Pleasant View Rest Home

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laura E. Weber, d/b/a Weber Nursing Homes and d/b/a Pleasant View Rest Home and Local 512, Retail, Wholesale and Department Store Union, AFL-CIO. Case 7-CA-3977 December 3, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 29, 1971, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in a certain other alleged unfair labor practice, and recommended dismissal of those allegations of the complaint. Thereafter, the Respondent and General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel filed a brief in support of certain portions of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as' amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National. Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Laura E. Weber, d/b/a Weber Nursing Homes and d/b/a Pleasant View Rest Home, the Respondent, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified below. Substitute the following for paragraph 2(c) of the Trial Examiner's recommended Order: "(c.) Using said list, offer reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to three employees as of October 5, 1970, to a fourth employee as of October 10, 1970, to a fifth employee as of October 17, 1970, to a sixth employee as of October 30, 1970, and to the remaining employees to the extent vacancies have occurred in nurses aide positions after the strikers applied for reinstatement, provided that the reinstatements of October 10 and 30 shall be to positions on the second shift and that any person declining such a position, or any subsequent opening not on the first shift, because of the hours of work, - shall not lose her position on the list for subsequent openings." 1 We note an obvious typographical error in the Trial Examiner's Decision . In sec D,1. par. 3, the 6th sentence should read as follows: "But the mere fact "Mader urged them to return for the half hour between 2.30 and 3 p.m. is insufficient basis for finding that they were discharged if they failed to do so " In his Decision the Trial Examiner, although not listing Brenda Coy as a permanent replacement, apparently treated her as such because in his recommended remedy he did not indicate that a striker was entitled to her job from the inception of her employment, but only from October 18 when she was transferred to housekeeping from the position of nurses aide. The undisputed facts found by the Trial Examiner were that Coy applied for work as "housekeeper, laundry, kitchen" and shortly after reporting for work was transferred to that position. Other uncontradicted evidence shows that her mother, Memweather, who was in charge of the day shift, did not consider her suitable for the position of nurses aide due to her emotional feelings about conditions of work in that job. In these circumstances, the evidence does not establish that her employment as a nurses aide was other than temporary. We shall, accordingly, modify the Trial Examiner's recommended remedy to provide that an additional opening existed on October 5 rather than on October 18, to which a discnminatee is entitled with backpay. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Indianapolis, Indiana, on February 9, 10, and 18, 1971,1 pursuant to a charge filed the preceding October 5 and a complaint issued November 30, presents questions of discharge, reinstatement, and replacement arising out of a labor dispute which originated at the Pleasant View Nursing Home (hereafter sometimes referred to as "the Home") on October 2. Upon the entire record,2 including my observation of the witnesses, and after due considera- tion of the briefs filed by General Counsel and by Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, an individual proprietor, operates two nursing homes in Indianapolis with total gross annual 1 All other dates mentioned herein except where otherwise indicated, refer to the yeas 1970. 2 General Counsel's motion to correct certain errors in the transcript was unopposed and is herewith granted 194 NLRB No. 69 PLEASANT VIEW REST HOME 427 revenue in excess of $250,000, and annually receives goods and material valued in excess of $50,000 directly from outside the State. The answer admits, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events of October 2 1. The concerted activity and the discharges For some days prior to Friday, October 2, a number of the nurses aides employed on the day shift at the Home had resented the fact that they had recently been required to perform certain housekeeping duties in addition to their normal tasks as aides. On that morning, by prearrangement among themselves, the nurses aides, after punching in for work, went to the dining area, instead of going about their normal duties, and were sitting there when the head nurse, Martha Meriwether, arrived shortly after 6:30 a.m Meriwether inquired of them if they were on strike. There is some conflict in the testimony as to whether they answered in the affirmative or the negative, but the record is clear that they told Meriwether they were not going to work until they had an audience with Mr. C. O. Rader, the administrator in charge of the Home, about their housek- eeping complaint. Meriwether replied that Rader would not be in until about 9 a.m., that the dining area was needed for the operation of the Home, and that if they were not going to work they should check out and go home. At this point there is a sharp conflict in testimony, for most of the aides testified that Meriwether said, "you're fired," whereas Menwether, Wilkerson, and a night shift nurses aide who was nearby, all denied that Meriwether said anything of the sort. I find that Meriwether did use the quoted phrase. I am led to this finding by a number of factors-one of which, my observation of the demeanor of the witnesses, is probably sufficient. See N.L.R.B. v. Dinion Coil Co., 201 F.2d 484, 487-490 (C.A. 2, 1952); but cf. the dissenting opinions in Mark Twain Marine Industries, Inc., 185 NLRB No. 101, and Peoples Outfitting Co., 184 NLRB No. 47. In addition, I note that Wilkerson was a completely unreliable witness as she was prepared to brand as "false" testimony that the aides even mentioned they wanted to see Rader, although Meriwether herself testified to that effect. Jacobs, the night aide, was not directly party to the conversation, was not close to the table where the other girls were sitting, if indeed she was inside the room at all, and could well have missed hearing all that Meriwether said as, according to Jacobs, Meriwether was facing the girls and had her back to Jacobs. Meriwether admitted saying immediately after that "her big 3 The group in the dining area included 8 of the 10 women named in the original complaint and 1, Wilkerson, whose name was added by amendment at the hearing. Wilkerson had gone about her regular work upon arriving that morning, but joined the others in the dining area upon the insistent urging of some of the group. Absent from the group, but included in the complaint, were Ethel Edwards and Ethel Ross. The former was not scheduled to work October 2, and Ross was not scheduled October 2,3,or4 mouth" had caused her to be without help that morning, an expression which makes sense if she had told the girls they were fired, but does not seem appropriate otherwise as their refusal to work the first part of the day was not due to her "big mouth." Also Meriwether called Tabler, one of the nurses aides then on vacation, asked if Tabler was with the girls or "wanted to stay," and suggested that the aides who had left would have trouble getting jobs. Further, the treatment of Edwards, described infra, is more consistent with the concept that Meriwether told the other aides they were discharged than that she did not. Finally, to come full circle, the conduct of the aides in question is consistent with their understanding that they were told they were discharged and, as stated at the outset, I find them credible and credit their unanimous testimony that Meriwether so told them. The aides in question thereupon punched out and went to the home of one of their number, Lucy Sullivan, to discuss what to do next. Meanwhile Meriwether called Rader to advise him of what had occurred. She also told him at that time that the aides wished to speak to him about the housekeeping duties .4 Rader told her to try to get the night aides to stay on, to locate people on leave, and to arrange for help to come from another nursing home operated by Respondent. Meriwether was able to piece together enough help from these sources to service the patients. Among the people she telephoned was Ethel Edwards, an aide not scheduled to work that day. Meriwether asked, but did not order, Edwards to come in, telling her that the other aides walked out. Edwards declined, stating that she supported the other aides. Meriwether did not reach Ethel Ross, who was not scheduled to work until the following Monday. 2. The aides return to the Home, receive their paychecks, engage in picketing, and loin the Union The aides returned to the Home shortly before 9 that morning, having learned that Rader had arrived. As they entered the Home, Rader came to meet them, telling them in a rather excited fashion to get out. He testified that he told them at that time that they were not discharged, but if he indeed said anything to that effect his words were lost in the confusion and he did not succeed in communicating any rescission of the discharges to the aides. Although Rader knew that the aides wanted to discuss their cleaning grievance with him, he made no effort to do so at that time or to suggest any time and place for doing so. The aides told him that as they had been fired, they wanted their paychecks, and Rader told them the checks would be prepared. The aides then left the Home and returned to Sullivan's. The group at the Home did not yet include Ethel Edwards (Wilkerson's testimony to the contrary is rejected),5 but Rader promptly instructed his secretary to prepare final paychecks for all the aides here involved, including Wilkerson and Edwards (but not Ross). 4 Rader denied that Menwether so advised him. I credit her testimony that she told him, but the matter is of no great moment, and I attribute Rader's testimony to a faulty memory rather than to deliberate falsehood. 5 Edwards' testimony, confirmed by other aides , is that she did not meet the group until they returned to Sullivan's after seeing Rader Wilkerson testified that Edwards was at Sullivan's before they went to the Home. I have already noted one error in Wilkerson's testimony, and I also find that her testimony in other respects is unworthy of belief. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The aides, this time accompanied by Edwards, went to the office of the State Labor Board, where their complaints about conditions at the Home set in motion an inquiry by the State Board of Health. They then returned-to the Home where they commenced picketing with handmade signs. At about 11 a.m. Rader came to the gate and handed paychecks to the pickets, but apparently Sullivan, Edwards, and Beverly Mayes were temporarily absent from the group. Rader also handed, or attempted to hand, to each of the girls present the following written statement: To the day-shift Aides: This is to inform you that we assume since you requested your checks, that you are voluntarily quitting our employment. We want to make clear that you are not discharged. We are hiring replacements to perma- nately [sic ] replace you. Several of the aides threw the paper back at Rader, apparently indignant because in their view they were not "voluntarily quitting" but had been "fired." In the noise and confusion at the gate, augmented by the noise of passing trucks on the nearby highway, Rader's reading of the above statement was not fully audible. Mildred Wilkerson, who was present at the gate, did not receive a paycheck. Rader's secretary had heard from an aide on the night shift that Wilkerson's participation in the walkout had been the result of pressure from the other aides. Wilkerson, not having received a check, went to the office to inquire into her status. In a brief conversation with Rader, in which Rader assured her that her housekeeping duties would be minimal, she agreed to return to work the next morning.6 The other aides who had not received checks at the gate (Sullivan, Edwards, and Mayes) went to the office shortly after 11 a.m., as they had heard their checks were there. Each there received her check, and Sullivan also was handed the statement quoted above but declined to accept it. No such statement was offered to Edwards; the record is silent as to whether one was given Mayes. Edwards, as noted above, was not scheduled to work that day and, unlike the other aides, had not requested a paycheck, but Rader had instructed his secretary to include Edwards in the group for whom paychecks were prepared. The aides, except for Wilkerson, returned to the gate and resumed picketing. Paul Brokamp, an organizer for the Union, was passing by, observed the picketing, and inquired of the pickets as to its cause. In the ensuing conversation, all the pickets signed union cards authorizing the Union to represent them.? Brokamp went to a nearby telephone, called his office to send out regular picket signs, and also arranged to have Virgil Terry, president of the Union, come to the scene. Brokamp then returned to the pickets; it was now about 2:30 p.m. 6 Wilkerson's testimony as to the time of this episode is confused Rader placed it as about noon. The Company introduced an exhibit (Resp. Exh 11) which would place the episode as occunng after 2:30 p.m. The record as a whole leads me to the conclusion that the document was prepared by mistake and that the episode occurred at the time Rader stated. The parties in their briefs seem to agree that it occurred after 2:30, which, of course, is consistent with Exh . 11, but inconsistent with other evidence in the record, 3. The discharges are rescinded; Rader leaves the office and later hires "replacements" When Brokamp returned to the gate at 2:30, he observed Rader reading the following statement to the assembled pickets: In order to make it perfectly clear that you have not been discharged, we hereby invite you to return to your regular job at Pleasant View Rest Home. Due to the necessity of providing proper care for our patients, we will be forced to immediately seek a replacement for you if you do not return. After reading the statement, which all the aides heard, either directly from Rader or immediately thereafter from their fellow aides, Rader pointed out to the group that their scheduled shift did not end until 3 p.m., a half hour later. He stated that they could return to work, but that if they did not, replacements would be hired. Brokamp then introduced himself to Rader, stating that he represented the picketing aides and that he would discuss the matter with Rader in the office in a few minutes. Rader went back into the building and almost immedi- ately left by another exit to go downtown to keep an appointment on a matter unrelated to this litigation. Before leaving he instructed his secretary and Meriwether to get the names of potential permanent replacements for the aides. Brokamp waited at the gate for Terry, who arrived before 3 p.m., and the two promptly proceeded to the office, hoping to discuss matters with Rader before the "deadline." They learned, however, that Rader had left the building. The union men and the aides then resumed picketing for the rest of the day. Rader returned to his office in the late afternoon or early evening, and spent the next several hours on the telephone arranging for a number of people to work the next day. Details as to these "replacements" are described, infra. B. The Events of October 3, 4, and 5 On the morning of Saturday, October 3, all the aides here involved except Ross were scheduled to work, but only Wilkerson reported for duty. A number of the "replacements" hired by Rader the previous evening, with some additional help from employees at the other nursing home and from volunteer workers, provided the services necessary to operate the Home. That morning, about 1 hour after the day shift was scheduled to report, the union representatives came to the Home, found Rader, and told him that they wanted to discuss getting the aides back to work. Rader told them to talk to his lawyer. The union representatives made strenuous efforts on both Saturday and Sunday to communicate with counsel for the Home, but were unable to reach him. 11 On Sunday none of the aides in question reported for work (Ross was not scheduled), and the necessary services including the testimony that Wilkerson, who left at 3 p.m., spent a considerable amount of time after her interview with Rader just watching the picketing, and the evidence that Rader left the Home almost immediately after reading the 2:30 p.m. letter to the strikers . Whether the Wilkerson-Rader exchange occurred at noon or at 2:30 is not critical to the case 7 The Union does normally represent employees of nursing homes. PLEASANT VIEW REST HOME were provided by the same group that worked Saturday. During the afternoon, acting at the suggestion of the Union, a number of the absent aides telephoned Rader, advising him in each case that the caller was prepared to resume work on Monday . Rader replied in each case that the caller had been permanently replaced. On Monday morning all the aides in question , including Ross, appeared at the Home at the normal starting hour, ready to go to work. Rader ordered all of them, including Ross, to leave the Home, stating that they had all been permanently replaced. The aides thereupon resumed their picketing, joined now by Ross, who received her paycheck in the mail about 2 weeks later. C. The Replacements As noted above Rader arranged for replacements to work as nurses aides at the Home beginning Saturday, October 3. The evidence with respect to these employees is as follows: 1. Brenda Coy, Mrs. Meriwether's daughter, reported for work as a nurses aide on October 3 but was transferred to housekeeping on October 18. In her 2 weeks as a nurses aide, Coy worked 46-1/2 and 44 hours, respectively. In her application dated October 3, Coy listed as the employment she desired "housekeeper, laundry, kitchen" but not nurses aide. 2. Mary Harvey reported for work October 3 and quit the week of November 7. She operates her own nursing home in Connorsville, Indiana, but is a friend of Rader and was visiting his family when the events occurred . According to Rader's testimony, Mrs. Harvey, a registered nurse, "more or less was training people" and "was not a permanent employee." She was listed on the payroll as an "aide" and paid al the rate normally given nurses aides. 3. and 4. Dorothy and Debra Howard are Rader's niece and great-niece, respectively . They reported for work on October 3 and were still employed at the time of the hearing. Dorothy Howard, however, runs errands and works in the office "practically'every day" for "most of the afternoon." Sometime after Christmas the head nurse, a supervisor, told a nurses aide that the head nurse expected Dorothy Howard "would just be there until the strike was over." 5. Brenda Keith had been employed in the dietary section until the morning of October 3 when she was transferred to nurses aide. She was not replaced in her former job, and there is uncontradicted testimony that prior to her transfer there was an extra employee in the kitchen. Keith's hours as a nurses aide averaged 48 per week; the striking aides normally worked a 40-hour week. 6. Ann Root, who reported for work on the morning of October 3, is still employed as a nurses aide. Timecards in evidence for Root showed that she works approximately 32 hours per week. 7. Gloria Stierwalt began work as a nurses aide on the morning of October 3 and is still so employed. She had worked for the Home on September 27 as a replacement in the kitchen. 8. and 9. Carolyn Ward and Carolle Wicker both reported on the morning of October 3 and are still working as nurses aides. 10. Dorothy Reynolds spoke to Meriwether on the 429 telephone on October 3, agreed to report on October 5, did so (over an hour after the striking aides and Ross had been refused employment), and went on sick leave, apparently permanently, on October 24. Reynolds told Menwether that she (Reynolds) would come to work part time "until they could find somebody to replace me." During the first week of Reynolds' employment Rader told her that she "couldn't quit because he would have to hire somebody off the picket line to replace [her ]." In that same conversation Reynolds told Rader she would work "until [she] could be replaced." Reynolds in her first 2 weeks worked 47 and 44 hours, respectively, and then left during the third week because of illness. 11. Jessie James started work as a nurses aide on October 4 and was still so employed at the time of the hearing. She also worked at a local hospital, so her hours at the Home fluctuate somewhat but apparently average about 30 per week. When James agreed to return to the Home on October 4 (she had previously been employed there), she told Rader that she "would come in and work until everything was settled with the girls. " She repeated that to Rader on more than one occasion after she started work. 12. Charlotte Hogan arranged with Rader by telephone on Sunday morning, October 4, to report the next morning, and did so. She quit during the week ending October 17. The foregoing 12 persons are apparently those to whom Rader referred when on the morning of October 5 he told Ross and the other 9 aides who were attempting to return to work that they had been replaced by 12 employees. In addition, however, the record shows that on October 9 a nurses aide on the second shift (3 to 11 p.m.) quit and was replaced by a new hire, Nora Flagg, one week later. The record further discloses that on or about October 30 two high school girls, Brenda Overton and Debra Robinson, were hired at the Home in the nursing department, and performed tasks similar to those performed by the nurses aides. The combined weekly hours of these two girls normally ranged from 28 to 44; they received pay increases in January 1971 to the rates paid the striking aides, and during the last 3 weeks for which records were available (i.e., through January 1971) they worked a combined total of 44, 42, and 40 hours, respectively. However, as far as the record shows, they worked during the second shift. Respondent introduced evidence that at all times it has provided nursing care in excess of the mimmum required by the State Board of Health. Rader testified that, although in the space of 1 week Coy transferred to housekeeping, Hogan quit, and Reynolds went on indefinite sick leave, he was sufficiently staffed that he needed no extra help. On the other hand, Tabler, one of the nonstriking nurses aides, testified to a conversation late in October with Pearl Knapp, who is the head nurse and admittedly a supervisor, in which the latter stated that the Home was "shorthanded," that she had to work herself, and that she could not "hire anybody until after the strike is over" although "some days we have two or three don't show up." 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Concluding Findings 1. The status of the "strikers" up to the morning of October 5 Unraveling this somewhat tangled skein, we start with a protected concerted activity-the meeting in the dining area in which the aides said they wanted to discuss with Rader their complaints about their duties. Meriwether converted this into an unfair labor practice strike when she discharged the aides for their action. See Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 102 (C.A. 7, 1959), and cases there cited. Rader in effect ratified this discharge when he ordered that final paychecks be made for all the aides, including Edwards, although at the time he did, Edwards had not missed any work time, had not demanded her pay, and had merely indicated her support of the other aides in their expressed desire to meet with Rader . Also Rader made no effort whatsoever to discuss matters with the aides when they appeared at the Home for that purpose about 9 a.m. In fairness to Rader it must be added that he was confronted with an emergency, as he had to arrange for care of the patients in the Home. On the other hand the nurses aides enjoyed statutory protection, just as do employees of a public utility, notwithstanding that their resort to collective action exerts unusual pressure because of the need which the employer's customers have for uninterrupted service. In any event, by 11 a.m. Rader, apparently having obtained sound legal advice in the interim, took steps to rescind the discharge. He handed, or attempted to hand, a statement to each of the aides in question (with the possible exception of Edwards) which stated in part "you are not discharged." Unfortunately, a number of the aides rejected the slips in some anger because the opening sentence stated that "you are voluntarily quitting your employment " I find that at that point Respondent had taken reasonable steps to rescind the discharges . The aides at this point could have gone into the office in an effort to speak with Rader and air their complaints, but none of them did so. As already noted the aides had not planned to do any work that morning until they could meet with Rader, who normally arrived at work about 9 a.m. Theoretically, therefore, the unlawful discharge that morning deprived the aides, who were scheduled to work, of compensation from about 9 a.m. to about 11 a.m. The amount lost is necessarily highly speculative, as there is no way of knowing whether or when the aides would have started to work, but would appear at most to be 2 hours per person. I am inclined to regard that under all the circumstances of the case as de minimis. At 2:30 p.m. Rader read another message to the aides which unequivocally invited them to return to their jobs. The record is clear that all the aides here involved (except for Ross, who was not present on Friday, and Wilkerson, whose reinstatement had already been accomplished) were aware of this offer. General Counsel suggests that the 2:30 statement was in the form of an ultimatum because Rader said that they would be replaced if they did not return immediately . I find that Rader's statement, "we will be forced to immediately seek a replacement for you," did not a In the instant case the rescission of the discharge caused the employees to revert to the status of economic stokers, not unfair labor preclude the aides from claiming their old jobs the following morning. To be sure, Rader arranged for replacements to report the next morning, a step of necessary prudence in view of his obligation to the patients as he was uncertain whether the strikers would return. But the mere fact that Rader urged them to return for the half hour between 2:30 and 3 p.m. is sufficient basis for finding that they were discharged if they failed to do so.s It is, of course, highly unfortunate that Rader left the office without waiting to see Brokamp and Terry, who represented the aides, and who wanted to discuss the terms of their returning to work. The Union was not the statutory bargaining representative ; it represented at the time only 9 aides of the first shift, and the Home employed well over 20 aides. But Brokamp and Terry were authorized to speak for the strikers, and the whole episode might have been satisfactorily resolved had Rader given them a chance to do so. Indeed, the entire affair up to this point could have been avoided or averted if Meriwether had not told the girls they were fired, if Rader had met with them at 9 a.m ., or if he had waited for Brokamp and Terry . But Rader's failure to meet with the union people, howsoever unfortunate, was not an unfair labor practice. If the striking aides had reported for work on Saturday morning, and if Respondent had declined to reinstate them, a nice question would have been raised as to whether they had been replaced under the doctrine recently reiterated in H. & F. Binch Co., 188 NLRB No. 98, that replacement becomes effective when the employer concludes definite arrangements with the replacement. Rader testified that he would have reinstated the aides, and in any event they did not show up for work that morning. At a fairly early hour, but well after the start of the shift, union representatives saw Rader, but at that time the replacements were already at work. On Sunday several of the aides told Rader they would report for work Monday, and he replied that they had been replaced. Nevertheless they all appeared for work on Monday, at which time (except for Ross) they were in the status of strikers who had allegedly been replaced. We turn, therefore, to a consideration of the replacement picture on and after October 5. 2. The rights of the strikers on and after October 5 On the morning of October 5 the nine striking nurses aides (i.e., those who had been scheduled to work Saturday and Sunday but had not done so) reported for work in a group, accompanied by Ethel Ross, who had been on leave during the last 3 days and had not missed any work. When the group announced to Rader that they were reporting for work, he told all of them (including Ross) that "you've been replaced with twelve other girls." The aides, including Ross, went out to picket, and Ross received her paycheck in the mail some days later. Insofar as Ross is concerned, it is probable that Rader simply erred in including her with the striking employees. He had no basis for replacing her other than the belief that she had made common cause with the others. Perhaps if she practice stokers, as the discharge was, up to that point, the sole unfair labor practice PLEASANT VIEW REST HOME had asserted herself at the time and apprised him of all the facts, he would have permitted her to work. But on the record as made, Rader in effect discharged her, and Respondent cannot escape liability because Ross did not try to argue with Rader at the time. Just as an employer violates the Act for discharging an employee out of a mistaken belief that he has engaged in union activity, so Respondent violated the Act by discharging Ross because of its mistaken belief that she engaged in concerted activity. N.L.R.B. v. American Casting Service, Inc., 365 F.2d 168, 174 (C.A. 7, 1966); see also Atlas Linen and Industrial Supply, 134 NLRB 1230, 1232, adopting 130 NLRB 761. As to the remaining 9 nurses aides (or all 10, if I am in error as to Ross), their position as economic strikers applying for reinstatement entitled them to any jobs filled by temporary replacements and to any vacancies thereafter occurring. The Laidlaw Corporation, 171 NLRB No. 175, enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920. At the time the strikers reported for work on Monday, October 5,, Respondent allegedly had hired the 12 replacements discussed above. Of these, Rader admitted that Mary Harvey was not a permanent replacement, and James and Reynolds had made it clear that they would work only until the strike was settled. Subtracting these 3 from the 12 leaves 9 replacements for the 10 aides, but as already noted Ross was an immediate victim of discrimina- tion, and at this point in our discussion we are still left with 9 strikers. General Counsel argues that Keith should not be considered a permanent replacement as she was transferred from the dietary unit to replace a striker. But Keith's job in dietary was not filled, and Rader testified that the Home had need for only the four remaining employees in dietary. I therefore cannot count Keith as a temporary replacement. Ann Root and Dorothy Howard, however, did not work full shifts as nurses aides, and hence together can be considered as only a single replacement. This affords room for reinstating as of October 5 one more striker in addition to Ross. On October 9 an aide on the second shift quit, thereby creating a second vacancy which should have been offered to a striker.9 In the week ending October 17, Coy transferred to housekeeping and Hogan quit, thus creating two more vacancies. In short, as of the time of the hearing there were six permanent replacements employed on the first shift (Keith, Debra Howard, Stierwalt, Wicker, Ward, and the combination of Root-Dorothy Howard) leaving four vacancies on that shift, plus the vacancy created on the second shift. The failure to recall five of the aides (Ross and one other on October 5, another on the second shift after October 9, and two more a week later) violated the Act under the Laidlaw doctrine. It also, of course, reconverted the strike into an unfair labor practice strike. Respondent argues that it has been fully staffed at all times. In part this results from the hiring of a replacement on the second shift, by the hiring of the high school girls at the end of October, and by the continued employment of 9 It is, of course, conceivable that none of the strikers would accept a job on the second shift Should this prove to be the case, no monetary liability will result from the failure to offer that job to a striker. 10 This has later developed into a full-time job. 11 General Counsel urges that the refusal to reinstate the strikers was in part the result of Respondent's resentment over their having joined the Union, and was thus violative of Section 8(a)(3) as well as of 8(a)(1). I do 431 James despite her statement that she would work only until the strike was settled. Further, the adequacy of the staffing is open to some question in the light of Knapp 's comment to Tabler that the Home was shorthanded . In any event, granting that the Home is meeting the minimum standards of the State Board of Health, the fact remains that prior to the strike it had full time positions for the 10 aides in question, and under the analysis detailed above 5 of those 10 have been wrongfully denied reinstatement, as the overall needs of the Home have not been changed. Finally, a question arises as to the jobs filled by the high school girls after October 31. These were on the second shift, and, at least at first, amounted, in terms of combined hours, to less than one full-time job, although the hours later increased to equal a single full-time job. In terms of duties and of compensation, they were for all intents and purposes nurses aides . Moreover, in the light of Rader's avowed hostility to "hiring off the picket line" and of Knapp's recognition late in October that she was "shorthanded" it is a reasonable inference that Respon- dent's need for these two new jobs arose, at least in part, from the adjustments occasioned by employing inexperi- enced aides on the first shift. I therefore find that Respondent should have offered employment to one of the strikers for at least a half-time job on the second shift beginning October 30,10 and that its failure to do so further violated the Act.11 CONCLUSIONS OF LAW 1. By discharging a number of nurses aides on October 2 because they engaged in a protected concerted activity Respondent engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. Respondent effectively rescinded these unlawful discharges on October 2, but on October 5 committed the same unfair labor practice with respect to Ethel Ross because of its mistaken belief that she had engaged in a concerted activity. 3. Respondent by failing to offer reinstatement to strikers when vacancies arose after their unconditional request for reinstatement engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. I shall recommend that Respondent cease and desist from its unfair labor practices, that it offer reinstatement to Ethel Ross, with backpay from October 5, 1970,12 that it offer reinstatement to the nine striking aides to the extent that their jobs were not filled by permanent replacements or that other comparable positions became available, that it make the reinstated strikers whole for any losses incurred from the delay in reinstating them, and that it place the remaining strikers on a preferential hiring list. More specifically, as discussed above, in addition to Ross, one not draw the inference that the advent of the Union contributed to Respondent's action. In any event the remedy is the same , whether the violation was of both subsections or only of one. 12 Assuming arguendo that I am in error in finding a specific violation in Ross' case, she is at the worst relegated to a panty with the other strikers Of course, if Ross is not reinstated as of October 5, this creates a vacancy on that date for someone else. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striker should be reinstated with backpay from October 5, another on the second shift with backpay from October 10, two more with backpay from October 17, and a sixth with backpay from October 30, with the latter's backpay to be computed by using the combined earnings of Robinson and Overton as a measure. In addition any nurses aide vacancies occurring since the date of the hearing must be offered to the strikers, with backpay from the date of the vacancy. Also Respondent cannot continue employing James, who was only a temporary replacement, and Flagg, Overton, and Robinson, who were hired subsequent to the strikers' application for reinstatement, unless it has offered reinstatement to each of the strikers. The computation of backpay in a case of this nature is fraught with grave difficulties. Suppose, for example, that as of October 5 striker A should have been offered reinstatement and would have accepted it, but by the time of compliance A no longer desires the job and it goes to striker G, as B, C, D, E, and F are reinstated to other jobs. Equitable considerations would seem to require that A receive backpay up to the time she would have declined reinstatement, and that the backpay after that date should go to G. Problems of this nature are best left to compliance negotiations, and can -be the subject of further proceedings if not amicably resolved. To facilitate compliance, I shall recommend an order directing Respondent to reinstate Ross and to list the nine strikers in the order in which it would have offered them reinstatement, using any fair, equitable, and lawful method (such as seniority, for example) in compiling the list. Such a list should be furnished to the Regional Director for Region 25, to the Charging Party, and to each of the strikers. It will serve as the basis for offering reinstatement to the places already specified and to subsequent vacancies which may occur prior to the time of compliance with this decision, and, to the, extent any names remain on the list, they will constitute the preferential hiring list mentioned above. Finally, I should add that nothing herein is intended to preclude any other division of the total net backpay which may commend itself to the affected parties, such as, for example, an equal division among all, the persons named in the original complaint as victims of unlawful treatment. All sums due under this recommended Order shall be computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As previously noted I consider the time lost on October 2 because of the unlawful discharges speculative and de minimis. 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: 13 ORDER Respondent Laura E. Weber, doing business as Weber 13 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, and recommended Order herein shall, as provided in 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 Nursing Homes and as Pleasant View Rest Home, her agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to reinstate any employees because such employee has engaged with other employees in concerted activity for mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Prepare a list, in the manner prescribed in the section of the Trial Examiner's Decision entitled "The Remedy," of the 10 employees, to whom it refused employment on October 5, 1970, listing the employees (headed by Ethel Ross) in the rotation in which it would offer them reinstatement to positions as nurses aides at Pleasant View Rest Home. - (b) Serve copies of said list upon each of the 10 employees, the Regional Director for Region 25, and the Charging Party. (c) Using said list, offer reinstatement to their former jobs, without prejudice to their seniority or other-rights and privileges, to two employees as of October 5, 1970, to a third employee. as of October, 10, 1970, to a fourth and fifth employee as of October 17, 1970, to a sixth employee as of October 30, 1970, and to the remaining employees to the extent vacancies have occurred in nurses aide positions after the strikers applied for reinstatement, provided that the reinstatements of October 10 and 30 shall be to positions on the second shift and that any person declining such a position, or any subsequent opening not on the first shift, because of the hours, of work, shall not lose her position on the list for subsequent openings. (d) To the extent that any names remain on the list after compliance with the foregoing provisions, retain the list as the basis for offering reinstatement when subsequent vacancies occur. (e) Make whole the reinstated employees for losses sustained as a result of the delay in reinstating them, following the formulas prescribed in the section of the Trial Examiner's Decision entitled "The Remedy." (f) Notify each of the employees on the above-mentioned list, if presently serving in the Armed Forces of the United States of her right to full reinstatement or to preferential listing upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of the recommended Order. (h) Post at the Pleasant View Rest Home copies of the attached notice marked "Appendix." 14 Copies of said be deemed waived for all purposes. 14 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 PLEASANT VIEW REST HOME 433 notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director for Region 25, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.15 THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF, THE NATIONAL LABOR RELATIONS BOARD." 15 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read: "Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " nurses aides not hired as permanent replacements and any persons performing the work of nurses aides hired after October 5, 1970: Norma Kay Alte Beverly Mayes Bette A. Biggs Ethel Ross Ethel Edwards Lucy Sullivan Rose Hildebrand Gloria Tapp Sharon Kesler Nita Taylor To the extent that nurses aide positions are not now available for any of the above-named employees, WE WILL place them on a preferential hiring list for vacancies as they occur. WE WILL make whole the employees we reinstate for any losses they incurred as a result of their not having been reinstated when positions first became available which they could fill, including two positions on October 5, 1970, and four more positions later in that month. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse to reinstate any employee because that employee has gone on strike or has otherwise engaged with fellow employees in concerted activity for mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his right to join or assist a labor union or to engage in other concerted activity for mutual aid or protection. WE WILL reinstate to their positions as nurses aides the following employees to the extent that positions are now available for them, discharging if necessary any LAURA E. WEBER, D/B/A PLEASANT VIEW REST HOME (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.