Garden of Eden Nursing Home, Inc.,

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garden of Eden Nursing Home, Inc., and/or Eden- Forest Nursing & Rest Home, Inc. and National Un- ion of Hospital & Nursing Home Employees Local 1199H, Retail, Wholesale, and Department Store Union, AFL-CIO and Mrs. Charley Mae Chenault. Cases 9-CA-6341 and 9-CA-6474 September 14, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On April 24, 1972, Trial Examiner Arthur M. Goldberg issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Respondent, Garden of Eden Nursing Home, Inc., and/or Eden-Forest Nursing & Rest Home, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 The Respondent has excepted, inter a/a, to the Trial Examiner's failure to credit the Kinderlehrers' testimony that they were in New York on June 8, 1971, and has attached to its brief a copy of an invitation to a wedding held at 6:30 in the evening on that date and copies of affidavits asserting that the affiants flew from Cincinnati to New York with the Kinderlehrers on June 7 and that the Kinderlehrers were present at the wedding . Respondent concedes that the affidavits are not part of the record, has made no formal motion for a rehearing or other disposition based on the affidavits , and does not assert that this evidence is newly discovered or that the affiants were unavailable to testify at the hearing. See Sec 102.48(d) of the Board's Rules and Regulations, Series 8, as amended 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. TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Hearing in the instant proceeding opened in Cincinnati, Ohio, on October ,21, 1971,1 pursuant to an Order Consolidating Cases and Notice of Hearing issued by the Regional Director for Re- gion 9 on October 8 consolidating for hearing the com- plaints issued in Case 9-CA-6341 on August 30 and in Case 9-CA-6474 on October 8. The complaint in Case 9- CA-634 1, based on a charge filed on June 1 by the National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO (hereinafter referred to as the Union), alleged that on various dates in June agents and supervisors of the Garden of Eden Nursing Home, Inc. (hereinafter referred to as Garden of Eden), interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the National Labor Relations Act, as amended (hereinafter re- ferred to as the Act), and on June 15 discharged Jrvonne Sartor in violation of Section 8(a)(3) of the Act. The com- plaint in Case 9-CA-6474, based on a charge filed on Sep- tember 15 by Mrs. Charley Mae Chenault, an individual, alleged that on August 11 Garden of Eden discharged Che- nault in violation of Section 8(a)(3) of the Act. Garden of Eden's answers admitted all of the jurisdictional allegations of the complaint but denied all material allegations of viola- tion. During the course of the hearing on October 21 the evidence developed that at the time of her termination on August 11 Chenault was employed by the Eden-Forest Nursing & Rest Home, Inc., rather than by Garden of Eden. Counsel for General Counsel and counsel for the Union then sought to introduce evidence that Garden of Eden and Eden-Forest Nursing & Rest Home, Inc. (hereinafter called Eden Forest), were a single employer within the meaning of the Act. This evidence was rejected because Eden Forest was not a party to these proceedings at that point. General Counsel then offered a motion to amend the complaint to add Eden Forest as a party respondent. This motion was denied because the Board does not acquire jurisdiction of an employer for the purposes of unfair labor practice pro- ceedings in the absence of a charge filed under the Act. Thereafter, without objection from the representatives of Garden of Eden, a continuance was granted to counsel for General Counsel for the purposes of filing a charge against Eden Forest and the issuance of an amended consolidated complaint by the Regional Director for Region 9 if, after investigation, he determined that such action was warrant- ed. An amended charge in Case 9-CA-6474 was filed by Chenault by October 21, and on October 29 the Regional Director for Region 9 issued an amended consolidated com- plaint and notice of hearing naming as Respondent therein Garden of Eden Nursing Home, Inc., and/or Eden-Forest Nursing & Rest Home, Inc. This complaint realleged the allegations of the original complaint. In addition, the amended complaint alleged at paragraph (2)(c) that "at all times material herein, Respondent Garden of Eden and Respondent Eden-Forest have operated as an integrated enterprise with centralized control of labor relations, com- mon management, and common financial control , and, as such, constitute a single employer." 1 Unless otherwise noted all dates hereinafter are in 1971. 199 NLRB No. 5 GARDEN OF EDEN NURSING HOME , INC. 17 The Respondents filed answers to the amended consol- idated complaint on November 9 wherein each, inter alra, denied the material allegations of violation and specifically denied the allegations of paragraph 2(c) that Eden-Forest and Garden of Eden constitute a single employer. The hearing resumed on November 11 and was con- cluded the following day, November 12. All parties participated in the hearing and were afford- ed full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argu- ment, and to file briefs. Oral argument was waived, General Counsel filed a brief, and a joint brief was filed by the Respondents. Upon the entire record in the case and my reading of the briefs, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACr I THE BUSINESS OF THE RESPONDENTS Garden of Eden Nursing Home, Inc., an Ohio corpo- ration, is engaged in the operation of a proprietary nursing home in Cincinnati, Ohio. During the 12 months preceding issuance of complaint, a representative period, Garden of Eden received gross revenues in excess of $100,000 in the course and conduct of its business. The complaint alleged, the answer admitted, and I find that Garden of Eden is, and has been at all times material herein, an employer as defined in Section 2(2) of the Act and is, and has been, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. Eden-Forest Nursing & Rest Home, Inc., an Ohio cor- poration, is engaged in the operation of a proprietary nurs- ing home in Cincinnati, Ohio. During the 12 months preceding issuance of complaint, a representative period, Eden-Forest in the course and conduct of its business re- ceived gross revenues in excess of $100,000. The complaint alleged, the answer admitted, and I find that Eden-Forest is, and has been at all times material herein, an employer as defined in Section 2(2) of the Act and is, and has been, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. Garden of Eden and Eden-Forest are owned and con- trolled by the Kinderlehrer family. Mr. Joseph Kinderlehrer and his wife Rachel each own 30 percent of the stock of the two corporations. Their son and daughter each own 20 per- cent of each corporation. The boards of directors of the two corporations are composed of the same three people-Mr. and Mrs. Kinderlehrer and their son. Mr. Kinderlehrer is president and chairman of the board of both corporations. Mrs. Kinderlehrer is vice president and treasurer of both corporations. The Kinderlehrer's son is the secretary of both corporations. Mr. and Mrs. Kinderlehrer possess authority to sign paychecks for both corporations and on occasion the bookkeeper or the administrator of the home has had that authority. Garden of Eden and Eden-Forest occupy contiguous buildings separated at various points by 35 to 60 feet. The two buildings occupy a common site which is surrounded by a fence but there is no fence between the two buildings. In addition to occupying a common site Garden of Eden and Eden-Forest use a number of facilities in common. There is one timeclock for the employees of the two homes which is located in the Eden-Forest building. Mr. Kinder- lehrer testified that a laundry service is employed to supply towels and linens for both Eden-Forest and Garden of Eden, but that this service does not have enough linens to meet the needs of the two nursing homes and that therefore linens are washed from time to time in the laundry in the Eden-Forest building. In addition, personal laundry of Gar- den of Eden patients is washed in the laundry in the Eden- Forest building. Catherine Hill, who operates the laundry, is an employee of Eden-Forest. She was interviewed for the job at Garden of Eden by Mrs. Kinderlehrer. The physical therapy room which services the needs of patients of both Garden of Eden and Eden-Forest is located in the Garden of Eden building. Eden-Forest patients go to the Garden of Eden building for physical therapy or receive such services at the offices of private physical therapists located away from the nursing homes. As with the physical therapy room there is only one chapel to be used by the patients of the two nursing homes. The chapel is located in the Garden of Eden home and Eden-Forest patients may use the Garden of Eden chapel if they are physically able to do so. Both Garden of Eden and Eden-Forest are licensed by the city of Cincinnati to maintain kitchen facilities. Howev- er, since a fire at Eden-Forest in 1964 or 1965, all cooking for the two nursing homes has been done at the Garden of Eden kitchen. Food for Eden-Forest patients, after being cooked in the Garden of Eden kitchen, is taken to the Eden- Forest kitchen where it is kept warm while being distributed to Eden-Forest patients. Mrs. Rachel Kinderlehrer is administrator of both Gar- den of Eden and Eden-Forest. There is a director of nursing at each of the nursing homes, Mrs. Toohey performing that function at Eden-Forest and Mrs. Satzger holding the posi- tion at Garden of Eden. Mr. Kinderlehrer testified that Toohey and Satzger are under the supervision of Mrs. Kin- derlehrer, as the administrator. Mrs. Kinderlehrer can dis- charge the director of nursing. He further testified that the weekly work schedule for Garden of Eden is prepared by Mrs. Kinderlehrer and Mrs. Satzger and the work schedule for Eden-Forest is arranged by Mrs. Kinderlehrer and Mrs. Toohey. Mr. Kinderlehrer testified that wage rates for the same classifications of work at both homes should be the same and that the employees at Garden of Eden and Eden- Forest receive the same holidays and vacation benefits. Mrs. Kinderlehrer is involved in the granting of wage in- creases at both Garden of Eden and Eden-Forest. The vaca- tion schedule at Garden of Eden is worked out by Mrs. Kinderlehrer and Mrs. Satzger and that at Eden-Forest is determined by Mrs. Kinderlehrer and Mrs. Toohey. Mr. Kinderlehrer testified that yearend bonuses for employees are determined by a committee. The members of the com- mittee at Garden of Eden for the determination of yearend bonuses are Mr. and Mrs. Kinderlehrer and Mrs. Satzger, and the committee at Eden-Forest is composed of the Kin- derlehrers and Mrs. Toohey. There is a certain amount of interchange of employees between the two nursing homes. Charley Mae Chenault and Marilyn May both testified that they worked in both nursing homes, and Josephine Dorian testified that she assisted in the preparation of the meals in 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Garden of Eden kitchen and then took the food to the Eden-Forest building for distribution to the patients there. Mr. Kinderlehrer testified that he believed only professional help worked part of the week at Garden of Eden and part of the week at Eden Forest. Thus, the record discloses that there is common owner- ship of the two nursing homes, common control and man- agement and a common labor policy in the two nursing homes, and integrated operation of the two establishments. The nursing homes are owned in equal proportions by the members of the Kinderlehrer family. Mrs. Kinderlehrer controls the hiring and wage policy at both nursing homes and sits in on determination of vacation schedules, and she and her husband have the majority votes in the determina- tion of yearend bonuses. Additionally, the record discloses that wages, vacations, and holidays are the same for both nursing homes. The operations are integrated in that they share one kitchen for the preparation of all food and have only one laundry, one timeclock, one chapel, and one phys- ical therapy room and there is a certain amount of inter- change of employees. Accordingly, I find that for the purposes of the National Labor Relations Act, as amended, and for the purposes of the Board's processes Garden of Eden Nursing Home and Eden-Forest constitute a single employer.' Accordingly, I find that Eden-Forest and Garden of Eden, jointly and severally, are now and at all times mate- rial herein have been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meet the Board's standards for assertion of its jurisdiction. II THE LABOR ORGANIZATION INVOLVED National Union of Hospital & Nursing Home Em- ployees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, is, and has been at all times mate- rial herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Union's Organizing Campaign; Interrogation, Threats, and Coercion The Union began its organizing campaign among em- ployees working for nursing homes in Cincinnati on May 26. The first meeting of employees of those nursing homes was held on June 7 and was attended by employees of Garden of Eden, as well as Golden Age, another nursing home owned by the Kinderlehrers. A number of employees testified that on the day fol- lowing the June 7 meeting, Mr. or Mrs. Kinderlehrer spoke to them about their attendance at the meeting and about the Union. Henry Heard, employed at Eden-Forest as a porter and orderly, attended the union meeting on June 7 and signed a union card. Heard testified that on June 8 Mrs. Kinderlehrer called him to her office in Eden-Forest and 2 The facts that the two nursing homes are separately licensed by the State of Ohio and enter into separate agreements with the Social Security Adminis- tration and departments of the State of Ohio do not go to the question of whether they'constitute a single employer for the purposes of the Act asked if Heard had attended the umon meeting and whether employees from the Golden Age Nursing Home had been there. Heard replied that Golden Age people had been among the persons in attendance. Mrs. Kinderlehrer asked if Heard thought the Union was a good idea to which he replied that he thought it was good for benefits and better wages. Heard told Mrs. Kinderlehrer that the employees would make more money. Heard testified that Mrs. Kinder- lehrer was crying and said she didn't make much money because of the low fees she received for welfare patients and when Heard asked if she was going to fire any employees Mrs. Kinderlehrer said that she might have to close. Mrs. Kinderlehrer asked Heard if he had any umon literature and when he replied that he did she advised that he could be fired for passing it out. Mrs. Kinderlehrer also told Heard that she did not think the Union was a good idea because of the dues the employees would have to pay. Mrs. Kinderlehrer pointed out to Heard that if he did not have to pay dues to the Union he would have that money in his pocket. Anna Armstrong, head cook at Garden of Eden, testi- fied that she attended the June 7 meeting and signed a union card.3 Armstrong testified that on June 8 she was called to Mrs. Kinderlehrer's office where Mrs. Kinderlehrer asked if Armstrong would do her a favor. Mrs. Kinderlehrer said that she knew that Armstrong was at that meeting. When Armstrong asked what meeting, Mrs. Kinderlehrer replied the union meeting and added that she knew that Armstrong and a number of other employees whom she named had been there. Mrs. Kinderlehrer said that, although Arm- strong was privileged to attend any meeting she wished, she wanted to tell Armstrong that the Union was no good and that she did not want Armstrong to sign cards or pass out leaflets. Mrs. Kinderlehrer stated that if the Union came in there would be no more checks made out to Anna Arm- strong but rather they would be made payable to the Union. 3 Respondent sought to establish that Armstrong is a supervisor within the meaning of the Act. Mrs Kinderlehrer characterized Armstrong as "head- cook supervisor." Mrs Kinderlehrer testified that Armstrong supervises the kitchen help to see that the kitchen is in order and clean and that assignments are being properly carried out and that Armstrong is responsible for seeing that the diets prescribed by doctors and dieticians are given to the proper patients which entails marking the trays with the name of the patient and seeing to it that the proper food is placed on the tray Mrs Kinderlehrer claimed that Armstrong is responsible for making up a list of supplies to be ordered Mrs Kinderlehrer further testified that Armstrong, in carrying out her responsibility of seeing that the kitchen help are doing theirjobs, has "the right of letting go the person" and recommencing that new employees be hired Mrs Kinderlehrer cited a situation where Armstrong had stated that if an employee named Hill were not fired Armstrong would leave Mrs Kinderlehrer stated that she persuaded Armstrong to give Hill another chance but that usually Armstrong's recommendations would be carried out and that girls would be replaced when she so requested Armstrong denied that she had ever hired or fired an employee or had ever effectively recom- mended that such action be taken. Further, Armstrong stated that she had never been told that she could take such action Armstrong testified that she had no connection with the discipline of employees and that she would go to Mrs Kinderlehrer to ask permission if an employee wanted to leave early Armstrong testified that she had never participated in evaluation of employ- ees, had no authority to order an employee to work overtime , had no authori- ty to grant wage increases, and had never been consulted before an employee was disciplined I find that the Respondent has failed to establish that Arm- strong is a supervisor within the meaning of the Act. Rather, I find that Armstrong is an employee entitled to the protections of Section 7 of the Act Sunshine Food Markets, Inc, 174 NLRB 497 Cf Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266, 268-269, Sea Life, Incorpora- tion, 175 NLRB 982, 983 GARDEN OF EDEN NURSING HOME, INC. Mrs. Kinderlehrer asked Armstrong to talk to the girls in the dining room and to tell them that the Union was no good. Armstrong testified that she replied that she would talk to the girls in the dining room but did not tell Mrs. Kinderlehr- er what she would say. Marcus Coone, employed as a porter and orderly at Garden of Eden, attended the union meeting on June 7 and signed a union card. Coone testified that on the day follow- ing the union meeting, during his lunch break, Mrs. Kinder- lehrer told him to come to her office. There she said that she heard "that they are having a union" and that she did not want it. Mrs. Kinderlehrer told Coone that if the Union came around again he should not accept their card. Mrs. Kinderlehrer told Coone that the Union was not good for him and that it was composed of a bunch of hoodlums. Henry Heard testified about a conversation he had with Mr. Kinderlehrer during the afternoon of June 8, after his earlier conversation with Mrs. Kinderlehrer. The talk took place in Mr. Kinderlehrer's office in Garden of Eden. Heard acknowledged to Mr. Kinderlehrer that he had at- tended the union meeting after Mr. Kinderlehrer asked if Heard had been there. Heard testified that Kinderlehrer asked if nurses from Golden Age and Eden-Forest had attended the meeting and Heard replied that they had all been there. Kinderlehrer told Heard that if the Union got in it would be Heard's fault and reminded Heard that the Respondents had done Heard a favor in the past by lending him money to fix his car. Kinderlehrer asked Heard if he had any union literature and cards and when Heard replied that he did Kinderlehrer said that he could not pass them out on the Respondents' property. Mr. and Mrs. Kinderlehrer both testified that they left Cincinnati on June 7 to attend a wedding in New York and had not returned until late in the day on June 9. Both claimed that they had no knowledge of union activity before their trip to New York. Mrs. Kinderlehrer claimed to have first learned of union activity when there was a union dem- onstration on June 15, "when we had a letter." Mrs. Kinder- lehrer stated that the only conversation she had had with Heard was sometime in June and had concerned a problem he was having with his car for which he needed a salary advance. As to Anna Armstrong, Mrs. Kinderlehrer merely denied having had a conversation with the head cook about the Union on June 8. In reference to Marcus Coone, Mrs. Kinderlehrer stated that she had no conversation with him concerning the Union and that her only talk with Coone had been about complaints that Coone was bringing alcohol and beer onto the premises of the nursing home. Mrs. Kin- derlehrer stated: "That was about two or three times al- ready that we discussed that." Mr. Kinderlehrer denied having a conversation with Heard on June 8. Kinderlehrer claimed that he first learned about the union activity during the morning of June 10 when he picked up the mail which included a letter from the Union. Kinderlehrer stated that he had not been aware that employees had attended union meetings until after the June 15 union demonstration when he acquired this knowledge from "the grapevine." Kinder- lehrer testified that he did have a conversation with Heard on or about June 20 or 21 when he called Heard and asked him to stay on his own job only and not to become involved in other tasks because of damage he caused. 19 I do not credit the Kinderlehrers in their claim that they were away from Cincinnati on June 7 and 8. First, based on their demeanor while testifying, I would not credit the Kinderlehrers, particularly Mrs. Kinderlehrer, unless supported by other credited corroborating testimony or evi- dence. Second, the Kinderlehrers, particularly again Mrs. Kinderlehrer, showed a tendency throughout their testimo- ny to exaggerate and to fabricate. In this connection Mrs. Kinderlehrer's testimony concerning the events of June 15, discussed below, is a notable example of exaggeration and creativity. Finally, I find that the employee witnesses who testified to the conversations, interrogations, and threats which occurred on June 8 were creditable in their appear- ance, and the reaction of the Kinderlehrers as noted in the employees' testimony is consistent with the conduct of the Respondents in meeting the appearance of unionization of their employees. Accordingly, I find that in various conver- sations with employees on June 8 the Respondents interro- gated employees concerning their own union activities and the protected activities of other employees, threatened them with loss of benefit if the Union organized the Employer's operations, created the impression of surveillance of pro- tected concerted activities, and unlawfully interdicted pro- tected activities on the premises of the Respondents, all in violation of Section 8(a)(1) of the Act. B. The Events of June 15 1. The union demonstration At a meeting with the employees on June 14, John Black, a union representative, arranged for the employees to assemble outside Garden of Eden the following morning to present to Mrs. Kinderlehrer the fact of the Union's majority and to demonstrate visibly that majority to her. Black arranged for the employees to assemble at 7:30 a.m. and asked the third-shift employees, who were scheduled to work until 8 a.m., to finish their shift and not to join the demonstration until after their shift was ended. Pursuant to these arrangements a group of employees assembled outside the home about 7:30 a.m. on June 15 and the Union distrib- uted hats and buttons to them while they waited for Mrs. Kinderlehrer to arrive. In the group was Charley Mae Che- nault, a licensed practical nurse, who worked for the Re- spondents. When Black learned that Mrs. Kinderlehrer had not arrived at the nursing home, he asked if any one present knew how to contact her by phone. Chenault volunteered to call Mrs. Kinderlehrer; she then went into the home and on her return stated that she had called Mrs. Kinderlehrer who was on her way to Garden of Eden. Black testified that Mrs. Kinderlehrer entered the nursing home by a side door at approximately 7:55 a.m. Shortly after 8 a.m. Black, ac- companied by 15 to 20 employees, entered the nursing home and stationed himself in the lobby. Black stated that he believed the third-shift employees joined the group in the lobby. Black testified that he could see Mrs. Kinderlehrer The employees who testified as to the events of June 8 are presently employed by the Respondents All impressed me as being intelligent witness- es who were knowingly testifying against the interest of their Employer Accordingly, I afford great weight to their testimony Federal Envelope Com- pany, a Division of Nationwide Papers Incorporated, 147 NLRB 1030, 1036 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through glass doors leading from the lobby and that when she did not come out to meet with the group he asked Chenault to go in and ask Mrs. Kinderlehrer to come out and speak to the employees. Chenault reported that Mrs. Kinderlehrer said she was too busy making breakfast. Some minutes later Mrs. Kinderlehrer did come out into the lobby and told the employees that they had no business there and that she would not talk to them and would call the police to throw them out. Black asked Mrs. Kinderlehrer to listen for 10 minutes but she left through the doors into the nurs- mg floor. Shortly thereafter two policemen arrived and asked what the problem was. Black explained that they were there to see Mrs. Kinderlehrer, that they represented the employ- ees, and asked the policemen to request Mrs. Kinderlehrer to come out and talk so that everyone could return to work. Patrolman David Tilford, a Cincinnati policeman, tes- tified that he received two calls during the morning of June 15 to go to Garden of Eden. The first call was to investigate a disorderly crowd in front of the nursing home. When Tilford arrived he discovered three or four people on the sidewalk who were just standing there but could find no disorderly crowd. He reported his findings. The second call came about 5 minutes later and he was directed to see the operator of the nursing home in reference to a disorderly crowd. Tilford testified that the operator of the home told him that she was having labor problems and that there were some 20 to 25 people in the lobby of the home. She further told Tilford that she did not want them on the premises; that she was trying to prepare breakfast and did not have time to deal with them; and she asked Tilford to put them off the premises. Tilford then went to the lobby and spoke to Black who advised the policemen that they were there to try to organize a union and only wanted to speak to Mrs. Kinderlehrer and that there would be no trouble. Tilford reported to Mrs. Kinderlehrer that the assembled group only wished to speak to her, and she replied that she did not have time to talk to them. Tilford relayed this message to Black who stated they would wait around and see what developed. Tilford advised Black that the assembled group would have to be orderly or they would have to leave. Black assured Tilford that there would be no trouble and there was none. Tilford testified "nobody was loud or disorderly." After Tilford reported in, his superior came out to Garden of Eden, took over from Tilford, and talked to both Mrs. Kinderlehrer and Black. By the time Tilford's sergeant arri- ved everyone was going back to work following Black's advice that they go about their daily duties. Tilford recalled that sometime in his conversation with Mrs. Kinderlehrer she told him that she had fired one of the girls and that she had considered firing everyone. Tilford testified that there was no problem whatsoever with the crowd in the lobby, that there was no destruction of property, and that he did not see anything broken. At the time Tilford left Garden of Eden all in the group had left the lobby; those who were on duty had returned to work and the others had left. Black testified that about the time the police were there Mr. Schatz, who identified himself as the administrator or supervisor, came in, and Black asked Schatz to explain to Mrs. Kinderlehrer that it would only take 3 or 4 minutes for him to explain their case to her and then everyone would go back to work. Schatz stated that he would try; he went into the nursing home but never came back out. Black stated that he later saw Schatz working, wearing an apron. About 9 a.m. the group left the lobby of the nursing home and a vote was taken for everyone to go back to work. Black testified that the employees returned to work about the time another police car arrived. A higher grade police officer asked who the group was and told Black that the police were not going to get involved in a labor dispute. The police then left. Black testified that he left Garden of Eden about 9:15 a.m. and that the group had been assembled for a total of approximately 55 minutes. Bernard Schatz, who is no longer employed by the Respondents, testified that he arrived at Garden of Eden on June 15 about 8:15 a.m. When he entered he discovered a crowd of about 20 people in the hallway leading to the kitchen. Schatz denied that he had spoken to any of the people in the hallway or that any of them had spoken to him. Schatz testified that the employees returned to work in the kitchen about 9 a.m., at which time they resumed their normal duties. He recalled that after the crowd dispersed the employees came through the door, that there was noth- ing unusual about their entrance into the kitchen, and that there were no loud noises. Mrs. Kinderlehrer testified that she first learned of the demonstration, which she characterized as a walkout, from Chenault's call. Mrs. Kinderlehrer claimed that Chenault had told her that all of the Garden of Eden and Eden-Forest employees had left work and that patients had been left without care. Mrs. Kinderlehrer claimed that she had beg- ged Chenault to stay until Mrs. Kinderlehrer arrived and had pointed out that Chenault's nursing license would be endangered if she left her patients. Mrs. Kinderlehrer testi- fied that Chenault replied, "to hell with you and your pa- tients." Mrs. Kinderlehrer claimed that Chenault was supposed to be on duty at that time. Mrs. Kinderlehrer testified that when she arrived at the home about 7:45 a.m. all of the entrances were blocked. Mrs. Kinderlehrer stated that only two employees were on duty at the time but that two others arrived shortly thereafter. Mrs. Kinderlehrer then started preparing breakfast and after going into the kitchen she saw a large group of employees blocking the lobby and interior passages. According to Mrs. Kinderlehr- er, "there was some screaming going on and loud noises. Some patients were crying that they needed some help." After the police arrived, Mrs. Kinderlehrer testified, she was told that the group would not-leave until they had talked to her. Mrs. Kinderlehrer told the police officers that she could not speak to the group because she had to get breakfast to the "dying people which were left from last night with no breakfast." She claimed that the policeman said he needed help and was sending for it. Sometime later , according to Mrs. Kinderlehrer's version of the events, additional police cruisers arrived and "with all the other help that the police got they got everybody out from the building." Mrs. Kmderlehrer testified that after the employees had left the building the police said that they had to leave, and she went about getting breakfast to the patients. Mrs. Kinderlehrer testified that at that time "we heard a noise, all of the employees just rushed in through the front door, GARDEN OF EDEN NURSING HOME, INC. they ripped the door and rushed in with loud and unbehav- ior-like conduct." Thereafter the employees went back to work and resumed their normal stations. During her testi- mony Mrs. Kinderlehrer stated that she did not recall telling the policemen that the employees were involved in union activities or that she had fired an employee and was consid- ering firing the others. This contradicts the testimony of Patrolman Tilford. Further, contrary to Patrolman Tilford, Mrs. Kinderlehrer claimed that she heard noise from the employees in the lobby during the demonstration. After the demonstrators left the building, Mrs. Kinder- lehrer testified, she locked an aluminum fire door in front. Later that day she discovered that the aluminum door had been broken. Contrary to Mrs. Kinderlehrer, Schatz testi- fied that he did not see any doors broken. During the course of Mrs. Kinderlehrer's testimony, she claimed that Chenault had been on duty at the time of the demonstration and that she had asked Chenault to stay at her station to care for the patients. Chenault's timecard for the week June 13 to June 19 was produced at the hearing. Chenault worked the night shift, the third shift, during the time she was on duty. The third shift runs from midnight to 8 a.m. On her timecard, next to the timeclock entries for Sunday to Monday, appear the words "walked out on strike." However, the demonstration took place not on Monday morning, June 14, but rather during the morning of Tuesday, June 15. Schatz testified that he made the entry on Chenault's card because he saw her in the hallway at the time of the demonstration and that he did this although the card shows that she was not on duty at the time. Chenault testified that she signed her timecard for the week of June 13 through June 19 on the Saturday ending that week, the last work shift of the week. Chenault stated that at the time she signed the card the words "walked out on strike" were not on her timecard. The events surrounding the demonstration on June 15 do not figure in this proceeding as an unfair labor practice. However, the testimony offered by the various witnesses called is helpful in the disposition of the allegations of the complaint herein insofar as they throw light on and help establish the credibility of the various witnesses. Patrolman Tilford, a Cincinnati policeman, was a most credible witness who had no interest whatsoever in these proceedings and testified as to what he heard and saw during the perfor- mance of his duties. I afford great weight to his testimony. Mrs. Kinderlehrer's testimony as measured against the yardstick of Tilford's account of the events suffers in com- parison. Thus, her claims that the participants in the demon- stration were unruly, that there was loud noise in the hall, and that they left only because of the intervention of the police all appear as embellishments on her part. The efforts by Mrs. Kinderlehrer both through oral testimony and the timecard of Chenault introduced into evidence to create the impression that Chenault had left the patients under her charge in order to participate in the demonstration are sig- nificant in the assistance they yield in evaluating the testi- mony of Mrs. Kinderlehrer and Chenault concerning the events surrounding Chenault's termination, discussed be- low in section III, C. Finally, the conflict in testimony be- tween Mrs. Kinderlehrer and Schatz, the Respondents' former administrator, casts further doubt on Mrs. 21 Kinderlehrer's credibility. Mrs. Kinderlehrer claimed that when the employees returned to work following the demon- stration they entered as an unruly crowd which burst through the door. Contrary to this Schatz testified that they entered their duty stations in a normal way and were in no way disruptive. Accordingly, the foregoing recounting and evaluation of the testimony concerning the June 15 demonstration leads me to conclude that Mrs. Kinderlehrer was not a reliable witness and was prone to exaggeration and embel- lishment, and accordingly I do not credit her except where she is corroborated by other credited evidence. 2. The discharge of Jrvonne Sartor At the time of her discharge on June 15 Sartor had been employed by Garden of Eden as a nurses aid on the first shift (from 8 a.m. to 4:30 p.m.) for approximately 3 months. Sartor attended the union meetings on June 7 and 14 and participated in the demonstration on June 15. When the demonstration ended at approximately 9 a. in. Sartor joined those who were scheduled to go to work, but when she went to the Eden-Forest building to clock in she discovered that the timecards were missing. Sartor went to the kitchen to do her regular daily job, pouring coffee into cups and passing out trays. Sartor testified that Mrs. Kin- derlehrer was in the kitchen and told the girls that they could work if they wanted to but otherwise they were to get out. No one replied. At that time Mrs. Kinderlehrer was at the refrigerator. Mrs. Kinderlehrer then looked at Sartor and said that she was to get out because she was a ringlead- er. Sartor went to get her purse and Mrs. Kinderlehrer said, "I want to see your ass off my property." Mrs. Kinderlehrer said that if Sartor did not leave she would call the police. Sartor testified that she was upset and that Mrs. Kinderlehr- er "was yelling and screaming." Josephine Donan, the assistant cook, testified that after the demonstration she and others, including Sartor, re- turned to the kitchen. Donan recalled that Mrs. Kinderlehr- er pointed her finger at Sartor and stated, "you, especially you, get your things and get out." Donan testified that Sartor was not employed in the kitchen but as a nurses aid; it was her job to come into the kitchen to serve breakfast. At the time of her discharge, Sartor was working on getting the breakfast trays out. In her testimony concerning Sartor's discharge, Mrs. Kinderlehrer stated that she had heard screaming in a loud voice coming from a point in the hallway between the nurs- es' station and the chapel where tables had been set up for patients whose manner of eating upset other patients. Mrs. Kinderlehrer testified that she heard Sartor scream at a patient, "get it yourself." Mrs. Kinderlehrer stated that she went to investigate and asked Sartor if she was there to work or to order the patients about. Mrs. Kinderlehrer claimed that Sartoriust looked at her and did not move. When Mrs. Kinderlehrer repeated her question Sartor then shook her fist at Mrs. Kinderlehrer and said, "who are you, you rotten Jew, to tell me what to do?"5 Mrs. Kinderlehrer testified that 5In her testimony concerning both Sartor and Chenault, who are black, Mrs. Kinderlehrer claimed that the employees had made reference to Mrs. Continued 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she immediately discharged Sartor and said that she would call the police if Sartor did not leave immediately. Sartor denied that any patient asked for assistance in getting his breakfast that morning before she was dis- charged. As earlier noted I do not credit Mrs. Kinderlehrer in the absence of corroborating evidence. Such corroboration is missing in connection with Sartor's discharge. On the other hand, Sartor impressed me as a credible witness who was corroborated in significant part by the testimony of Donan. Accordingly, I find that Sartor was discharged as a consequence of her participation in the demonstration and her union activity, all in violation of Section 8(a)(3) of the Act. 3. Additional acts of interference, restraint, and coercion a. Mrs. Kinderlehrer and Marcus Coone Coone testified that after he participated in the June 15 demonstration he went into,the kitchen to work. Mrs. Kinderlehrer came to him and said to him that he did not have to work, he could get out. Coone replied that he would rather work and did not want to lose his job. Mrs. Kinder- lehrer repeated that he did not have to work, that he could leave right away. Coone kept working. Coone testified that Mrs. Kinderlehrer then went to Josephine Donan and told her the same thing. Mrs. Kinderlehrer testified that at the time she had called her husband asking him to contact the police she had also asked him to call an employment agency to get some help for the nursing home. Mrs. Kinderlehrer stated that a number of applicants reported to the nursing home some 15 minutes to a half an hour after the demonstration ended. It was after these applicants appeared, Mrs. Kinderlehrer tes- tified, that she had asked Coone whether he wanted to work or not because if not she had men who were looking for employment. Coone replied that he wanted to work, and Mrs. Kinderlehrer let the applicants go. Even crediting Mrs. Kinderlehrer on this occasion, the questioning of Coone as to whether he wanted to work following his participation in the demonstration with appli- cants for work present contained more than an implied threat that participation in protected concerted activity, such as the employee demonstration, would result in the loss of employment. I find that this constitutes a violation of Section 8(a)(1) of the Act. b. Mrs. Kinderlehrer and Josephine Donan Josephine Donan, assistant cook at Garden of Eden, signed a union card at the June 7 meeting and participated in the June 15 demonstration. Following the demonstration Donan reported for work in the kitchen. About 10 minutes after Mrs. Kinderlehrer discharged Kinderlehrer's ethnic origin, namely, that she is a Jew The credited evidence in this proceeding does not sustain a finding that there were any racial or religious considerations involved in the actions of any of the participants Rather the events herein arose from the employees' exercise of protected activities and the Respondents' reaction thereto. Sartor she returned to the kitchen and, Donan testified, came up to Donan and said that she had not had a chance to talk to Donan about the Union the other day and that she wanted to tell Donan, one more demonstration in the halls "and that's it." Mrs. Kinderlehrer told Donan that if she wanted to work she could but, if she did not, she could just pick herself up and leave.' Donan testified that about 12:15 p.m. Mrs. Kinderlehr- er came back carrying a pen and pad of paper m her hand. Mrs. Kinderlehrer told Donan that if she wanted to work she could; otherwise there was someone to replace her. Do- nan replied that she wanted to work. Donan recalled that Mrs. Kinderlehrer said the same thing to a number of other employees. Mrs. Kinderlehrer merely denied having had a conver- sation with Donan following Donan's reporting for work after the demonstration. Based on Donan's credible appearance while testifying, I credit her version of the events. I find that Mrs. Kinderleh- rer on two occasions on June 15 threatened Donan with discharge if she continued her participation in protected concerted activities. c. Bernard Schatz and Henry Heard Heard participated in the June 15 demonstration and went to work when it was over. Later that day, in the base- ment storeroom in Eden-Forest, Schatz, who was then the nursing home administrator, asked Heard if he thought the Union was a good idea. When Heard replied that he thought it was, Schatz commented that unions were not all that they were made out to be. Heard replied that it seemed good for poor people. At that time Heard was wearing a union but- ton. Schatz said that he thought that Heard should take the button off because Mrs. Kinderlehrer would not like to see him wearing a union button. Schatz denied having any conversation with Heard on June 15; he denied that he had been in the basement of Eden-Forest on that day or that he had ever had any con- versation with Heard about the Union or union buttons. While Schatz is no longer employed by the Respon- dents and appears to have no interest in the outcome of these proceedings, the conversation testified to by Heard is within the pattern of the Respondents' reaction to the Union's campaign to organize the employees of the Garden of Eden and Eden-Forest. Heard was in all respects a credi- table witness, presently employed by the Respondents and testifying against the interest of his employer. Accordingly, I find that on June 15 Schatz, administrator of both nursing homes, interrogated Heard concerning his union sympa- thies and required that Heard remove his union insignia. d. Mrs. Kinderlehrer and Henry Heard Heard testified that on June 15, sometime after his conversation with Schatz, Mrs. Kinderlehrer was passing through Eden-Forest and asked Heard if he wanted to work for the Union or for her. Heard replied that he had to work 6 Donan testified that Mrs Kinderlehrer had said the same thing to Mar- cus Coone r See fn 4, supra GARDEN OF EDEN NURSING HOME, INC. some place and wanted to work. Mrs. Kinderlehrer said that if he didn't want to work she had people to take his job and replace him. Mrs. Kinderlehrer also asked Heard to remove his union button . When Heard removed the button Mrs. Kinderlehrer smiled and walked away. Mrs. Kinderlehrer testified than on June 15 she did not notice whether Heard was wearing a union button and de- nied that she had asked him to remove such insignia. Based on my lack of faith in Mrs. Kinderlehrer's credi- bility based on her demeanor and the general unreliability of her testimony, I find that on June 15 Mrs . Kinderlehrer threatened Heard with loss of employment if he continued his union activity and required that he remove his union insignia. e. Mrs. Kinderlehrer and Catherine Hill Catherine Hill, employed as the laundry girl in Eden- Forest, participated in the June 15 demonstration . Hill testi- fied that on June 17 or 18 she had a conversation with Mrs. Kinderlehrer in the laundry room . Mrs. Kinderlehrer told Hill that if any union men gave her a union card she was not to take it from them. Hill testified that this was the only time that Mrs. Kinderlehrer came to the laundry room to talk to her. At the time of the conversation Hill was wearing a union button. Mrs. Kinderlehrer denied having any conversations with Hill about the Union after the June 15 demonstration. Assuming that Hill's version of this conversation is correct, I do not find that there was any violation of the Act involved in this transaction. C. The Discharge of Charley Mae Chenault 1. Chenault's status as an employee within the meaning of the Act Charley Mae Chenault, a graduate licensed practical nurse, started working at Garden of Eden in July 1970. When first employed Chenault relieved at both Garden of Eden and Eden-Forest, working at each home two nights per week. However, at the time of her termination , she was working three nights a week at Eden-Forest and was not putting in any time at Garden of Eden . This arrangement had been in effect for 3 months prior to her discharge. Chenault testified that as the practical nurse on the third shift which started at midnight she would make the rounds of the patients , checking on their condition, chang- ing those who were wet, and attending to other needs. She also checked the medication prescribed for the patients to see if there had been any changes made , checked over the report from the previous shift on the patients' condition, set up the medication for the patients , and charted the patients' records . All this was done while attending to patients' needs as they arose. Chenault was paid an hourly rate and clocked in with a timecard. Chenault testified that in the course of her shift she did not assign jobs to the nurses aides, testifying that they knew what they had to do . Chenault stated that she could not hire or effectively recommend hiring and had not been told that she had the authority to do so. She could not fire or effectively recommend firing and testified that no 23 licensed practical nurse at Garden of Eden or Eden-Forest has ever done so. Further, she stated that she could not recommend the disciplining of an employee and had never been told that she had such authority. Chenault stated that she had no authority to assign overtime and that, at the time she had been hired by Mrs. Kinderlehrer, she had been told that if she arranged for an employee to work overtime she would have to pay such an employee herself. Chenault stat- ed that she did not have authority to order an employee to leave early nor could she grant permission should an em- ployee seek to leave before the end of her shift . As to calling in a replacement for an employee who did not report to work as scheduled, Chenault recalled that on one occasion, when an employee did not appear as scheduled, she had called a Mrs. Kissel, reported the situation , discussed with Mrs. Kissel possible people to call in, and had been given permission by Mrs. Kissel to call a replacement for the employee who was absent. When a nurses aide is unable to report for work, such employee would notify Mrs. Kinder- lehrer, Mrs. Toohey, or Schatz. If, in the course of her shift, Chenault determined that a patient should be transferred to a hospital, she was required to call either Mr. Kinderlehrer, Mrs. Kinderlehrer, or the registered nurse in charge of the home before notifying the patient's doctor. Under question- ing by Respondents' counsel the following question and answer arose: Q. [by Respondent's counsel] And if anything went amiss it was your duty to immediately call the director of nursing or the administrator? A. Yes. Chenault testified that there were no supervisors on duty during the third shift at Eden-Forest and if a nurses aide had refused to work she would have had to call Mrs. Kinderlehrer or Mrs. Toohey. However, this never hap- pened. Chenault stated that employees did not come to her when they wanted a raise in pay; she did not handle employ- ees' complaints ; and she was not consulted before employ- ees were discharged or disciplined. Marilyn May, another practical nurse employed by the Respondents, testified that when she had been hired by Mrs. Kinderlehrer she had been told her duties were to pass the medicines to the patients and to do the charts. Further, May testified that she was to see "that [the nurses aides] done their work, and you know, they done what they were sup- posed to do." May stated that she was not told that she had authority to hire or fire nor was she told that she had any authority regarding the discipline of employees . May testi- fied that she was not told anything about wage increases for employees and had never been asked for any recommenda- tion regarding such increases. In sum , May's responsibility is to see that patients get through her shift. Patient care is her "prime responsibility."8 Mrs. Kinderlehrer, in testifying about Chenault's du- ties, stated that Chenault "had power of firing employees if they wouldn't fulfill their duties." Mrs. Kinderlehrer stated that Chenault was in full charge from midnight to 8:30 a.m. and that no other supervisors were on duty during that shift. Based on Chenault's description of her duties and re- 8 This characterization of May's duties as a licensed practical nurse was that of Respondents' counsel during his examination of May. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponsibilities as the licensed practical nurse on the third shift,9 I find that Respondents' contention that Chenault is a supervisor fails of proof . Rather, I find that Chenault was at all times material herein an employee within the meaning of the Act and entitled to the protection of the Act. New Fern Restorium Co., 175 NLRB 871; Diversified Health Serv- ices, Inc. d/b/a Convalescent Center of Honolulu, 180 NLRB No. 26; Sherwood Enterprises, Inc., d/b/a Doctors' Hospital, 175 NLRB 354. 2. Chenault's discharge On August 9 Chenault attended the representation hearing held in the Board's Regional Office on the Union's petition for an election. During the hearing Chenault was with Garden of Eden employees, the union representative, and the Union's lawyer.) Chenault was not scheduled to work the night of Au- gust 9 and her next regularly scheduled shift was to be on August 11. About midnight on August 9, Chenault received a telephone call from Frances Gooding, a nurses aide. Gooding advised Chenault that her name had been scratched off the timesheet and that Chenault's timecard was missing from the rack next to the timeclock. Chenault said that she would report for work on Wednesday night as scheduled.I I When Chenault reported for work Wednesday night, August 11, and discovered that her timecard was not in the rack, she called Mrs. Kinderlehrer at the latter's home and asked about the missing timecard. Chenault testified that Mrs. Kinderlehrer replied "they said you were going to quit." Chenault asked who they were and Mrs. Kinderlehrer replied the patients. Chenault then said that the patients did not hire and could not fire and that when she was ready to quit she would notify Mrs. Kinderlehrer. Chenault then asked if Mrs. Kinderlehrer could have her paycheck ready in the morning. Mrs. Kinderlehrer denied that Chenault had any money coming and Chenault insisted that she was owed for 3 days. When Mrs. Kinderlehrer told Chenault to pick up the check at the Golden Age Nursing Home, Chenault demurred and Mrs. Kinderlehrer agreed that the check would be at Garden of Eden, but asked Chenault to leave the nursing home at that time. During the course of the conversation there was discussion between Mrs. Kinderleh- rer and Chenault concerning Hitler's persecution of Jews and the historic persecution of Negroes.12 In addition, Mrs. Kinderlehrer brought up the fact that Chenault had left early some mornings. To this, Chenault pointed out that this had been an agreed-to procedure from the time she started working for the Respondents because her full-time duties at the General Hospital required her to be on duty at the hospital before the end of the third shift at the nursing 9 I credit Chenault's testimony in all respects. 10 Chenault's participation in the June 15 union demonstration is set forth above in the section entitled "The Events of June 15." As well, the Respon- dents' effort to establish that Chenault had been on duty at the time of that demonstration and the failure of such effort is detailed in that same section. Josephine Donan testified that after the June 15 demonstration, while in the kitchen, she overheard Mrs. Kinderlehrer say to Mrs. Satzger, "guess who my spokesman is around here, Mrs. Chenault" 11 Frances Gooding corroborated Chenault's testimony on this point. 12 See fn. 5, supra. home. During the course of her testimony Chenault denied ever having told any patients that she was quitting her em- ployment with the Respondents. Chenault explained that she had called Mrs. Kinderlehrer on August 11 rather than Mrs. Toohey, her supervisor at Eden-Forest, because it had been Mrs. Kinderlehrer who had hired her initially. Mrs. Kmderlehrer testified Chenault had been as- signed to work on the third shift at Eden-Forest on August 7 and 8. However, there were complaints from patients that they had not received their medications or any care at all during those nights. Mrs. Kinderlehrer claimed to have come to Eden-Forest on Sunday at 7 a.m. but could not locate Mrs. Chenault there. At that time patients told Mrs. Kinderlehrer that for the second night they had not received medication. Mrs. Kinderlehrer then checked the record and there were no chart entries that medication had been admin- istered. Mrs. Kinderlehrer stated that she talked to Mrs. Toohey, the nursing director at Eden-Forest, to see what could be done and tried to reach Chenault all that day without success. Thereafter, she looked for a graduate li- censed practical nurse to take over the third-shift duties at Eden-Forest. Mrs. Kinderlehrer testified that the decision to discharge Chenault was made after she did not perform her duties on August S. On Wednesday, August 11, Che- nault was replaced.13 Mrs. Kinderlehrer testified that Chenault called her at home on Wednesday, August 11, to say that she was at Eden-Forest ready to work. Mrs. Kinderlehrer replied that after not having been there, not having given medication, and not charting, Chenault was not to go to work. Mrs. Kinderlehrer told Chenault that she had been replaced. Ac- cording to Mrs. Kinderlehrer, Chenault then started screaming, saying that Hitler had persecuted six million Jews and that she was sorry that he had left Mrs. Kinderleh- rer alive and that whatever Hitler didn't finish Chenault would. Mrs. Kinderlehrer repeated that Chenault had to go and that she was calling the police. With that the conversa- tion ended. Mrs. Kinderlehrer went on to say that Chenault called her the following morning at Garden of Eden to say that she had better have a check and that she would be there that afternoon to pick it up. Mrs. Kinderlehrer said she had no way of knowing if Chenault had been at work because she had not charted and had not given the patients their medication. Chenault then said that if she was not paid for the 3 days she would "beat up" Mrs. Kinderlehrer. Mrs. Kinderlehrer testified that it was decided to give Chenault the check to avoid a commotion. About 4 p.m. Mrs. Che- nault knocked on Mrs. Kinderlehrer's door and Mrs. Kin- derlehrer handed her an envelope with her check. Then, standing close to Mrs. Kinderlehrer' s face, Chenault alleg- edly repeated that she was sorry that Hitler didn't get Mrs. Kinderlehrer and that if she had a bottle of poison she would splash it in Mrs. Kinderlehrer's eyes. According to Mrs. Kinderlehrer, Chenault's last words were "well, who would like to be a graduate licensed practical nurse. I am now a well paid organizer." Chenault testified that she is not a member of the Un- 13 During the course of the hearing Respondents' counsel stated, "Up to the time that she reported, it is Respondent's position that nothing had been done to terminate Mrs. Chenault." GARDEN OF EDEN NURSING HOME, INC. ion and has never worked for a union, part time or full time. Chenault claimed that when she picked up her last paycheck there was no reference in her conversation with Mrs. Kin- derlehrer to the Union. As to Mrs. Kinderlehrer's charge that Chenault had engaged in an anti-Semitic outburst, Chenault testified that it had been Mrs. Kinderlehrer who brought up the subject of Hitler's persecution of the Jews, to which Chenault had replied she was not persecuting Mrs. Kinderlehrer, noted that Negroes had also been persecuted, and stated that she was only concerned with Mrs. Kinderlehrer, herself, and the job. Chenault acknowledged that there were occasions when she did not note the medication given on a patient's chart if she ran out of time. She testified that the patients' medications were routine and seldom changed and that the chart notations could be made the following night. Chenault demonstrated a remarkable ability to recall the exact me- dication prescribed for each of the patients under her care during the time she had been the practical nurse on duty at Eden-Forest, months before the hearing. Further, Chenault claimed that during her conversation with Mrs. Kinderlehr- er on the night of August l l there was no mention made of Chenault's failure to make notations on the patients' charts. As earlier noted, Chenault attended the representation hearing on August 9. Mrs. Kinderlehrer testified that she had also attended the hearing and had seen Chenault there. The hearing lasted most of the day. Mrs. Kinderlehrer was asked why she did not take the occasion of Chenault's and her own presence at the representation hearing on August 9 to advise Chenault that she was discharged.14 To this Mrs. Kinderlehrer replied, "because she discharged herself." I conclude from the evidence set forth that the decision to discharge Chenault was made not on August 8 as testified to by Mrs. Kinderlehrer, but rather the discharge was effec- tuated on August 9 following Chenault's presence at the representation hearing in the company of the union repre- sentatives and attorney. Respondents' effort to establish Chenault's failure to properly perform her duties on August 7 and 8 is supported only by Mrs. Kinderlehrer's testimony. In that testimony Mrs. Kinderlehrer stated that she had consulted with Mrs. Toohey concerning what should be done about Chenault. I note that Mrs. Toohey was not called to testify. As with so many of the allegations involved in this proceeding, resolution boils down to a choice between the versions offered by each of two participants in a trans- action. As earlier noted, I found Mrs. Kinderlehrer to be a totally unconvincing witness. However, as to certain aspects of the case involving Chenault's discharge there is corrobo- rating evidence to support Chenault's version, though not in the critical area of the conversations between Chenault and Mrs. Kmderlehrer and the asserted reasons offered by Mrs. Kinderlehrer for Chenault's discharge. Thus, Marilyn May gave convincing support to Chenault's description of her duties as a practical nurse whereas Mrs. Kinderlehrer's at- tempt to establish Chenault's status as a supervisor was totally unsupported by any corroborating evidence. Fur- 14 As noted Mrs Kinderlehrer testified that the decision to discharge Che- nault had been made on August 8 25 ther, the attempt by Respondents to establish that Chenault had participated in the June 15 union demonstration and as a consequence had abandoned her professional duties to her patients was undermined by Respondents' own business record; namely, Chenault's timecard. Accordingly, I con- clude that Chenault's discharge was not occasioned by any failure on her part to perform her duties as the licensed practical nurse on the third shift at Eden-Forest but rather was brought about by her participation at the representa- tion hearing with the union representatives. Such action on the Respondents' part was of a piece with its conduct fol- lowing the onset of the Union's campaign to organize its employees. Since participation in the Board's processes in seeking to determine employee representation is protected by Section 7 of the Act, Respondents' discharge of Chenault violated Section 8(a)(3) and (1). IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with their operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondents engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents unlawfully dis- charged Jrvonne Sartor and Charley Mae Chenault, I shall recommend that Respondents be ordered to offer to the employees named immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings suffered as a result of Respondents' unlawful conduct. Backpay shall be computed in the man- ner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices in which the Respondents en- gaged, 15 that it cease and desist from infringing in any man- ner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Garden of Eden Nursing Home, Inc., and Eden- Forest Nursing & Rest Home, Inc., are jointly and severally employers engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. National Union of Hospital & Nursing Home Em- 15 See N.L.R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A. 4). 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in certain described conduct referred to herein above in section III, A, B, C, hereof, Respondents interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them in Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By engaging in conduct described in section III, B 2, and C, hereof, Respondents discriminated against Jrvon- ne Sartor and Charley Mae Chenault in regard to the terms and conditions of their employment in order to discourage activities protected by Section 7 of the Act, and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect 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:16 ORDER The Respondents, Garden of Eden Nursing Home, Inc., and Eden-Forest Nursing & Rest Home, Inc., jointly and severally, and their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the activities on behalf of the National Union of Hospital and Nursing Home Em- ployees, Local 1199H , Retail, Wholesale and Department Store Union, AFL-CIO, by discriminating in regard to the hire and tenure of employment of Respondents ' employees in order to discourage membership. (b) Interrogating employees concerning their own un- ion activities or the activities of other employees ; creating the impression of surveillance of protected concerted activi- ty and union activity; threatening loss of employment if employees engage in protected concerted activity; threaten- ing loss of benefit if employees engage in protected concert- ed activity or if the Union is successful in organizing the Respondents' employees ; and unlawfully restricting the ex- ercise of protected concerted activities on the Respondents' premises. (c) In any other matter interfering with , restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Jrvonne Sartor and Charley Mae Chenault immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of pay they may have suffered as a result of their discharge in the man- ner set forth in "The Remedy" section hereof. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement , upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at their Cincinnati, Ohio, facilities copies of the attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondents' authorized repre- sentative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing within 20 days from the date of the receipt of this Deci- sion, what steps the Respondents have taken to comply herewith.i8 14 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 17 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " is 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 9, in writing, within 20 days from the date of this Order, what steps the Respondents have 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 discharge employees because they en- gage in union activities or to discourage other employ- ees from engaging in union activities. WE WILL NOT question employees about their own union activities or the union activities of other employ- ees. WE WILL NOT create the impression that we are spying on the union activities of our employees. WE WILL NOT threaten employees with loss of their jobs if they participate in union activities. WE WILL NOT threaten employees that they will lose any of their benefits if they engage in union activities or if the Union organizes our employees. GARDEN OF EDEN NURSING HOME, INC. WE WILL NOT unlawfully restrict our employees in their exercise of their right to engage in union activities on the premises of the nursing homes. WE WILL NOT in any other manner interfere with the rights of our employees under the law to engage in union activity or other concerted activity or to refrain from such activity or force them to give up any of their rights under the law. WE WILL offer to Jrvonne Sartor and Charley Mae Chenault immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make Jrvonne Sartor and Charley Mae Chenault whole for any loss of pay they may have suffered as a result of the discrimination against them with interest at 6 percent added thereto. You are all free to become or remain members of Na- tional Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Un- ion, AFL-CIO, or any other labor organization, or to re- fram from doing so, and we won't punish you in any way if you do. Dated By 27 GARDEN OF EDEN NURSING HOME, INC, AND/OR EDEN-FOREST NURSING & REST HOME, INC (Employer) (Representative) (Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Federal Office Building, Room 2407, 550 Main Street, Cin- cinnati, Ohio 45202, Telephone 513-684-36.