Eldercare of Springfield, Inc.

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eldercare of Springfield , Inc. and National Union of Hospital and Nursing Home Employees, Local 1199 Massachusetts, a/w Retail, Wholesale and Department Store Union, AFL-CIO. Cases 1-CA-7658 and 1-CA-7824 May 30, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 23, 1972, Trial Examiner Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order.2 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 and hereby orders that Eldercare of Springfield, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 We deny the Respondent's request for an oral argument, inasmuch as the instant record, in our opinion, sufficiently reflects the facts and issues in this proceeding We correct an inadvertent typographical error in the Trial Examiners Decision by substituting "Joan Cadigan" for "John Cadigan," in the first paragraph of section B2 of that portion of the Decision entitled "Findings of Fact " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed in Case l-CA-765$ on May 22, 1971, by National Union of Hospital and Nursing Home Employees, Local 1199 Massachusetts, a/w Retail, Wholesale and Depart- ment Store Union, AFL-CIO, herein called the Union, the Regional Director for Region I of the National Labor Relations Board, herein called the Board, issued a complaint on July 28, 1971, against Eldercare of Spring- field, Inc., herein called the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. sec. 151, et seq.), herein called the Act. Thereafter, upon a separate charge filed by the Umon in Case I-CA-7824 on August 25, 1971, counsel for the General Counsel filed a motion to consolidate the two cases and amend the complaint dated September 16, 1971, which motion was granted by order of the Trial Examiner dated October 6, 1971. The amendments to the complaint allege further violations of Section 8(a)(1) and (3) of the Act. In its duly filed answer to the complaint and the amended complaint, the Respondent, while admitting certain allegations of the complaint, denied the commis- sion of any unfair labor practices. Pursuant to notice, the hearing in this case was held before me at Springfield, Massachusetts, on September 14 and November 3 and 4, 1971. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my personal observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Massachusetts corporation, is engaged in the operation of a proprietary rest home in the city of Springfield, Massachusetts. During the year immediately preceding the issuance of the complaint herein, a repre- sentative period, the Respondent in the course and conduct of its business, caused large quantities of medical supplies and equipment used by it in operating its rest home to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts. During the same period of time, Respondent received gross revenues in excess of $100,000 and received goods valued in excess of $50,000 from points outside the Commonwealth of Massachusetts. It is admitted, and I find, that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues F, The complaint, as amended, alleges that the Respondent discharged two employees discriminatorily for engaging in union activity in violation of Section 8(a)(3) and (1) of the Act. It further alleges that Respondent engaged in threats 197 NLRB No. 36 ELDERCARE OF SPRINGFIELD, INC. 215 of discharge and created the impression of unlawful surveillance. The Respondent's answer denies all unlawful activity and, as to the discharges, alleges that the two employees were discharged for cause. Thus the issues are: 1. Did the Respondent, in violation of Section 8(a)(3) and (1) of the Act, discriminatorily discharge Alma L. Sacharcyzk and Alice Moriarty? 2. Did Respondent unlawfully threaten employees with discharge for engaging in concerted or union activities and create the impression of surveillance of the employees' union or concerted activities in violation of Section 8(a)(1) of the Act? B. The Facts 1. Alma Sacharcyzk As noted above, the Respondent is engaged in the operation of a nursing home, in the city of Springfield, Massachusetts. Alma L. Sacharcyzk was employed by the Respondent in June 1970 as a nurses aide. Sacharcyzk was discharged on May 14, 1971. On May 10, 1971, Sacharcyzk signed a paper given to her by Janet Axton, a cook in the kitchen of the home. This paper contained the signatures of the employees of the home who mamfested their interest in becoming unionized. On that day, Sacharcyzk and Axton took the paper that the employees had signed to a representative of the Union. On May 11, they received cards, took them back to the nursing home, and had the employees sign cards until they ran out of them. Sacharcyzk procured four or five signed cards, then went back with Axton to the union hall on May 12, received some more cards which they brought back and had signed. Cards were then turned over to the union representative. This was the extent of Sacharcyzk's union activity up to May 13, the day she was discharged. On that day, in the morning, Sacharcyzk gave her unlisted telephone number to Agnes Mendrala, a nurses aide. She told Mendrala that the latter was to call her if there were any trouble concerning union activity in the home and if she had any questions concerning union activity. She further told Mendrala that if Mendrala had any difficulty, Sacharcyzk would contact John Foley, the union representative.' Later that morning, Mendrala and Doris Prophett, another employee, spoke to Marv Arslanian, assistant to the director of nursing of the home, and told her that they had signed union cards. They further nervously told Arslaman that they had received the cards from Janet Axton and asked Arslanian whether they would lose their jobs. According to Arslanian, she reassured them that they would not lose theirjobs but that they had done wrong and should have reported the matter to Jane Cady, the director of nurses. Immediately after this conversation, Arslanian informed Cady of the matter told to her by Mendrala and Prophett. Upon being informed of this matter, Cady called Douglas Madsen, director and administrator of the nursing home, on the telephone and related the information to him. Madsen thereupon communicated the information to Cerveney, the president of the corporation which owned the home? Later that day, shortly after lunch, Mendrala and Prophett again approached Arslanian. This time Mendrala showed Arslanian a slip of paper with a telephone number written thereon. Mendrala explained that it was Sachar- cyzk's unlisted home telephone number. According to Arslanian, Mendrala then told Arslanian that Sacharcyzk told them that if there were any problem or trouble in the home, that they were to tell nobody, but to call Sacharcyzk. In her rebuttal testimony, Mendrala emphatically insisted that the purpose of the telephone number was for union purposes only and that she was to call Sacharcyzk only if there were union trouble or problems in the home and not problems generally. However, in her testimony, Mendrala did not directly deny what Arslanian had testified to, namely, that Mendrala told Arslanian that Mendrala was to call Sacharcyzk in the event that there was any trouble in the home. Accordingly, I find and conclude that Mendrala did not, in all probability, fully explain to Arslanian the exact circumstances under which the telephone number was given to her.3 When Cady received this information regarding the telephone number 'from Arslaman, she again called Madsen who stated that he would come down to the home. The testimony of Madsen and Cady with regard to what followed and the exact nature of the telephone calls is rather confusing. The testimony of each was in conflict with the other in a number of respects. Thus Madsen stated that he did not know that Alma Sacharcyzk was passing out union authorization cards. However, Cady on cross- examination stated that she told Madsen that Sacharcyzk was passing out union cards. Furthermore, Madsen stated that he told Cady to discharge Sacharcyzk and that Cerveney, the president of the corporation operating the home, did not have anything to do with the discharge. However, Cady testified that Madsen told her that Cerveney had made the decision to discharge Sacharcyzk. Furthermore, Madsen testified that he did not know what the problem was when he went to the home that afternoon whereas Cady stated that she had told him what had happened over the telephone earlier that day. In any event, when Sacharcyzk reported to work that afternoon, May 14, 1971, she was discharged by Cady. Sacharcyzk testified credibly that when she reported for work that afternoon she overheard a conversation at the nurses' station between Cady and Joan Cadigan, at that time a clerical employee and who is now the administrator of the home. According to Sacharcyzk, Cadigan told Cady, referring evidently to a paper which Cadigan had in her hand, that "It doesn't show that she's a troublemaker. It doesn't show that she's not a troublemaker. It does not show that she is an instigator or a good egg or a bad egg." It was shortly thereafter that Sacharcyzk was summoned to Cady's office where Cady told her "When there is a complaint that comes in this office I am the one to take 1 From credited portions of the testimony of Sacharcyzk and Mendrala Sacharcyzk's discharge, it is unnecessary to determine exactly what was said 2 From credited portions of the testimony of Arslanian, Cady, and by Mendrala to Arslanian and by Arslanian to Cady regarding this Madsen particular question of fact. 3 By reason of the disposition hereinafter made of the issue of 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD care of it." Sacharcyzk told Cady that she knew this and Cady went on "Well, I've had phone calls. You have girls from one end of the building to the other with complaints." When Sacharcyzk denied this, Cady called her a liar. Sacharcyzk said she was not a liar and Cady said, "You've given all those girls your telephone number." Sacharcyzk said that she had not. Then Cady said "Mr. Madsen and Mr. Cerveney want me to let you go. You are an instigator." Very little else was said. Sacharcyzk refused to punch her card and Cady said that she would. Sacharcyzk was never given any other reason' for her discharge. It should be noted that during her employment with the Respondent, Sacharcyzk had been reprimanded only once. This occasion was brought about by an incident which involved a couple of local policemen who, the testimony shows, visited the home at night when Sacharcyzk was on duty, conversed with Sacharcyzk, had coffee with Sachar- cyzk. It was thought by management that these visits were bad for the morale of the home and perhaps disturbed the patients. For this incident, Sacharcyzk was suspended for 2 days. However, according to Madsen's testimony, this matter was over and done with and was not part of the consideration for which Sacharcyzk was' discharged. Further light is shed on the reasons for Sacharcyzk's discharge by the testimony of other employees of the Respondent. Thus, Rita Lamora testified that on Friday, May 14, between 9 and 10 in the morning, Cady entered the kitchen where Lamora was head cook and asked to talk to Lamora. Present were Cady and Lamora only. Cady asked Lamora if she knew that the girls had started a union. Lamora answered that she was unaware of this fact and did not know anything about it. Cady then reminded Lamora that the latter was supposed to report anything if she knew it. When Lamora again denied knowledge, Cady said that if any of the cards were signed in the nursing home it was illegal. Lamora then asked Cady if the latter had called Cerveney's office. Cady answered that she had called and that she was waiting for a reply from Mr. Cerveney or Mr. Madsen. Cady said that she had found out about the unionization, that Debbie Williams, another employee, had told Mary Arslanian and Mary Arslaman had told Cady. Later that day, Lamora was summoned to the front office where Madsen was present alone. They engaged in a conversation. Again Madsen asked if Lamora knew anything about the Union and when she answered in the negative and replied that she did not know anything about it until Mrs. Cady had told her, Madsen asked her if the girls had ever talked about it in front of her. Again Lamora replied in the negative. Then Madsen stated, "Well, we have to find out who started it." Then Cady evidently entered and Lamora heard Madsen and Cady talk about the matter in a low voice. She could not hear everything. However, she asked Cady whether Sacharcyzk was sick or something since she heard the name Alma mentioned. Cady answered that Sacharcyzk was not ill. Then Lamora asked Cady whether Sacharcyzk was the one who started 4 I credit the foregoing testimony of Lamora as against Madsen's denial that Lamora was in the room at all at the times to which she testified Lamora testified in a straightforward manner and I was much impressed with her apparent sincerity . On the other hand, I found Madsen's testimony to be in conflict with that of Cady in so many respects, that I am reluctant the Union. Cady said that Sacharcyzk was the one who started the Union. Then Cady said to Madsen "we should have let her go then (referring to the police incident) instead of taking her back." Madsen answered, "Why don't you let her go and see what is going to happen?" Cady stated to Madsen "She is an instigator." Then Lamora asked if she could go and Madsen replied in the affirmative. Lamora left.4 In connection with the foregoing testimony of Lamora, it should be noted that on cross-examination, Cady admitted that she knew that Sacharcyzk was passing out union cards. She further admitted that she gave this information to Cerveney and Madsen. One other incident would seem to shed some light on the basis for the discharge of Sacharcyzk . Judith Shoro was formerly a part-time nurses aide at the Respondent 's home. Shortly after Sacharcyzk's discharge , Shoro came to work and found that her name was not on the bulletin board for work assignment. She nevertheless went to work upon advice of John Foley, the union representative. Thereafter, she went in the following Sunday for part-time work and worked again. However, Shoro was scheduled to work the following Thursday but, when she went to punch her timecard, her timecard was not in the rack. Shoro then called Cady at home, but there was no answer. Thereupon, Shoro called Cerveney . She asked him why she was not working and ^erveney explained he was laying off all part- time help. However, during that conversation when she asked him why she was put off schedule, he said , "Well, I let one girl go from all the trouble we were having up there." Then he said "not referring to the trouble we had before." No names were mentioned during this conversa- tion, but it should be noted that Sacharcyzk was the only one who had been discharged during that period of time. Furthermore, evidently the reference to former trouble that they had was a reference to the incident involving Sacharcyzk and the police. It should further be noted that during Sacharcyzk's exit interview, and just prior to that time, Sacharcyzk was not given the opportunity to explain what she had done, nor was any thorough investigation made of the reasons for Sacharcyzk's giving her name to the other employee. 2. Alice Moriarty On April 7, 1971, Moriarty was hired as a dining room and kitchen helper. In May, Janet Axton gave Moriarty a union card which she signed and gave back to Axton. Moriarty also attended union meetings. In July, after the union election, Moriarty was very excited and went to the kitchen and spoke to Stella Shelley, her supervisor. Moriarty said to Shelley "We made it." Moriarty attended union meetings in July and was picked as one of the seven employees on the union negotiating committee in August. One day, in either the end of July or the beginning of August, Shelley told Moriarty to go to the home office. When Moriarty arrived at the office, she spoke to John to credit any of it. In crediting Lamora, I have taken into consideration that Lamora was discharged for inefficiency several weeks after the discharge of Sacharcyzk. It is therefore quite possible that Lamora was not a completely objective witness However, as between Madsen , Cady, and Lamora, I find and conclude that Lamora was the more reliable witness. ELDERCARE OF SPRINGFIELD, INC. Cadigan who, at that time, had become the administrator of the home. Cadigan asked Moriarty to enroll in the Blue Cross and Blue Shield Hospitalization Plan, which was a company sponsored plan. Moriarty informed Cadigan that she did not want Respondent's Blue Cross-Blue Shield plan and preferred to wait for a plan from the insurance company which was sponsored by the Union. According to Moriarty, Cadigan told her that she was foolish, and that it was going to take a long time before any insurance plan by the Union would go into effect since Respondent had no intention of signing a union contract. On Monday night, August 16, Moriarty attended a union meeting. At that meeting, Moriarty spoke concerning the working conditions at the home. Moriarty was on the night shift, and she referred to the night shift as being overworked as compared to the day shift. She also stated that she had been told that the Respondent would not pay time and one-half for work performed over 40 hours a week. She also made some remarks about going on strike because Cerveney had no intention of signing a contract.5 On Tuesday morning, August 17, about 6:30 a.m., a number of employees were having coffee in the home dining room. About that time, Stella Shelley, the supervisor of the kitchen and head cook, entered the room and asked Prophett and Mendrala if they had attended the union meeting held the evening before. In the presence of Mendrala, Prophett, and employees Shea and Marsh, Shelley asked if they had heard what Moriarty had said. Shelley then stated that she was going to call Moriarty and give her a good long vacation if Moriarty was so tired from her work. All of the aforementioned employees who testified said that Shelley was very upset and angry when she said this .6 Either that morning or the following morning, August 18, about 8:30 a.m., Shelley called Moriarty on the telephone and told the latter that, because Moriarty was complaining about working too hard and being overtired, she should not bother to come to work any more. As a result, Moriarty did not go back to work at the home. However, on Thursday about noon, she went to the home to pick up her paycheck. At that time, she asked Cadigan why she was discharged. Cadigan answered that she did not know, that Shelley had not talked to her about it. Moriarty then proceeded to the dining room, where there was a patient picnic in progress. She waited for Shelley to appear and when she did so, Moriarty followed Shelley into the kitchen and asked the latter why Moriarty had been fired. Shelley answered that after every union meeting there was trouble. According to Moriarty, Shelley said, "I believe you went too far and overboard Monday at the last union meeting. I won't stand for it, Alice, you are through." 5 From the credited testimony of Moriarty. Although Moriarty was the only one who testified that she spoke at the union meeting about matters other than working too hard, and about the night shift being imposed upon, the other employees who testified as to that meeting were not directly asked whether Moriarty had made remarks of another nature Although I found Moriarty to be perhaps a bit difficult in her attitude , I found nothing in her demeanor on the stand to cause me to believe that she was untruthful in the matters regarding the events of the union meeting. 6 All of the foregoing from the credited testimony of Moriarty , Prophett, Mendrala, Shea, and Marsh Although Shelley testified that she did not see or speak to any of these people on Tuesday morning, August 17, and did not 217 In connection with Moriarty's discharge, Josephine W. Bell, the second cook in the kitchen of the nursing home under the direction of Stella Shelley, testified that on Monday, August 16, three girls worked on the second shift including Alice Moriarty. During their work period, Moriarty made continents about the night shift doing all the work. Moriarty stated that the day girls did not do any work, that the night shift did all the work, and that Moriarty was sick of doing it and that she was not going to put up with it any more. With that, Bell telephoned Shelley, who had gone home and told Shelley about Moriarty's complaint. After Bell told Shelley about the incident, Shelley said, according to Bell, "Well, when I come in tomorrow morning, I'll take care of everything." According to Shelley, it was at this point that she made up her mind to discharge Moriarty and, if Shelley's testimony is accepted, she therefore made up her mind before the union meeting of Monday, August 16, took place. However, there is a discrepancy in the dates and as to the sequence of events. Shelley testified that she called Moriarty on Tuesday and discharged her on that day. However, Moriarty testified that it was on Wednesday morning that Shelley discharged her. If this is so, then Shelley discharged Moriarty after she had heard about the union meeting which places the statement that she made up her mind to discharge Shelley on Monday in some doubt. In further connection with the discharge, Janet Axton testified that at 1:30 p.m. on Thursday, August 19, the day Moriarty went to pick up her paycheck, Axton, who was off that day, also stopped by to pick up her check. Shelley told Axton that Shelley had discharged Moriarty. Accord- ing to Axton, Shelley appeared very upset and said that someone had told her what was said at the union meeting by Moriarty on Monday night. Shelley stated that she was very tired of Moriarty's complaints so she had let her go. Shelley further stated that if she had given the matter a few more hours thought she probably would not have fired Moriarty. Then she told Axton that if the latter had any complaints she could file a grievance and they would go to the office and have it out. Because this testimony of Axton went uncontroverted and because I have credited Axton in other respects, I credit Axton's testimony and find that the conversation between Shelley and Axton took place in much the manner that Axton related. There is much testimony concerning Moriarty's work record. Thus, Shelley testified that she discharged Moriarty because of the latter's work. According to Shelley, Moriarty was constantly arguing with other employees and made it a practice to leave her work station until the work was completed by others. In addition, according to Shelley, Moriarty was a poor worker and she fought and argued arrive at the home that morning until sometime after 8 a.m., I credit the testimony of the employees who testified as to the conversation which they claimed took place at 6 30 a m. between themselves and Shelley While the records of the Respondent show that employee Marsh did not work on that morning, I nevertheless credit the testimony of the other employees. They did not exaggerate or embellish their testimony and they testified in a simple, straightforward manner. I do not believe that they conspired to tell an untruth with regard to this incident. I find and conclude , therefore, that the incident actually did occur and that Shelley did ask the questions and make the remark that they testified she made I therefore do not credit Shelley's denial of the incident. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with other employees. Furthermore, Moriarty was unpleas- ant and was rude and disrespectful towards patients. Shelley further testified that she had a difficult time in getting other employees to work with Monarty and some employees quit because they could not, or would not, work with Moriarty. Shelley stated, in testifying, that she spoke to Moriarty on a number of occasions and asked her to improve in her work and her attitude but that this did not have any effect on Moriarty. Shelley further testified that since Moriarty's discharge the kitchen has been pleasant and Shelley has not had to return to work from home at night to settle matters which she had had to do when Moriarty was still working. Supporting Shelley's testimony was the testimony of Bell to the effect that Moriarty was not a satisfactory worker; that she used foul language and was rude to patients; she could not get along with other employees; other employees refused to work with her; and Moriarty would habitually leave her work area until the work was completed by others. Ada Cheney, an employee who had worked with Moriarty, further testified that Moriarty used loud lan- guage, argued with other employees, and complained about being overworked. Cheney further testified that two or three times each week Moriarty would disappear until all the work was finished. Joan Cadigan, the administrator of the home, testified that she had received reports from Shelley that Moriarty was not a satisfactory worker and that Moriarty had been rude to patients, argued with employees, did not perform her work correctly, and did not follow instructions. Furthermore, she testified that three employees left work because they could not work with Moriarty and could not stand the daily fights and arguments. Moriarty herself admitted that to a certain extent other employees would not work with her and did not like her. C. Discussion and Concluding Findings With Regard to the Discharges 1. Alma Sacharcyzk Counsel for the General Counsel contends that Sachar- cyzk's discharge was the result of her union activity. He argues that Sacharcyzk was one of the two persons organizing on behalf of the Union; that the Respondent learned of this and discharged her immediately. He further argues that the reasons asserted by the Respondent for Sacharcyzk's discharge are pretextual in nature and that the real reason was, as stated , that she was organizing on behalf of the Union. On the other hand, the Respondent's thesis with regard to Sacharcyzk's discharge is quite simple. Respondent's counsel argues that Sacharcyzk gave her unlisted home telephone number to employees with the instruction that the employees call her if there was any trouble in the home. Respondent states that such action by Sacharcyzk constituted insubordination in that all com- plaints with regard to matters coming up in the home are to be channeled through the normal supervisory hierarchy and that any other system would result in chaos and would constitute violation of state laws. On the basis of the record as presented, and on the basis of the facts as set forth heretofore, I find and conclude that the contentions of the General Counsel have merit. Aside from the incident involving police visits to the nursing home, Sacharcyzk appears to have been a satisfactory employee. The uncontroverted testimony in the record shows that she was apparently well liked by the patients-certainly an important factor in a nursing home. Moreover, as admitted by Madsen, the police matter was dropped long before the events of the week of May 10. Considering the foregoing fact, the sudden discharge of Sacharcyzk without giving Sacharcyzk an opportunity to explain her actions, renders the discharge suspect . This is especially true in view of the fact that the discharge came at the height of Sacharcyzk's union activity. Although the Respondent's witnesses profess that Sacharcyzk 's union activity was not even considered at the time of the discharge, it is established by the record and by the testimonial admission of Jane Cady, the director of nurses, that not only she but also Madsen and Cerveney were aware of the fact that Sacharcyzk was passing out union authorization cards to the various employees of the home. Furthermore, the denials that Sacharcyzk's union activity was not considered in the process of discharging her are rendered untenable by the testimony of Rita Lamora whom I have heretofore credited. Lamora testified that Madsen stated to her that they had to find out who started the union activity among the employees of the home. Then, in the same conversation, Lamora asked Cady if Sachar- cyzk was the one who started the union activity and Cady answered in the affirmative. Whereupon Lamora over- heard Mrs. Cady say to Madsen "we should have let her go then instead of taking her back" (referring to the police matter). Then Madsen said, "Why don't you let her go and see what is going to happen ?" Cady's closing remark was "She [referring to Sacharcyzk ] is an instigator." I have also taken into consideration the testimony of Judith Shoro, who was told by Cerveney, "Well, I let one girl go from all the trouble we were having up there." And then he specifically denied that he was referring to the trouble that they had before, meaning the police incident. Although he did not specifically mention Sacharcyzk, she was the only one who had been discharged at that point of time. The trouble he was referring to, since there was no other trouble in the home to which the Respondent's witnesses testified, must have been the union organization. Of course, the decision to fire Sacharcyzk the same day as Respondent learned about her union activity is indicative of the haste with which the Respondent made up its mind to discharge Sacharcyzk without giving her an opportunity to explain what she had done . As the General Counsel points out, the answer is obvious. I have given due consideration to the fact that Janet Axton, the other employee who gave out union cards was also known to the Respondent at the same time as Sacharcyzk's activities became known . However, it is easily ascertainable from a reading of the record that Sacharcyzk was considered somewhat a leader among the employees. The fact is that Cady emphatically stated that Sacharcyzk was an instigator. Accordingly, I do not find that the fact that Axton was not also discharged is a bar to finding that ELDERCARE OF SPRINGFIELD, INC. the Respondent discharged Sacharcyzk for her union activities. Finally, there is the consideration of the conflicting testimony of Cady and Madsen as to Madsen's knowledge or lack thereof of Sacharcyzk's union activity. Madsen stated that he did not know Sacharcyzk was passing out union authorization cards. Cady, on the other hand, stated that she told Madsen that Sacharcyzk was passing out cards. Madsen also testified that he told Cady to discharge Sacharcyzk and that Cerveney had nothing to do with it. On the other hand, Cady testified that Madsen told her that Cerveney had made the decision to fire Sacharcyzk. I conclude that this conflicting testimony establishes that both Madsen and Cady were attempting to evade the issue as to whether or not there was Respondent knowledge of Sacharcyzk's union activity prior to her discharge. Surely, if there was no antiunion motivation in the discharge of Sacharcyzk, why would there have been an attempt to evade the disclosure of the fact of Respondent's knowledge of Sacharcyzk's union activity. - Accordingly, I find and conclude that the Respondent discriminatorily discharged Sacharcyzk for engaging in union activity and that such discharge was, therefore, violative of Section 8(a)(3) and (1) of the Act. 2. Alice Moriarty Simply put, the General Counsel contends that Moriarty was discharged for having complained about the working conditions at the home at a union meeting which occurred on Monday night, August 16, 1971. The Respondent, on the other hand, contends that Moriarty was a poor worker and generally an unsatisfactory employee and that she was discharged simply for those reasons and for no other. That Moriarty was less than a satisfactory employee, I find, is established by the record. The testimony of Respondent witnesses Shelley, Bell, Cadigan, and Cheney, although not fully credited in every respect, establishes beyond doubt that Moriarty was highly critical of and unable to get along with her coworkers; Moriarty's coworkers could not get along with her; Moriarty com- plained incessantly about working conditions in front of her supervisors and her coworkers; and Moriarty disap- peared at times during the busiest rush periods in the dining room and the kitchen and reappeared only after her coworkers had performed the necessary work. Moreover, the record establishes that, by reason of Moriarty's difficult disposition, several of her coworkers quit their jobs. Thus, the record establishes that had Respondent so chosen it could have discharged Moriarty for cause any time from Moriarty's original hire until her discharge. However, the Respondent, in effect, condoned Moriarty's conduct for a period of several months without taking steps to discharge Moriarty. Thus, Moriarty displayed the qualities which Respondent claimed led to her ultimate discharge as early as the first weeks of her employment. However, Shelley, Moriarty's immediate supervisor, testi- fied that she did not discharge Moriarty because Shelley decided to try to establish peace and tranquillity in the ' This from the testimony of Moriarty Although I would hesitate to credit Moriarty in this respect, the testimony of Axton, of a like nature, 219 kitchen and in the dining room and to cause the operation to work smoothly. She said, therefore, that she was willing at all times to give Moriarty the benefit of the doubt and that she was willing to carry Moriarty in seeking to establish peace and a cooperative spirit among the workers under her supervision. In view of this fact, consideration must be given to the ultimate straw that, the Respondent claims, broke the camel's back and caused Moriarty's discharge. According to Bell and Shelley, on the afternoon of Monday, August 16, Moriarty complained bitterly that the ladies on the night shift in the kitchen and dining room were doing all the work and that the day shift was doing very little and that it was up to the night shift to do the work that the day shift should have been doing. According to Bell and Shelley, Shelley had already left for the day and had gone home when this complaint of Moriarty was aired. Immediately thereafter, Bell called Shelley at the latter's home and informed her of the complaints of Moriarty. According to Shelley, she told Bell that she would come in the next day to straighten the matter out or settle it, or words to that effect. She did not tell Bell, according to her own testimony, that she was going to discharge Moriarty. Nor did Bell testify that Shelley told her in that telephone conversation that Shelley would discharge Moriarty. According to Shelley, however, she made up her mind at that time that she would discharge Moriarty. Nevertheless, the credited testimony of what occurred the next morning belies this claim of Shelley. As heretofore related, General Counsel's witnesses Mendrala, Prophett, Shea, and Marsh almost uniformly testified that the following morning, August 17, Shelley appeared at the home and questioned some of these witnesses with regard to their attendance at the union meeting the night before, at which Moriarty complained about the working condi- tions of the home. Shelley, in the presence of Mendrala, Prophett, Shea, and Marsh, then asked if they had heard what Moriarty had said. Shelley stated that she was going to call Moriarty and give her a good long vacation if she was so tired from overwork. According to these witnesses, Shelley was upset and angry when she said this. Then, either on that day or the following morning, after Shelley had exhibited to the assembled employees that she was upset over what Moriarty had said at the meeting on the night of August 16, Shelley discharged Moriarty., Thereafter, on the afternoon of August 19, Moriarty returned to the home to pick up her paycheck and talked to Shelley. During that conversation Shelley told Moriarty "After every union meeting there is trouble. I believe you went too far and overboard Monday at the last union meeting. I won't stand for it, Alice. You are through." 7 On the same day but about an hour later, Axton, who had been off for several days, stopped by to pick up her check. Shelley had a conversation with Axton and told Axton that she had discharged Moriarty. Shelley stated, in substance, that she had heard what was said at the union meeting and she was upset and had discharged Moriarty therefore. By reason of all of the foregoing, I find that although supports Moriarty and, accordingly, I credit Moriarty and Axton 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent asserted and had a valid cause for discharging Moriarty it failed to do so until Monarty's complaints registered at the union meeting were conveyed to Shelley. It was, I find, at that point that Shelley made up her mind to discharge Moriarty. The Board has long held that the evidence of a valid cause for discharge is no defense , where, the motivating factor is discriminatory and unlawful.8 Thus I find and conclude that the real reason for the discharge of Moriarty as shown by the testimony of General Counsel 's witnesses was that Moriarty had spoken out about working condi- tions at a union meeting and Shelley was therefore upset and determined to discharge Moriarty for this reason. There is no question, and it is well established that participation in union meetings is clearly protected activity.9 At the union meeting, when she complained, Moriarty was attempting to induce group action to correct what Moriarty considered a grievance against her employ- er. Such activity is protected and it was for this activity that Moriarty was discharged. Accordingly, although I find that Moriarty was not a satisfactory employee, I am con- strained to find that her discharge was brought about by her complaining and airing grievances at the union meeting which was a protected activity and that, therefore, the discharge for these reasons was violative of Section 8(a)(3) and (1) of the Act. 3. Interference, coercion, and restraint The General Counsel contends that when Cerveney told Shoro at the telephone conversation between Cerveney and Shoro after Shoro had been laid off, that "Well, I let one girl go from all the trouble we were having up there" following as it did upon the discharge of Sacharcyzk, constituted a threat of discharge to Shoro and was therefore violative of Section 8(a)(1) of the Act . However, I find that this remark, although indicative of the reasons for the discharge of Sacharcyzk, was too ambiguous in nature to constitute a threat of discharge to Shoro. Moreover, I find that Shoro had already been discharged as of the time that this remark was made. General Counsel further points out that when Cady discharged Sacharcyzk she told her "Mr. Madsen and Mr. Cerveney want me to let you go. You are an instigator." Counsel for the General Counsel argues that such remark to Sacharcyzk, in the light of the discharge of Sacharcyzk, constitutes a threat of discharge for union activities to anyone who was an instigator of union activities . Under all of the circumstances, I find and conclude that this remark to Sacharcyzk by Cady did constitute a threat of discharge of anyone who instigated union activity in the home and was therefore violative of Section 8(a)(1) of the Act. On Tuesday, August 17, Shelley asked Mendrala and Prophett whether the latter had attended the union meeting the night before. This question, put to these employees by Shelley, who was not their supervisor , gave the impression of surveillance of the union meeting. The impression of surveillance is violative of Section 8(a)(l) of the Act, and I so find.10 8 Kansas Milling Company, 86 NLRB 925, 928, Dunrail Construction Co., 151 NLRB 98, 105. 9 Tri-State Stores, Inc, 185 NLRB No.l 17. See also Office Towel Supply In the same conversation, Shelley made the statement that Moriarty would get "a good long vacation " for her activity, referring to Moriarty's airing of grievances at the union meeting the night before . This then constituted a threat of discharge to the employees , warning them that anyone who complained at union meetings was subject to discharge by the Respondent . Such a threat is clearly violative of Section 8(a)(1) of the Act, especially in view of the fact, as in this case, the discharge was carried out the following day. On Thursday, August 19, Shelley , in speaking to Axton, gave a further impression of surveillance when she stated that Moriarty had been fired for speaking out at a union meeting. This also constituted a threat of discharge to anyone who engaged in similar activity . Accordingly, I find this conversation of Thursday afternoon between Shelley and Axton to have been violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above , have a close, intimate, and. substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has engaged in activities constituting interference, coercion, and restraint within the meaning of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and from any like or related conduct. It having been found that Respondent has discriminato- rily discharged Alma L. Sacharcyzk and Alice Moriarty, I shall recommend that Respondent offer said employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. In addition, I shall recommend that the Respondent make each of them whole for any loss of earnings each may have suffered by reason of the discrimination against her by payment to each of the sum of money equal to that which each would normally have earned from the date of her discharge, less net earnings during said period. Backpay shall be comput- ed with interest on a quarterly basis in the manner proscribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295, and his Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact and upon the entire record in the case, 1, make, the following: Company, Inc., 97 NLRB 449, enforcement denied 201 F.2d, 838. 10 Columbian Carbon Co., 79 NLRB 62, A B. Rochat Co, 150 NLRB 1402. ELDERCARE OF SPRINGFIELD, INC. 221 CONCLUSIONS OF LAW 1. The 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 interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging employees Alma L. Sacharcyzk and Alice Moriarty, the Respondent has violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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: 11 ORDER Respondent, Eldercare of Springfield, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge for engaging in union or other concerted, protected activity. (b) Creating the impression of surveillance of their employees' union or other concerted, protected activities. (c) Discouraging membership in National Union of Hospital and Nursing Home Employees, Local 1199 Massachusetts, a/w Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by discharging any employee for engaging in protected union or concerted activity, or by discriminating against employees in any other manner in regard to their hire or tenure of employment, or any terms or conditions of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to form, join, assist, or be represented by the aforesaid union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining, or other mutual aid and protection, or to refrain from any or all such activity. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Alma L. Sacharcyzk and Alice Moriarty immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges enjoyed, and make each whole for any loss of earnings each may have suffered by reason of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, and all other reports necessary to analyze the amount of backpay due under this recommended Order. (c) Post at its nursing home in Springfield, Massachu- setts, copies of the attached notice marked "Appendix." 12 Copies of said notice on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. No other material relevant to this matter shall be posted during this period. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.i3 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 11 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 12 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 13 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 1, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give our employees the impression that we are spying on their union activities. WE WILL NOT tell our employees that we will discharge them or otherwise discriminate against them for engaging in union or other concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist or be represented by National Union of Hospital and Nursing Home Employees, Local 1199 Massachusetts, a/w Retail, Wholesale and Department Store Union , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to Alma L. Sacharcyzk and Alice Moriarty immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and we will make them whole for any loss of 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnings they may have suffered as a result of our discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of National Union of Hospital and Nursing Home Employees, Local 1199 Massachusetts, a/w Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. Dated, By (Representative) (Title) ELDERCARE OF SPRINGFIELD, INC. (Employer) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.