thereupon shook her finger at Judy and told her that "she had better not have signed one."5 On about June 15, 1970, Janet Woodford and Jacqueline Bell came to Respondent 's home to apply for jobs as nurses aides, where they were interviewed by O'Connell. After dis- cussing their qualifications, O'Connell finally asked these em- ployees what they thought about unions, at the same time stating there would be no job for them if they were for the union . When Bell made no response, Woodford stated in effect that she had no previous experience with a union. 0'- Connell thereupon stated that Respondent was already pay- ing union scale, that the Union couldn't do anything for the employees and that all it did was to take their money. The conversation then turned to other matters and the applicants were finally advised that they would be hired.' ' Testimony of Shirts. Finney testified that although she passed out union cards , the total of signed cards returned to her was "under five." ' The incident above is set forth in accordance with the undenied and corroborated testimony of Gardis and Judy Dahl. Conceding that she brought up the subject of unions while interviewing Woodford and Bell , O'Connell gave a different version of the conversation and did not acknowledge that she interrogated the employees , as they testified . Having considered the testimony of O'Connell, I credit the sub- stantially corroborative testimony of Woodford and Bell , as set forth above. I find the questioning by Supervisor Dahl of employees as to whether they signed union authorization cards, particu- larly when considered with the other unfair labor practices found herein, to be violative of Section 8(a)(1) of the Act. Similarly violative of the Act was O'Connell's interrogation of job applicants concerning their union sympathies.' D. The Termination of Lola Finney and Lorraine Kippels The Respondent nursing home commenced operations in September 1968. Mrs. Lola Finney and Mrs. Lorraine Kip- pels were hired as nurses aides ' on October 21, 1968, and March 6, 1969, respectively. In contrast to the many younger people employed by the home, it may be noted that Finney and Kippels are of mature age. Lucia O'Connell, the director of nursing at the home and next in charge under Administra- tor Louis Thayer, described Finney and Kippels as being "excellent aides." Kippels described the duties of the nurses aides as includ- ing "everything that involved patient care work , plus mop- ping floors, washing walls, setting up and passing food trays, doing treatments" and the like. In addition to the foregoing, some of Respondent's nurses aides are also involved in the passing of medications. The "passing of meds," as it is fre- quently referred to in the record, simply involves the regular setting up and distribution of various medicines, in pill or liquid form, but excluding narcotics, to the patients.' It ap- pears that Finney and Kippels, along with some of the other nurses aides , began participating in the passing of medicines shortly after they were hired. Indeed, the evidence reflects that by the early part of 1969 this work took up a substantial portion of the time of the various nurses aides who were assigned to perform it. As Respondent points out in its brief, the reason for having nurses aides pass medications is to free the time of licensed personnel for other duties, this appearing to be a common practice in nursing homes in general. In order to better qualify the nurses aides to perform the work described above, it is undisputed that from approxi- mately July 15 to August 15, 1969, the Respondent con- ducted a training program to instruct the nurses aides in the setting up and administration of medications . This training was not given to all of the nurses aides, but only to those selected by the Respondent especially for this purpose. A total of eight, including Finney and Kippels, were assigned to attend the training classes.' Although Finney attended only two or three of the classes, it is undisputed that she, like the others, was given a competency test in the passing of medica- tions . Finney passed the test and was regarded as qualified as ' This interrogation was inherently coercive and it is immaterial that the applicants were subsequently hired . Bendix- Westinghouse Automotive Air Brake Co., 161 NLRB 789, 791-792. ° This work was described in greater detail by Mrs. Kippels as follows: We were required to go in the med room , take the cards they have these little med cards made out for each patient , what the medication is, the amount of medication given and the hour of the day it is given. We put these in order by room number, then we set up the 6 o'clock and the 9 o'clock p .m. medications , and the 4 : 30 medications and there were a few 4 o'clock medications. Then when we were finished with this we would pass the 4 and 4:30. There were a few patients that had 4 o'clock, a few that had 4:30. We passed those. After we were done with that we went out on the floor and did a few things, charted our 4 o'clock medications in the book. Then after we were done helping with all the other odd jobs, we went back and passed our 6 o'clock medications. We charted those . Then we went back out on the floor and did what we could and then passed our 9 p.m. medications , charted those and con- tinued on with our work. Thus , attendance of the training classes was not on a voluntary basis. Beverly Moe, assistant supervisor of nurses , informed Kippels and Finney that they had been selected to take the training. LEXINGTON CONVALESCENT HOME the others.10 Upon completion of the course, Finney and Kip- pels continued to spend a substantial portion of their time passing medications, just as they had done prior to the course. As background to the hereinafter discussed refusals of Fin- ney and Kippels to pass medications in March 1970, which Respondent asserts as the basis for their terminations, it is noteworthy that these two employees had earlier complained about this aspect of their work as nurses aides. Thus, Finney credibly testified that on about December 19, 1969, she became upset upon learning that she had given the wrong medication to a patient. She thereupon apprised Thayer and O'Connell of what had happened and at this time stated she no longer wished to pass out medications. Thayer compli- mented her for alertly discovering the mistake and stated that she would profit by the experience. Finney thereafter con- tinued to do this work. In about late January 1970, Kippels and Finney ascertained that various pills, medicines, and liquors were missing from the medicine room where they were kept under lock and key In keeping with their duties, each of these employees had keys to the room. Kippels told several nurses that she did not wish to be responsible for the missing items and therefore she did not wish to pass the medications. She continued to do so, however. In early Feb- ruary 1970, Finney observed that certain medicines and liq- uors were missing She reported the matter to O'Connell, stated that she felt she was a "suspect" because she had a key in her possession, and at the same time advised O'Connell that she no longer wished to pass medications to the pa- tients " Notwithstanding this protestation (to which Kinney said O'Connell made no response) Kinney thereafter con- tinued in this work. In about the middle of February 1970, Kippels went to O'Connell and advised that she did not wish to continue distributing medications to the patients because of the apparent stealing that went on from the medicine room However, there again being no response from O'Con- nell, Kippels continued to perform this task. On March 15, 1970, Kippels ascertained that one of the patients had allegedly been over tranquilized because of an alleged overdose of tranquilizers, could not be awakened, and was taken to a hospital 12 In the belief that this occurred, Kippels went to Mrs Martha Corey, concededly a supervi- sory nurse, and advised Corey that she would no longer pass medications to the patients. It is undisputed that she did not do so from this time until her termination on March 23, 1970. On March 19, 1970, Mrs. O'Connell held a periodic meet- ing with all of the nurses aides in the chapel area of the nursing home. According to the credited and corroborated testimony of Finney and Kippels, during this meeting both of these employees advised O'Connell that they would no longer pass out medications Specifically, Finney told O'Connell that " ° At one point during the course, O'Connell stated that those who passed out medications would receive a wage increase Eventually, upon comple- tion of the course, all except one of the employees who took the course received a 10 cent increase However, the record leaves some doubt as to whether the increases were given as compensation for completing the course or whether these were normal merit type increases which would have been given in any event While I credit the testimony of Finney and Kippels to the effect that the only wage increases they ever received resulted from their individually going in to see Thayer and asking for one, I deem the matter as of little significance in determining the issues herein " The credited testimony of Finney I do not credit the testimony of O'Connell, whose credibility is discussed later herein, that neither Finney or Kippels ever advised her that they objected to passing medications until the Thursday preceding their termination 11 While it appears that there was some difficulty in arousing this patient, Respondent witnesses testified that the patient fell and broke his leg and that this was the reason for his being taken to the hospital Without making any finding that this patient in fact was overtranquilized, I do find Kippels was led to the belief that this is what occurred 73 she had not passed meds since March 15 and that she did not intend to do so in the future. She again gave her reasons, as stated above Kippels also told O'Connell that she would not pass out meds any longer, stating that she did not want to be responsible for passing out wrong medications and that she had heard she would be liable for any such mistake in a civil suit. At about this time another nurses aide, Mrs. Schlinger, spoke up to say that she would not pass meds any more because her attorney advised her that she would be held liable in a civil suit if she made any mistakes. O'Connell replied merely that her (nurses') license would cover the nurses aides in the event of any such mistake Moreover, notwithstanding the statements of the three nurses aides that from thenceforth they would decline to pass meds, O'Connell did not counter with any statement to the effect that this would remain a part of their duties or that they would be subject to disciplinary action if they did not perform this work On March 21, 1970, Kippels was broached by Mrs. Martha Corey, a supervisory nurse, who directed her to set up and pass medications. Kippels refused, stating that she had "told them" she would not pass out any more medications Corey became angry and reported the matter to Lawrence Trana, the assistant administrator and a co-owner of the nursing home Trana and Corey thereupon went to Kippels and Trana asked that she do the work. Kippels at first refused. Stating first that she had informed O'Connell that she no longer would perform this job, she proceeded to give a de- tailed account of her reasons for wishing to discontinue this job. When she finished Trana finally stated, "Well, as a favor to me would you do them, please do them tonight, and I will talk to Mr. Thayer and Mrs. O'Connell about your grievances on Monday " Kippels replied, "All right, Mr. Trana, as a favor to you I will do it tonight, but now you know that I have informed you also, I am not going to do it anymore This is the last time."" Following a weekend which she had off, Finney reported to work at 2:30 p.m. on Monday, March 23, 1970 After starting to work on the third floor, she was told that she was being rotated and should report to the first floor l° Not long after beginning work on the second floor, O'Connell came up and told Finney that she "was supposed to be setting up meds." When Finney responded that Nurse Jeske was doing this work, O'Connell replied, "She has other things to do, and if you don't pass out those meds you are terminated." Finney thereupon stated that she would talk to Thayer O'Connell walked away. Finney at this point went up to Nurse Jeske and said, "Did you hear that?" Jeske replied "Yes, I did hear that. I am setting up meds." Finney thereupon telephoned the office and received permission from the office girl to see Thayer Finney testified that she went to Thayer's office and that O'Connell "brushed past me coming out of that office " As will be indicated, shortly thereafter Kippels also came to the office to see Thayer. However, what transpired was summed up in the credited testimony of Finney as follows: Well, I walked in, I said, "Mrs O'Connell says I am terminated if I don't pass the meds " He said, "That's right." I said, "Well, she is a week late. I told her that I wasn't passing meds and haven't passed meds since Monday." And I said, "I gave her the reasons. I told her about the thefts of the liquor and the wine," and I told him about the meds missing, and he says, "Lots of things are going on" . . . yes. He said, "We gave you a dime " The above incident is set forth in accordance with Kippels' testimony Without testifying in as much detail, Trana conceded that the incident occurred substantially as related by Kippels i° This was in accordance with Respondent's practice of rotating the nurses aides from one floor to another 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raise to pass meds." I said, "This is news to me, is the first of my knowledge, the only raise I got was when I would come down here and ask for a raise, and would tell you about different aides that were making more than I was making with less seniority and weren't doing as much." ... Oh, and I told him Mrs. Schlinger had said something we could be handled in a civil suit. He said, "Mrs. O'Connell's license covers you." I said, "Well, I have a manager operator's license and my li- cense doesn't cover a nonlicensed operator." And so we talked on and he proceeded to bring out some manual that he has for his other place ... and was giving me a wage scaleout of that, which I wasn't interested in be- cause. . . well, about that time Mrs. Kippels came into the room, and she told him that she understood, she told him she had been fired because she didn't pass the meds, Mrs. O'Connell had told her, and he said that is right. And I believe he was telling us about the rate of pay from Capitol View and we were making more according to that scale. Shortly after that Mr. Trana came in and Mr. Thayer was talking about out of that manual, Mr. Trana said, "Louie," and tried to shush him up, and then he said, "We have an appointment at 5 o'clock." And so he got up and came out. Q. (By Mr. Jahn) Is that how the meeting ended? A. Yes. TRIAL EXAMINER: I would like to ask one question and that is this: When you went into Mr. Thayer's office and you talked with him in there as you have testified, did he indicate in any way at that time that if you changed your mind you would go out and pass the meds, that you still would be retained? THE WITNESS: No, but I did say to him, I said, "It is as simple as this, Mr. Thayer. You sign where I am not liable, if I would make mistake in passing these meds and I will go right back out there and pass them." TRIAL EXAMINER: Then what did he say? THE WITNESS: That is when he said that "You are covered by O'Connell." TRIAL EXAMINER: Well, during the entire conversa- tion did either he say that "you are finished" or did you say "I quit" or was this something that just happened as you say the meeting ended and you never came back? THE WITNESS: When I walked in I told him Mrs. 0'- Connell had terminated me because I am not passing the meds, and he said, "That's right." TRIAL EXAMINER: All right. Meanwhile, after Finney had refused to pass medications and while she was in Thayer's office, O'Connell came up to the third floor and told Kippels to go to the first floor and pass the medications. When Kippels responded that Finney and Nurse Jeske were on the first floor, O'Connell stated, "Mrs. Finney refused to do the medications and she was terminated immediately, and if you don't go to the first floor and pass medications you are also terminated immediately." Without saying anything further, Kippels went to the first floor and told Nurse Jeske that O'Connell had told her to come down and pass meds, but that if she did not she was terminated. Jeske thereupon related how O'Connell had terminated Fin- ney and that Finney was in Thayer's office. When Kippels then stated that she was not going to pass the meds, Jeske stated, "Well, I don't blame you, I am here to do the meds, but they wanted me to go out on the floor and supervise." At this point Kippels left and went to Thayer's office. It is undis- puted that Trana entered at about the same time. With Fin- ney still present, the discussion then continued much in the manner related in Finney's testimony, as set forth above.15 Kippels credibly testified that at the end of the meeting when Trana reminded Thayer that they had a 5 o'clock appoint- ment, she said, "Well, come on, Lola, we are fired let's go." There was no response to this remark and they left the office. Kippels went to the third floor and told a nurse (Mrs. Rich- ardson) that she had been fired. Although Richardson asked her to stay and work, Kippels went to the lounge where she telephoned Union Representative Kokaisal and advised that she and Finney had been discharged. Kokaisal and Shirts promptly came to the home. Finney, upon leaving the office, went to the first floor and picked up some dinner trays from sick patients. She was notified when the union representatives appeared. After some discussion among themselves, they all left the premises. E. Events After the Terminations On the day after Kippels and Finney were terminated, March 24, 1970, Thayer wrote to each of these employees as follows: Dear Mrs. Kippels, [and Mrs. Finney] Mrs. Moe conducted a class for Nurses Aides instructing them in the passing of medications, and the administra- tion agreed with the Supervisors to give these Aides a 100 an hour raise as compensation for the added respon- sibility of passing medications. The following employees were included in this group on September 1, 1969: Judy Dahl, Lola Finney, Lorraine Kippels, Robert Morse, Judith Schlinger, Charlien Mack, and Evelyn Reiter. On March 23, 1970, you refused orders both from the Director of Nurses and the Administrator of this home to pass medications. You also walked out in the middle of an assigned shift of duty. In view of these circumstances, you are officially notified that your employment with the Lexington Nursing Home is terminated. Your final paycheck is enclosed. As part of its personnel records, Respondent maintains the employment applications of the employees in its files. These forms are actually more than applications for employment, for they also include spaces for such data as "Periodic evalua- tion of employee," "Employment Record,," "Time away from Job" and "Termination of Employment," the latter including space for "Date of Termination" and "Basis of Termination." It is undisputed that Mrs. O'Connell entered in handwriting the following notation in the space provided for "Basis for Termination" on Finney's application: Refused to pass medications. Had been especially trained for this specific work. Said on 3-19-70 she had never wanted to pass meds, but was made to. This is untrue and she had never once indicated by word or action she didn't want to do it. Also evidence points to fact she may be one of prime agitators trying to get Union in. (3-26-70) Similarly, O'Connell made the following entry in the same space on Kippel's application: Refused to pass medications. She had received an in- crease in salary for express purpose, after being trained, to pass medications. (Evidence indicates she may be one of prime agitators for getting Union.) 3-26-70 " As noted in Finney's testimony, Thayer discussed the rates at Capitol View and referred to a "manual." As clarified in the testimony of Kippels and Thayer, it is undisputed that during the conversation Thayer produced a copy of the Capitol View collective- bargaining agreement and referred to it when asserting that he was paying the nurses aides a wage rate that was "over the scale," as therein provided. LEXINGTON CONVALESCENT HOME Finally, the General Counsel introduced evidence concern- ing a telephone call which Mrs John Schmaus, a neighbor of Mrs. Kippels, had with Mrs O'Connell on about April 28, 1970 Mrs Schmaus testified she made the call on behalf of Mrs Kippels because Kippels was worried about receiving an unfavorable character reference. Thus, according to the un- denied testimony of Mrs Schmaus, she at this time called O'Connell at the nursing home and asked for a character appraisal of Kippels After some conversation in which 0'- Connell described Kippels as a "real good nurses aide," Schmaus finally asked, "If you had it to do over again, would you re-hire Mrs. Kippels?" O'Connell replied, "No, I would not, because at the time I didn't know she was working for the union." F Additional Facts, Conclusions as to the Discharges Preliminarily , it should be stated that I find no merit in Respondent's contention that Finney and Kippels voluntarily separated themselves from Respondent 's employ, and that it thereby is absolved from any liability under the Act. Suffice it to say that from the testimony I have credited I have heretofore found that these employees were told by Respond- ent representatives that they were terminated upon their refusal to pass medications . Moreover, in his letter of March 24 to each of these employees, Thayer specifically stated, inter alia, "you are officially notified that your employment with the Lexington Nursing Home is terminated " In any event, the circumstances of the employees' leaving having been previously noted , I turn now to the merits of the case. Aside from General Counsel 's contention that Respondent deliberately "created the incident" which led to the termina- tions, a matter upon which I will comment on later, the record leaves no doubt that the passing of medications con- stituted a regular part of the duties of the nurses aides who were qualified to perform this work . It is therefore self evident that under normal circumstances Respondent would have every justification to discharge any qualified nurses aide, in- cluding Finney and Kippels, who would fail or refuse to perform their duties in this regard . Upon the entire record, however, and notwithstanding that a valid reason may have existed for the termination of these employees , I am satisfied and find that a motive for Respondent 's discharge of these employees was based upon anti-union considerations 16 In- deed, in so finding, I principally rely upon the equally self- evident fact that a reason for the termination of Finney and Kippels, as reflected in Respondent 's own personnel records of these employees , was because Respondent knew or sus- pected each of them of being one of the "prime agitators" for "trying to get the union in " So damaging is this to Respon- dent's case that it might well be characterized as that type of "direct evidence of a purpose to violate the statute [which] is rarely obtainable." See Hartsell Mills Co. v. N. L. R. B., 111 F.2d 291, 293 (C.A. 4), N.L.R.B. v. Southland Mfg. Co., 201 F.2d 244, 245-246 (C.A 4); N.L. R.B. v. Melrose Processing Co., 351 F. 2d 693, (CA. 8). In arriving at the findings and conclusions stated above, I have not overlooked O'Connell's testimony to the effect that she entered the first basis for the terminations on the same day as the terminations , but that the second basis (concerning the two employees being the prime agitators for getting the union in) was not entered until three days later , at which time some employees told her of Finney's and Kippel's union ac- " It is well settled that discharges of employees are violative of the Act if they are partly motivated by union activity, even though the discharges may have been based upon other reasons as well NL R B v Jamestown Sterling Corp, 211 F 2d 725 (C A 2), NL R B v West Side Carpet Clean- ing Co, 329 F 2d 758 (C A 6) 75 tivities. O'Connell did not impress me as a forthright witness and I do not credit this testimony Aside from my observation of her demeanor as she testified, her lack of forthrightness is demonstrated in the record itself. Thus, for example, on cross-examination O'Connell first testified that the time she learned about any union activity" was not until a day or two after Finney and Kippels were discharged When referred to her pretrial affidavit, however, she conceded that in fact she learned of the union activity on March 17, 1970, after a service at the home In also asserting that she did not learn that Kippels and Finney were active in the Union until after they were terminated, O'Connell testified that this was brought to her attention by some of the employees. When asked to name these employees, O'Connell stated, "I couldn't specifically state their names There were so many that came to me." Not only do I find it hard to believe O'Connell's testimony that she could not recall the names of any em- ployees who came to her, but her admission that many em- ployees came to her with such information is a further mani- festation that she had knowledge of or had reason to suspect that Finney and Kippels were active for the Union pnor to their being discharged.18 Returning to March 23, the day of the discharges, some further facts are here in order. As mentioned earlier, on the morning of this date Union Representatives Shirts and Kokaisal came to the home to pursue their organizational activities. While visiting with employees in the lower lounge, Trana entered and asked that they go with him to Thayer's office. They did so, at which time Thayer instructed them not to use the building for union activities." When Kokaisal proposed that they confine their activities to the coffee shop during nonworking hours, Thayer suggested that they con- tact his attorney and gave them his attorney's card. Accord- ing to the testimony of Kokaisal and Shirts, during the course of this conversation Thayer also stated that two of the Un- ion's best supporters were spending 40 hours a week talking union, that it was in the hands of his attorney, and that they might be fired before the election. Thayer denied that he threatened to fire anyone during this conversation, but said that he just told the union representatives that one of his employees (whom he did not then name) was spending "too much time with the union already." I credit the corroborated testimony of Kokaisal and Shirts that Thayer made the state- ment concerning which they testified It was also on the morning of March 23, according to Thayer, that Trana came to his office and advised him that Mrs. Kippels had refused to pass medications on the preced- ing Friday, March 21.20 Concerning his next step, Thayer testified, "I went to Mrs. O'Connell and we discussed the problem. I told her that the nurses were being paid extra to pass medications [and] must continue to do work assigned or that she should use her power to enforce my regulations." When asked if O'Connell made any response, Thayer tes- tified, "I don't think we had any other discussion. We just terminated it that way." One inconsistency between Re- spondent witnesses might here be noted. Thus, although " Or, as she put it, "when I first found out the union was trying to get in" 1° While there is no direct evidence of Company knowledge of the union activities of these employees, I reject Respondent's contention that it in fact did not have such knowledge Clearly, this is established by Respondent's own admission to this effect as it appears on the aforenoted applications of each of these employees Since I deem this a sufficient basis for this finding, I find it unnecessary to discuss other aspects of the evidence alluded to in the General Counsel's brief as a basis for inferring company knowledge Cf N L R B v Melrose Processing Co, supra Testimony of Thayer 30 It will be recalled that Kippels in fact so indicated to Trana at that time 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thayer testified that he went to O'Connell only about Kippels and that he only told O'Connell to "use her power to enforce my regulations," O'Connell testified that Thayer at this time spoke to her about both Kippels and Finney and at the same time gave her instructions to terminate them if they did not perform the duties in question. It may be further noted that assuming O'Connell's testimony to be correct, there is no indication as to the source of Thayer's information concern- ing Finney." While the foregoing inconsistencies are not in themselves determinative of the issue herein, I have pointed them out in some detail because they do have a bearing upon the believability of Respondent's entire defense in this case, including the credibility of its principal witnesses. Whether or not Respondent deliberately created the inci- dent which foreseeably would give it an excuse for the termi- nations, as General Counsel appears to contend, I am pur- suaded that neither Finney or Kippels would have been so precipitately discharged on March 23, 1970, absent their un- ion activities. O'Connell described these employees as having been "excellent aides." Thayer conceded that he regarded them as being his two best nurses aides. In view of the admit- ted shortage of regular nurses at Respondent's nursing home, it would seem highly unusual that Respondent would so abruptly terminate these experienced nurses aides for the reasons asserted by it, without giving the matter its more thorough consideration.22 As previously noted, Kippels ad- vised Mrs. Corey on March 15 that she would no longer pass medications, which she in fact never did thereafter, and on March 19 Finney and Kippels specifically advised O'Connell that from thenceforth they would not participate in this work. Since this condition thus prevailed for approximately one week before their termination, it is peculiar that Respondent would not bring the matter to a head, if indeed it regarded it as so eminently serious, until after the Union's request for recognition on March 17, and more especially, after the ap- pearance of the union representatives at Respondent's home on the morning of the day of the discharges. Further, it is significant that at least three other nurses aides (Robert Morse, John Schultz, and Charlene Mack) also declined to pass medications and were not reprimanded or penalized therefor, notwithstanding that they were qualified to perform this work and that they had also taken the training course previously referred to. Thus, Thayer conceded that Charlene Mack "did not choose to pass medications," and that Robert Morse "passed medications for a short time and then asked to be relieved." With respect to Schultz, it was Kippels' un- controverted testimony that he discontinued passing medica- tions because he let it be known that he did not wish to engage in this work any further. Finally, as further reflecting upon Respondent's motives herein, the record leaves no doubt of Respondent's animus toward the Union. That Respondent was hostile to the union- ization of its employees is amply demonstrated not only by the very statements reflected in the personnel records with respect to its reasons for the terminations of Kippels and Finney, as previously set forth, but additionally, as discussed elsewhere herein, by Dahl's interrogation of employees just prior to March 17, by O'Connell's manifestly unlawful inter- " Thus, Thayer testified that Trana came to him only about Kippels-and it was only Kippels who spoke to him on the preceding Friday about not passing medications any further. " On cross-examination , with reference to the termination discussion which he had with Kippels and Finney on March 23 , Thayer testified, .. and I did the same thing again this day, I tried to talk them [Kippels and Finney] into staying , and I did the same thing again this day, I tried to talk them into staying , you are getting paid more than the scale , we want you,,you are our best employees , it will be a loss to the home if you are not with us." I do not credit this testimony. rogation of two applicants on June 15, 1970, and by O'Con- nell's statement to Mrs. Schmaus to the effect that she would not have hired Kippels had she known that Kippels would lend support to a union in the future. Upon the entire record herein, and for the reasons stated above, I find and conclude that the discharges of Finney and Kippels were largely prompted by a purpose to discourage union membership and activity among the employees and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. G. The Refusal to Bargain On March 15, 1970, Union Representatives Kokaisal, Shirts and Jerry Richgels went to see Harry and George Peterson at the Capitol View Nursing Home. This nursing home, of which the Petersons are co-owners, at this time was party to a collective bargaining agreement with the Charging Union. The Petersons, together with Trana and Thayer, are also co-owners of the Respondent nursing home. On the occa- sion of this visit the union representatives stated that they had signed up a majority of the employees at the Respondent home and that they wished to have a card check for the purpose of obtaining recognition. Richgels suggested that the Minnesota State Labor Conciliator make the card check. The Petersons responded that such matters were left up to Thayer, since he was administrator of the Lexington home, and that it would be necessary to obtain any such agreement from him. On the following day, March 17, the same union represen- tatives called upon Thayer at the Lexington home. According to the credited and corroborated testimony of Kokaisal and Shirts, they at this time advised Thayer, inter alia, that a majority of the employees had signed union authorization cards and that the Union wished recognition as the bargain- ing agent. Richgels again suggested that the Minnesota Con- ciliator be utilized to make a card check. Thayer declined recognition, stating that he was already paying union scale and that the employees did not need a union. When the union representatives thereupon repeated their request, Thayer re- sponded that they would have to see his attorney. Upon Richgels' request for the name of his attorney, Thayer told Richgels to leave his card and that he would have his attorney contact the Union." The Union representatives thereupon departed and went to the Regional Office of the Board where they filed the representation petition in 18-RC-8255. The complaint alleges, the Respondent's answer admits, and I find the appropriate unit to consist of all employees of Respondent, including regularly scheduled part-time em- ployees, excluding office clerical employees, licensed practical nurses, registered nurses, the administrators and other super- visors and guards as defined in the Act.24 It is undisputed, and I find, that on March 17, 1970, there were 88 employees in the aforesaid unit and that at this time the Union had signed authorization cards from 47 of the said employees. These cards clearly authorized the Union to represent these em- _' Concerning this conversation, Thayer testified that it lasted but a few minutes. He said that Richgels merely informed him that they wanted to "sign up a union," whereupon he replied that they would have to see his lawyer. He said that Richgels then stated "I can't talk to you" and that the union representatives then departed. As indicated, I credit the corroborated testimony of Kokaisal and Shirts set forth above. " I reject Respondent's contention that the Section 8(a)(5) allegation must fall because the Union representatives did not spell out the appropriate unit at the time of their meeting with Thayer on March 17. Admittedly familiar with the contract between the Union and another area nursing home of which he was part owner, Thayer undoubtedly was familiar with the unit sought by the Union. LEXINGTON CONVALESCENT HOME ployees for the purposes of collective bargaining and Re- spondent does not challenge their authenticity or validity. Accordingly , I find that on March 17, 1970, the date of the Union's demand for recognition , the Union represented a majority of the employees in the appropriate collective bar- gaining unit. I have heretofore found that, subsequent to the demand for recognition and the filing of the election petition , Respondent engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act Particularly serious was its discriminatory termination of two key union adherents , such conduct long being recognized by the Board and the Courts as a classic method of undermining the employee 's free selection of a bargaining representative N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A . 5). Accordingly, I find that by refusing to bargain with the Union and thereafter engaging in a series of unfair labor practices which were calculated and tended to undermine the Union's majority status, the Respondent violated Section 8(a)(5) and ( 1) of the Act Further, I find that Respondent's conduct was of such a pervasive character as to require a bargaining order rather than a second election N.L.R.B. v. Gissel Packing Company, 395 U.S . 575, 615-616. H. The Objections to the Election In view of the recommended remedial order herein, it would appear unnecessary to rule on the objections to the election which have been consolidated for hearing with the instant unfair labor practice case. However, I find and merit to objection number three, which involves the discriminatory discharges of Mrs. Finney and Mrs Kippels . Objections numbered one and two having been abandoned, it is recom- mended that they be dismissed.25 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in connection with the operations of Respondent set forth in Section I, above, have a close , intimate and sub- stantial 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 THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3) and (5) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discriminatorily discharged Lola Finney and Lorraine Kippels I will therefore recom- mend that Respondent offer them immediate and full rein- statement to their former or substantially equivalent positions and make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them, by payment to them of a sum equal to that which they would normally have earned from the date of their discrimi- nation to the date of reinstatement, less net earnings during said period , if any. The backpay provided, herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Co., 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in a manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. " The petition was filed on March 17 , 1970, and the election was held on May 7, 1970 There were 29 votes cast for the Petitioner and 38 against 77 Having found that Respondent unlawfully refused to bar- gain with the Union on and after March 17, 1970, when the latter represented a majority of Respondent's employees in an appropriate unit and having found that Respondent engaged in a series of unfair labor practices prior to the election of May 7, 1970, I shall recommend the issuance of an order directing Respondent , upon request, to bargain with the Un- ion as exclusive representatives of all employees in the unit herein found appropriate. I shall also recommend that the petition filed in Case 18-RC-8255 be dismissed. Because of the nature and extent of the unfair labor practices engaged in by the Respondent , which evince an attitude of opposition to the purposes of the Act in general , I deem it necessary to recommend that Respondent cease and desist from in any other manner infringing upon the rights of employees guaran- teed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and conclu- sions, and upon the entire record in this case, I hereby make the following. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees and applicants for employment concerning their union sympathies and activi- ties, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Lola Finney and Lorraine Kippels be- cause they assisted and supported the Union, thereby dis- criminating in regard to their hire and tenure of employment, in order to discourage membership in and activity on behalf of the Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. All employees of Respondent , including regularly sche- duled part-time employees, excluding office clerical em- ployees, licensed practical nurses, registered nurses, the ad- ministrator and other supervisors and guards as defined in the Act, constitute an appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 6. By refusing to recognize and bargain with the Union as the duly designated collective bargaining representative of its employees , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER26 Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Lexington Convalescent & Nursing Home, Inc., its officers , agents, successors, and as- signs, shall: 26 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations, and Recommended Order herein shall, as provided by Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order and all objections thereto shall be deemed waived for all purposes 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Coercively interrogating employees and applicants for employment concerning their union sympathies and activi- ties. (b) Discouraging membership in the Union, or in any other labor organization, by discharging employees or otherwise discriminating in respect to their hire or tenure of employ- ment. (c) Refusing to bargain, upon request, with Retail Store Employees Union, Local 789, affiliated with Retail Clerks International Association, AFL-CIO, as the exclusive repre- sentative of the employees in the following appropriate unit: All employees of Respondent, including regularly sched- uled part-time employees, excluding office clerical em- ployees, licenses practical nurses, registered nurses, the administrator and other supervisors and guards as defined in the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Lola Finney and Lorraine Kippels immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them, in the manner set forth in the Section of this Decision entitled "The Remedy." (b) Notify the above-named employees, if presently serving in the Armed Forces of the United States, to their right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Upon request, bargain collectively with Retail Store Employees Union , Local 789, affiliated with Retail Clerks International Association , AFL-CIO, as the exclusive repre- sentative of all the employees in the above -described appro- priate unit, and embody in a signed agreement any under- standing reached. (d) Preserve and, upon request, make available to the Board or its agents, for examining and copying , all payroll records, social security payment records, timecards , person- nel records and reports, and all other records necessary to ascertain any backpay due under the terms of this Recom- mended Order. (e) Post at its plant in St. Paul, Minnesota, copies of the notice attached hereto and marked "Appendix."27 Copies of said notice, to be furnished by the Regional Director for Region 18, shall , after being duly signed by a representative of Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for Region 18, in writing, what steps Respondent has taken to comply herewith.2B IT IS FURTHER RECOMMENDED that the election con- ducted on May 7, 1970, be declared anullity and that the petition filed in Case 18-RC-8255 be dismissed. IT IS FURTHER RECOMMENDED that the Union's objec- tions to the election numbered 2 and 3 be dismissed. " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 19 in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith."