Extendicare of Kentucky, Inc.

EXTENDICARE OF KENTUCKY, INC. 395 Extendicare of Kentucky, Inc. and Service Employees' International Union, AFL-CIO, Local 557. Case 9- CA-6689 September 29, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 25, 1972, Trial Examiner Sidney Sher- man issued the attached Decision in this proceeding. Thereafter, the Charging Party and counsel for the General Counsel filed exceptions and supporting briefs, and Respondent filed cross-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 reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-excep- tions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner subject to the modifications set forth below: 1. We find, in agreement with the Trial Examin- er, that the Respondent violated Section 8(a)(1) of the Act by: (a) Interrogation of employee Simmons on or about December 23; 1971, by Respondent Supervisor Wise concerning the union activities or sentiments of Simmons and other employees. (b) Maintenance of an unlawfully broad rule for- bidding solicitation by employees on behalf of a un- ion on company premises during nonworktime and forbidding employees to distribute union literature in nonwork area during nonworktime. 2. We also agree with, and adopt, the Trial Examiner's finding that Respondent violated Section 8(a)(1) and (3) of the Act by imposing on employees Simmons and Doyle more onerous work assignments because of their union activity. 3. The Trial Examiner concluded there was insuf- ficient evidence of discrimination against Doyle with respect to her termination to warrant an 8(a)(1), (3), and (4) finding. Although we accept the Trial Examiner's credibility and fact findings, we find merit in the General Counsel's and Charging Party's excep- tions to this conclusion insofar as the 8(a)(1) and (3) allegation is concerned.' i We deem it unnecessary to consider the 8(a)(4) allegation as it cannot affect the remedy herein The facts are fully set forth by the Trial Examin- er. Doyle, a known union adherent who had previous- ly been assigned more onerous work duties because of her union activity, was granted a leave of absence for medical reasons that was to commence October 12, 1971.2 Due to a worsening of her medical problem, Doyle did not work after October 5. Without notify- ing her, Respondent changed the starting date of her leave of absence to October 5. Doyle, who believed her leave of absence expired December 12, 1971, received a telephone call at home. from Supervisor Wise, while recuperating, about the middle of November. Wise, who called from work, asked Doyle about the progress of her recovery and when she could return. Doyle replied that she had to see her doctor again in the first week of December and asked Wise if there were any more papers she had to fill out concerning her leave of absence. Wise replied that she did not know of any and asked Doyle when her leave expired. Doyle replied that her leave ended December 12 and asked if there was any reason she should report to work earlier than that. Wise, who had recently been on a medical leave of absence herself, responded that she did not know any reason for it. Doyle then asked if Food Services Manager Henry, the head of the department in which both she and Wise worked, was there. Wise said that she was not but that she would check with Henry and if, for any reason, Doyle had to come to work before December 12, Wise would contact and tell her. Doyle reported to work on December 9 and was told by Wise to return on the 13th and speak to Hen- ry, who was then out of town. Doyle returned on the 13th and was told by Henry that she had been termi- nated because her leave had expired on December 5, as a result of its starting date having been changed from the 12th to the 5th of October. In our view, Respondent, in light of the state- ments made by Supervisor Wise when she called Doyle in mid-November, was obligated to notify Doyle if the expiration date of her leave of absence was earlier than December 12. The only evidence of any attempt on Respondent's part to so notify Doyle was Henry's self-serving testimony that she tele- phoned but was unable to reach, Doyle shortly before her leave expired. This can hardly be characterized as a reasonable attempt to notify, much less as notifac- tion. In addition, it is noted that the Trial Examiner did not find Henry to be a very credible witness. In view of Doyle's known union activities and sympathies; the earlier unlawful discrimination prac- ticed against her by Respondent; the issuance of our Decision and Direction of Election 3 relating to the 2 Unless otherwise noted all dates mentioned herein refer to 1971. Extendicare, Inc., d/b/a St Joseph Infirmary, 194 NLRB No. 51, issued on December 3, 1971 199 NLRB No. 47 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign in which Doyle had been active on behalf of the Charging Party, which would necessarily reinvi- gorate that campaign as a prelude to the election therein directed; the other unfair labor practices found herein; and the animus and unfair labor prac- tices found in an earlier proceeding 4 which took place during the same organizational campaign and in- volved employees in the same bargaining unit, we believe the inference is clearly warranted that Wise and Henry's failure to notify Doyle of the change in her leave expiration date was based on her union activities. As both of these individuals are supervisors within the meaning of the Act, their failure is attrib- utable to Respondent. In view of this failure, the role played by Coffey, Respondent's personnel director, in the decision to discharge Doyle was not material. Cf. Sears, Roebuck and Co., 172 NLRB No. 246. It is clear that Doyle determined the date she sought to return to work and scheduled an appoint- ment with her physician upon her belief that her leave did not expire until December 12. There is no reason to believe that she could not have scheduled her medi- cal examination several days earlier 5 and received the same medical clearance had she been notified of the change. Therefore, we find upon the facts set forth above and the entire record herein that Respondent discriminatorily terminated Doyle in violation of Sec- tion 8(a)(1) and (3) of the Act.6 Accordingly, we shall order that Respondent of- fer Rita Doyle immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, and make her whole by payment of a sum equal to that which she normally would have earned from the date of discrimination to the date of offer of reinstatement, less her net earnings during that period. The backpay provided herein shall be computed in accordance with our formula set forth in F. W Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. 4 Extendicare, Inc., Case 9-CA-6478, TXD-114-72, issued on February 29, 1972, and, in the absence of exceptions, adopted by Board order on March 29, 1972 (not printed in NLRB volumes). The respondent in that case was the instant Respondent's parent and the employees involved worked at the same location and were participating in the same organizational cam- paign as the employees in the instant case. Violations of Sec. 8(a)(1) and (3) were found which involved the surveillance, harassment, reprimand, and suspension of an employee union adherent Animus toward the Union was further evidenced by a series of notices posted on the employee bulletin board which bluntly expressed strong opposition to the Union 5 Doyle was examined by her physician on December 8. 6 In view of our decision herein , we need not reach the question of whether Doyle was treated disparately in being refused reemployment on or after December 13 and whether there were any job openings as these would be relevant only if we were to find that she was properly terminated as of December 6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as it Order the recommended Or- der of the Trial Examiner as modified below and hereby orders that the Respondent, Extendicare of Kentucky, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Insert the following paragraph and reletter para- graphs 1(a), (b), (c), and (d) as 1(b), (c), (d), and (e): "(a) Terminating Rita Doyle or any other em- ployee or otherwise discriminating aginst any employ- ee in regard to their hire or tenure of employment, in order to discourage membership in or activity on be- half of Service Employees' international Union, AFL-CIO, Local 557, or any other labor organiza- tion." 2. Insert the following paragraph and reletter paragraphs 2(a) and (b) as 2(b) and (c): "(a) Offer Rita Doyle immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privi- leges, and make her whole for any loss of earnings in the manner prescribed in this Decision." 3. Substitute the attached notice for the Trial Examiner's notice. MEMBER KENNEDY, concurring in part and dissenting in part: While I accept my colleagues' adoption of the Trial Examiner's findings of 8(a)(3) and (1) violations, I do not agree with their reversal of the Trial Examiner's findings that Respondent did not discrim- inatorily terminate employee Doyle. The issue is whether Respondent discharged Doyle for overstaying her sick leave or for discrimina- tory reasons. In reversing the Trial Examiner my col- leagues appear to have overlooked or slighted several very critical findings of the Trial Examiner. For exam- ple, the Trial Examiner credited Coffey, Respondent's personnel director, who testified that he made the decision to terminate Doyle, that he was influenced solely by Doyle's record of absenteeism and tardiness, and that notwithstanding her termination he would have rehired her when she returned if there had been any suitable opening for her, but there was none. This credited testimony would seem to dispose of the alle- gation that Doyle was terminated for discriminatory reasons. But the Trial Examiner also examined the question of whether the circumstantial evidence pointed to a discriminatory discharge. In this connec- tion, the Trial Examiner took into consideration the facts that Respondent was aware of Doyle's union EXTENDICARE OF KENTUCKY, INC. 397 activity and that it was hostile to the Union. Never- theless, he concluded that the evidence was not suffi- cient to support a finding of discrimination. He pointed out that in August, despite its knowledge of Doyle's union activity, Respondent promised Doyle a wage increase. He also credited Henry's testimony that she tried to reach Doyle on the telephone before the latter's leave expired to inform her of the earlier leave expiration date but had been unsuccessful. In addition, he stressed that there was no evidence that Doyle would have been able to return to work on December 6, even if she had known that her leave would end on that date because her own testimony was that her doctor did not discharge her until De- cember 8, with the caveat that she refrain from heavy lifting.? The Trial Examiner further held that Doyle was not treated in a disparate manner. Respondent's sick leave rule required the termination of any employ- ee overstaying such leave and there was no evidence that Respondent had waived the rule for any other employee under comparable circumstances. Finally, the Trial Examiner found that the General Counsel had not shown that in failing to rehire Doyle on and after December 13, Respondent treated Doyle differ- ently from other employees. From December 1, Re- spondent had no opening of any kind in the dietary department where Doyle had formerly worked. The majority has, sua sponte, suggested a theory of violation not urged by the General Counsel and therefore not discussed by the Trial Examiner, in rev- ersing the Trial Examiner's finding that Personnel Di- rector Coffey acted for nondiscriminatory reasons in terminating Doyle. The scenario for this theory ap- pears to be as follows: Respondent was hostile to the Union, Supervisors Wise and Henry were hostile to Doyle because of her activity in behalf of the Union, Wise and Henry failed to give Doyle timely notice of the change in her leave time because of this hostility to Doyle, therefore the fact that Coffey was innocent- ly motivated in discharging Doyle was immaterial to a finding of discriminatory discharge, citing Sears, Roebuck and Co., 172 NLRB No. 246. There are serious factual weaknesses in this theo- ry. First, Respondent was found guilty in an earlier proceeding of having discriminatorily reprimanded and then suspended a maintenance employee for 3 days without pay. In the present case, the Trial Exam- iner found only the following unfair labor practices: an unlawfully broad no-solicitation rule which was 7 The majority decision states. "There is no reason to believe that she could not have scheduled her medical examination several days earlier [than De- cember 8]." There is absolutely no evidence to support the inference which this statement seeks to convey-that Doyle could have been discharged by her doctor before December 8. If this was a fact, it was within Doyle's knowlege and the General Counsel should have introduced probative evi- dence thereof. however voluntarily recinded by Respondent; a single query of an employee, not Doyle, by Supervisor Wise as to the former's "opinion about this voting"; and the assignment of more onerous duties to two employees, one of whom was Doyle. However, the Trial Examin- er characterized the extra assignment to Doyle as "rather petty." The sum total of this evidence hardly justifies an inference that Respondent had a proclivity to discriminate against employees for unlawful rea- sons. Second, a principal is responsible for the antiun- ion conduct of its agent on the basis of respondeat superior, but an agent is not responsible for the con- duct of his principal or of fellow agents. Neither Wise nor Henry was found guilty of unfair labor practices in the earlier proceeding. No attribution of animus against Wise and Henry can therefore be made on the basis of the decision in that case. Wise was involved in the single borderline instance of interrogation in this proceeding. As aginst this, Wise had promised Doyle a wage increase in August despite her knowl- edge of Doyle's union activity. The record is unclear as to whether either Wise or Henry was responsible for the assignment of additional duties to employees Simmons and Doyle. The sum of the evidence thus shows no significant animus either toward unions or Doyle by Wise and Henry. Third, the majority states that in view of the statements made by Wise to Doyle in mid-November, Respondent was "obligated" to notify Doyle if the expiration date of her leave was earlier than December 12. I do not know how the majority reaches this "obligation" conclusion from the facts set forth. Perhaps if the Board were sitting as an arbitration panel the finding of obligation would be justified. But the Board's sole determination must be not whether Henry should have taken additional steps to notify Doyle of her leave expiration date, but whether the action she did take or omitted to take showed discriminatory motivation toward Doyle. If the General Counsel had been able to show that Hen- ry had treated Doyle in a disparate manner in regard to further calls, that would be some evidence of illegal motivation. But he has not shown this. Wise did com- municate Doyle's November query to Henry. And the latter, according to her credited testimony, did try, although unsuccessfully, to reach Doyle by telephone before her leave expired.' Perhaps Henry should have 8 The majority is uncomfortable with this credibility finding of the Trial Examiner Although unwilling to overturn the finding, the majority attempts to minimize Henry's testimony with the statement that the Trial Examiner "did not find Henry to be a very credible witness." But the Trial Examiner did find that this part of Henry's testimony was credible He stated: "While Henry was not in general an impressive witness, there was no contradiction of her testimony that she did attempt to reach Doyle and there was nothing inherently improbable in such testimony nor any circumstantial evidence that would warrant rejecting it." It is not uncommon for a trier of facts to credit in part and discredit in part the same witness . Colonial Shirt Corpora- tion, 96 NLRB 711; Elgin Standard Brick Manufacturing Company, 90 NLRB 1467. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made further efforts to communicate with Doyle. On the other hand, it can as well be argued that since Doyle was uncertain about when her leave expired, she should not have been content with a single tele- phone call from Wise, but should have persisted in her efforts at clarification until she received either written or oral assurance as to the terminal date of her sick leave. Thus, if we are going to apportion blame, Doyle would seem to have been as responsible as Henry for failure to timely clarify the date when Doyle's sick leave ended. In any event, the evidence does not jus- tify the inference that it was because of Doyle's union activities that Henry did not make further attempts to get in touch with Doyle. The Trial Examiner made a very careful analysis of all the evidence in reaching his conclusion that Re- spondent had not discriminated against Doyle. I think his analysis sound and his conclusion justified. I would therefore adopt his findings and recommenda- tions. APPENDIX exercise of the right to self-organization, to form labor organizations, to join or assist the above- named Union, or any other labor organization, to bargain collectively, through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or portection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All of our employees are free to become or remain, or to refrain from becoming or remain- ing, members of the above-named Union or any other labor organization. Dated By NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL offer Rita Doyle immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings in the manner prescribed by the Board. WE WILL NOT discriminate against any of our employees by terminating them, or by giving them harder and more difficult work assign- ments, because of their interest in or activities on behalf of Service Employees' International Un- ion, AFL-CIO, Local 557, or any other union. WE WILL NOT unlawfully question employees about their union activities or sentiments or those of other employees. WE WILL NOT maintain any rules forbidding employees to solicit for unions during nonworking time or forbidding them to distribute union litera- ture during nonworking time in nonwork areas. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the EXTENDICARE OF KENTUCKY, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The charge herein was served upon Extendicare of Kentucky, Inc.,' herein called the Respondent, on December 23, 1971,2 the com- plaint issued on January 31, 1971, and the case was heard on March 21 and 22, 1972. The issues litigated related to alleged violations of Section 8(a)(1) and (3) of the Act. After the hearing briefs were filed by the General Counsel and Respondent. Upon the entire record,3 including observation of the witnesses' demeanor, the following findings and conclu- sions are adopted: I RESPONDENTS COMMERCE Extendicare of Kentucky, Inc., herein called Respon- dent, is a Kentucky corporation, engaged in the operation of a proprietary hospital known as St. Joseph Infirmary. It was agreed at the hearing that Respondent is receiving gross 'Respondent's name appears as amended at the hearing. 2 All dates hereinafter are in 1971, unless otherwise indicated. 3 For corrections of the transcript and certain rulings, see the order of May 1, 1972. EXTENDICARE OF KENTUCKY, INC. 399 revenues at an annual rate of more than $250,000 and that its annual rate of out-of-state purchases exceeds $50,000. Respondent is engaged in commerce under the Act. II. THE UNION Service Employees' International Union, AFL-CIO, Local 557, hereinafter called the Union, is a labor organiza- tion under the Act. III THE MERITS The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)(1) by pro- mulgating, enforcing, and maintaining an unlawful no-so- licitation and no-distribution rule and by interrogation of an employee. 2. Whether Respondent violated Section 8(a)(3) and (1) by assigning more arduous duties to Doyle and Simmons because of their union activities. 3. Whether Respondent discharged Doyle because of her union activity and because she gave testimony at a Board hearing? A. Sequence of Events Respondent operates a number of hospitals within the State of Kentucky, including the one here involved, which is known as St. Joseph Infirmary,4 hereinafter called St. Joseph. A campaign to organize, inter alia, the dietary em- ployees of St. Joseph's was launched by the Union in Feb- ruary 1971. A union meeting held at that time was attended by, among others, Simmons and Doyle. Thereafter Doyle solicited other employees on behalf of the Union. A hearing on a petition for an election filed by the Union was held about April 1 and was attended by Doyle as a witness for the Union. On October 4, she arranged with Henry for leave be- cause of impending surgery and, on October 8, was admit- ted to a hospital for that purpose. On December 7, she was terminated for overstaying her leave and has not been re- hired. For some time prior to January 22, 1972, a handbook distributed to employees at St. Joseph contained a rule for- bidding solicitation or distribution for any purpose on com- pany premises. On January 22, 1972, the rule was amended to omit such prohibition. B. Discussion 1. The no-solicitation rule It was stipulated that between August 31, 1971,5 and January 22, 1972, a personnel manual distributed by Re- spondent to its employees contained the following rules: Solicitation or distribution for any purpose by any per- son is not allowed on the premises of the infirmary. This hospital had been separately incorporated under the name of St. Joseph Infirmary, Inc., until August 31, 1971, when it became an unincorpo- rated division of Respondent. 5 This date was selected because it was then'that Respondent was incorpo- rated and took over the operation of St. Joseph . The rules under considera- tion had apparently been promulgated long before that date , and there is no evidence or contention that they were not adopted until after the advent of the Union. Any employee found in violation of this rule is subject to immediate discharge. Any employee may be dismissed without notice for ... soliciting or distributing on the hospital premises for any purpose. It is clear that the foregoing rules were broad enough to interdict any union solicitation by employees on company premises during nonwork time and any distribution of union literature by employees during such time in nonwork areas. While such interdiction was rescinded when the rule was amended on January 22, 1972, it is found that while it was in effect the rule placed an unlawful restriction on union activity and that Respondent thereby violated Section 8(a)(1) of the Act. The fact that the rule has been amended does not obviate the need for a remedial order, there being no assurance that the former rule will not be reinstated. 2. Interrogation As already related, a petition for a Board election among the employees at St. Joseph was filed by the Union early in 1971. On December 3, the Board directed an elec- tion on that petition,6 which was held in February 1971. Simmons testified without contradiction, and it is found, that on December 23 Wise, an alleged supervisor, asked for her "opinion about this voting," evidently having reference to the impending election, and, when Simmons attempted to avoid the issue, Wise pressed her for an an- swer. Respondent's only defense here appears to be that Wise was not a statutory supervisor. However, apart from anything else, Wise's status as a statutory supervisor is es- tablished by the admission of Henry, an acknowledged stat- utory supervisor, that between 6:30 and 8 every morning, with respect to the 24 odd employees in the dietary depart- ment, Wise performs the same duties, and has the same authority, as Henry. It is, therefore, found that the foregoing interrogation was unlawful. 3. Discrimination in work assignments The complaint, as amended at the hearing, alleges, and the answer denies, that Respondent discriminatorily as- signed more onerous duties to Simmons from August 31 to mid-November and to Doyle from August 31 to December 31. There was no dispute that Respondent was well aware of Doyle's union activities, including her testifying for the Union at the Board hearing in April. As to Simmons the only evidence of knowledge by Respondent of her union activity consists in her uncontradicted testimony that at the union meeting attended by her in February she sat close to Carr, an alleged supervisor. Although Respondent disputed Carr's supervisory status, Henry conceded that Carr per- formed the same duties as Henry in directing the work of about 24 employees between 5 or 5:30 p.m. and 7 p.m. every day. It is therefore found that Carr was a statutory supervi- sor and her awareness of Simmons' attendance at the union meeting is chargeable to Respondent. Simmons testified that for about 5 or 6 months, begin- 6 Extendicare, Inc., 194 NLRB No. 51 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ping with the end of June, she was given an unusually heavy workload, there being added to the regular duties pertaining to her job certain tasks which, to her knowledge, no other employee had been required to do, including the prepara- tion of certain jellos for half an hour a day and carrying between-meal snacks to patients in their rooms, which made it extremely difficult for her to keep up with her regular assignments. Respondent offered no denial nor explanation of the conduct imputed to it by Simmons. The inference is therefore warranted that whatever Respondent's witnesses might have had to say about the matter would not have aided its case. Accordingly, it is found that Simmons was singled out for more onerous duties than other employees because of her apparent interest in the Union, as evinced by her attendance at the union meeting, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. Doyle testified that on several occasions in September, whilst she was assigned to operating a supply cart, she was given various chores in addition to her normal duties; that as a result she was hard pressed to keep abreast of her work; and that no other employees operating supply carts were required to perform such additional chores. Here, again, there was no denial nor explanation by Re- spondent of the conduct with which it was charged, and, while the harassment described by Doyle seems to have been rather petty, I am constrained to find, absent any denial or explana- tion, that she was singled out for such treatment because of her union activity and that Respondent thereby violated Section 8(a)(3) and (1)? 4. The discharge of Doyle Doyle had worked in the dietary department at St. Joseph since August 1968. It has been found above that she was a known union adherent, who testified in April for the Union in the representation case, and that in September she was sub- jected to discriminatory treatment in the matter of work as- signments. As related above, on October 4, she was granted "extended leave" because of an impending operation, and, on December 13, when she applied to Henry for reinstatement, she was notified of her discharge, allegedly for overstaying her leave. The General Counsel contends that the true reason for her discharge was her union activity. Respondent has a policy of granting 12 days' paid sick leave a year and, in addition, its employee manual contains the following provision for "extended" sick leave: In case of illness or injury when a permanent full time employee finds it necessary to request a leave of ab- sence after having used all of his sick hours and vaca- tion days, the hospital may grant up to a total of 60 days of extended sick leave. Following the last such extended sick leave day, the employee will be terminat- ed. Upon the employee's recovery and ability to return to work from such disability, as certified by his physi- cian, the Infirmary will make an earnest effort to place that employee in his previous position or another posi- tion in the hospital commensurate with his skills and qualifications, although it is not bound to do so. If the employee is rehired under these conditions, his prior service will be restored. This would seem to mean that an employee on extended sick leave is entitled to reinstatement in his former job, if he returns before his leave expires, but not if he overstays his leave, in which case he must wait for the first available open- ing.8 There was no dispute that on October 4, Doyle was ad- vised by her doctor to undergo surgery for an ulcer; that on the same day she discussed with Henry the matter of extended leave to cover the period of her hospitalization; and that it was agreed that such leave would start on October 12, it being contemplated that Doyle would continue to work for several days after October 4. However, due to illness Doyle was able to work thereafter only on October 5, and she entered the hospital on October 8. It was, also, not disputed, and it is found, that in mid- November, while Doyle was still recuperating, she received a call from Supervisor Wise; and that, after informing Wise that her leave would end on December 12,9 Doyle asked her to check with Henry as to whether Doyle had to report before that date for any reason, which Wise promised to do. On December 8, Doyle's doctor authorized her to return to work subject to the condition that she not lift any weight in excess of 15 pounds. The next day, when Doyle reported to Wise and advised her of the foregoing limitation on her capabilities, Wise told her to return on the 13th and speak to Henry, who was then out of town. On the 13th Doyle met with Wise and Henry and the latter told Doyle that she had already been terminated because her leave had expired on December 5, the starting date having been moved back to October 5, which was her last workday. Doyle testified that she protested to Henry that she had not been told of any change from the original understanding that her leave would start on October 12, and that Wise had promised to check with Henry and notify Doyle if there had been any change in the date of expiration of her leave; that, acknowl- edging that Wise had broached the matter to her, Henry said she had tried to call Doyle the preceding week but could not reach her; that, when Doyle continued to com- plain about the absence of any prior notice to her of the change in her leave penod, Henry retorted that she didn't like Doyle's attitude at the moment nor the attitude she had displayed "for several months before"; that, when Doyle asked for particulars, Henry explained that she was re- ferring to Doyle's absenteeism; that, when Doyle asserted that her absences were due to illness and asked how such absences could reflect on her attitude, Henry answered, "Well, you know what I mean," glancing at Wise, and both supervisors smiled; and that Henry then told Doyle she could appeal to Respondent's personnel office, which might reconsider its decision to terminate her, but, in view of Doyle's attitude, Henry would recommend against it. Doyle 8 This construction of the afore -quoted provisions is confirmed by Doyle's 7 Doyle also testified about being given extra duties "several times" during testimony concerning the explanation of the provisions given her by Henry, a 4-month period while assigned to the iced tea station. However, she did not which is discussed below. say that she was the only one assigned such extra duties, and her testimony 9 This presumably was based on Doyle's belief that she had been granted with regard to that matter was unclear in several other respects . Accordingly, 60 days' leave from October 12 to December 12. The basis for such belief no violation finding is based thereon is discussed below, at fn. 14. EXTENDICARE OF KENTUCKY, INC. 401 did not pursue the matter further. She has not been rehired. Although Henry's version of the interview differed in some respects from Doyle's, I credit the latter, because she impressed me as a more candid and forthright witness. Moreover, although Wise was admittedly present through- out the interview, she was not called to corroborate Henry. Coffey, Respondent's personnel director, testified, without contradiction, that Doyle was terminated as of De- cember 6; that such decision originated with him; that it was influenced solely by Doyle's record of absenteeism and tar- diness ; that, notwithstanding her termination, he would have rehired her when she returned if there had been a suitable opening for her; and that there was no opening of any kind in the dietary department at that time nor at any time thereafter. There was, moreover, no evidence that dur- ing that period there was a suitable opening for Doyle in any other department of the hospital. Before proceeding to an evaluation of the foregoing evidence, it may be in order to consider what the General Counsel's burden is here. Under Board case law, the Gener- al Counsel may establish discriminatory motivation for Doyle's discharge or for the failure to rehire her either (1) through direct evidence in the form of an out-of-court ad- mission by Respondent that it would have taken Doyle back but for her union activity or (2) through circumstances war- ranting an inference that her union activity was the true reason for the failure to reinstate or reemploy her. In a case such as as this such an inference would normally have to be supported, inter alia, by a sufficient showing that the failure to take Doyle back constituted disparate treatment. As to (1) above, the General Counsel cites Doyle's aforenoted testimony, which has been credited, that in her December 13 interview with Henry the latter declared that she did not like the attitude Doyle had displayed in the past and for that reason would not recommend that Doyle be rehired. However, even if it be assumed that Henry was here referring to Doyle's attitude toward the Union,10 that would fall short of an admission by Henry that she had already recommended that Doyle be terminated because of such attitude or that it had been a factor in the decision to termi- nate her. As already noted, Coffey testified that the decision to terminate Doyle originated with him and was based on her attendance record. While he acknowledged that he con- sulted Henry before implementing that decision, he denied that she made 'any reference to Doyle's attitude, insisting that the substance of her comments was that, while Doyle was an excellent worker, she had for 2 years been chronical- ly tardy and absent due to illness and other causes. As to any discussion between Henry and Coffey about Doyle after she tried to return, the record contains only Henry's testimony that, a day or so after December 13, she called to Coffey's attention the medical restriction on Doyle's lifting activity. In any event, any adverse recommendation that Henry may have made on that occasion could have played no effective role in the decision not to rehire Doyle after her termination, if one accepts the aforenoted testimony of Cof- fey that there had been no suitable opening for her since such termination. As that testimony was not disputed, and 10 As already related, according to Doyle, Henry explained that she had in mind only Doyle's absenteeism no other reason appears for rejecting it, it is credited. Accordingly, even if it be found that Henry impliedly threatened on December 13 that she would recommend against Doyle's rehire because of her union activity, there is insufficient basis in the record for finding either that she carried out her threat or that any adverse recommendation she might have made on or after December 13 was a factor in the decision not to take Doyle back. And, even if it be inferred from Henry's foregoing remarks that she had al- ready recommended to Coffey that Doyle be terminated, and that such recommendation was inspired by Doyle's union activity, such inference must be weighed against Coffey's aforenoted, uncontradicted testimony that all he discussed with Henry on or before December 6 was Doyle's performance and that her poor attendance record was the only reason for his decision to terminate her. As will appear from the discussion of Doyle's attendance record, below, Coffey's foregoing explanation of his action does not seem implausible. Thus, all things considered, I do not regard any inference to be drawn from Henry's remarks as sufficiently cogent to prove a discriminatory motive for the decision to terminate Doyle on December 6. As for circumstantial evidence of discrimination against Doyle on or after December 6, it is conceded that Respondent was then well aware of Doyle's union activity, including her testimony for the Union in April, and that about December 13, Respondent learned that a Board elec- tion on the Union's petition had been scheduled for Decem- ber 29.11 Moreover, Respondent's union animus is amply demonstrated by the findings heretofore made, including the discrimination against Doyle with regard to work as- signments.12 However, as against this, it should be noted that in August at a time when Doyle's union activity was already known to Respondent, she was promised a wage increase by Wise. There remains to be considered what evidence there is on the crucial issue whether Respondent's refusal to take Doyle back constituted disparate treatment. On that score, there must be considered initially the matter of the sufficien- cy of the notice given Doyle of the actual date of expiration of her extended leave. While the record does not show this, it seems proper to infer that Respondent would normally make a reasonable effort to advise an employee in Doyle's situation of the date that she would have to return from an extended leave or forfeit her job rights. With regard to that matter, the record contains the testimony of Doyle that on October 4, she was counseled by Henry to take 60 days' leave and, on the assumption that Doyle would work for several more days, it was agreed that her leave would run from October 12 to December 12. While the documentary evidence supports Henry's contrary testimony that on Octo- See Respondent's brief to the Trial Examiner at p. 2 Official notice is also taken of Trial Examiner Libbin 's Decision in Extendicare, Inc, Case 9-CA-6478, which issued on February 29, 1972, and, in the absence of exceptions, was adopted by an unpublished Board order on March 29, 1972. The respondent in that case was the instant Respondent's parent and the employees involved worked at St. Joseph. Violations of Sec 8(a)(1) and (3) were found based on events that occurred during the instant campaign to organize the employees of St Joseph . The 8(a)(3) violation consisted in suspension of one employee for 3 days and the 8(a)(1) violations involved surveillance of union activity . It should be noted, however, that none of the principal actors in the case at bar played any significant roles in that case, which involved mainly only maintenance department personnel 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 4 Doyle was initially granted leave only from October 12 to November 12, and such evidence shows further than on November 10, the starting date of her leave was moved back from October 12 to October 7,13 and the expiration date was extended from November 12, to December 6,14 it was conceded that no notice was given her of this action nor was she told that she was due to return on December 6. Moreover, notwithstanding Henry's denial, I credit Doyle's testimony that at the December 13 interview Henry ac- knowledged that she had been told by Wise of Doyle's request that she be notified, if there was any need for her to report before December 12. There remains to be consid- ered Henry's insistence at the December 13 interview, as well as at the hearing, that she tried to reach Doyle on the telephone before her leave expired but had been unsuccess- ful. While Henry was not in general an impressive witness, there was no contradiction of her testimony that she did attempt to reach Doyle and there was nothing inherently improbable in such testimony nor any circumstantial evi- dence that would warrant rejecting it.15 Accordingly, it is found that Henry did attempt to reach Doyle by telephone before her leave expired. It may be urged that Henry should have realized that the matter was of sufficient importance to Doyle to warrant resort to other, more reliable means of communication. However, the fact that Henry did make some effort to reach Doyle argues against any intent on her part to keep Doyle in the dark about the expiration date of her leave. There is, in any case, no evidence that Doyle would have been able to return on December 6, even if she had known that her leave would end on that date. Her own testimony was that her doctor did not discharge her until December 8 (with the caveat that she refrain from heavy lifting) and that pursuant to such discharge she reported on December 9. Thus, even if it be assumed that, for discrim- inatory reasons, she was kept in the dark about the fore- going change in her leave period, there would be insufficient basis for finding any casual relation between that circum- stance and her termination. 13 October 6 was the last day for which she was paid, she having ceased work on October 5, and used up the balance of her paid, sick leave on the 6th. Doyle's own testimony shows that the original date of October 12, for the inception of her leave was contingent upon her working on the 6th, 7th, and 8th, as well as the 5th, and there is insufficient basis in the record for inferring that the aforenoted substitution of October 7 for October 12 was due to any reason other than Doyle's failure to work on those 3 days. 14 The leave application signed by Doyle on October 4 shows that the initial grant of leave to her had a "tentative" expiration date of November 12. Although Doyle insisted at the hearing that on October 4 she was granted 60 days' leave, to begin on October 12, she did not unequivocally deny that the foregoing application had been completed in its present form when she signed it. (While at one point she professed not to recall seeing the November 12 date thereon, she elsewhere acknowledged that she did not read the application before signing it.) Accordingly, it is found that initially she was granted leave only from October 12 to November 12. At the same time, I am persuaded by Doyle's testimony that she honestly believed that such grant was for 60 days. It seems likely that she gained this impression from a reference by Henry to the 60-day provision in the employee manual or from Henry's assurance that she would be granted the maximum of 60 days, if she needed it. 15 While I credit Doyle's testimony that on December 13 she told Henry that she had been home during the period of the alleged telephone calls, Doyle did not offer any testimony about her actual whereabouts during that period. There is therefore insufficient basis in the record for finding that Doyle was in fact at home throughout that period. The General Counsel's final contention that Doyle was subjected to disparate treatment, when Respondent decided to terminate her for failing to return on December 6, is prima facie negated by the language of Respondent's afore- quoted extended sick leave policy, which requires the termi- nation of any employee for overstaying such a leave.16 Nevertheless, as the General Counsel points out in his brief, certain testimony by Coffey seems to imply that he would have waived this requirement, if Doyle had been considered a sufficiently valuable employee; for, as already related, he testified that on December 6, he reviewed Doyle's case and decided not to waive the rule for her in view of her record of absenteeism and tardiness. On this point, Respondent's timecards show that from January 1 through October 6, 1971,17 Doyle was absent from work a total of 19 days,'s including 11 days charged to paid sick leave ,19 and was tardy a substantial number of times; and, Doyle admitted that at least one of her annual performance ratings con- tained an unfavorable comment on her absenteeism.20 There was no evidence that Respondent had waived the 60-day limit on extended sick leave for any other employee under comparable circumstances.21 Under all the circumstances, there appears to be no preponderance of evidence that the termination of Doyle on December 6, for overstaying her leave constituted disparate treatment 22 16 Doyle admitted, moreover, that on October 4, Henry explained that under Respondent's extended leave policy she would retain her seniority only if she returned before the end of leave and that, if she returned thereafter, she would lose her seniority and have to wait for the first , available opening. 17 This was the only period for which any documentary evidence was offered concerning Doyle's-attendance. There was no contention nor evi- dence that her record was any better during prior years. 19 This was in addition to 10 days' paid vacation received by Doyle during that period. 19 There was no explanation for the apparent discrepancy between the timecards and the testimony in the record than on October 6 Doyle used up the last of the 12 days of paid sick leave allowed her each year. 20 The General Counsel disputes the accuracy of Coffey's reference at the hearing to Doyle's "inordinate use of sick leave." Pointing out that on Octo- ber 4 Doyle had not quite used up her alloted paid sick leave , the General Counsel asks "how an employee can inordinately use sick leave and at the same time have sick leave available for her use?" This query misses the point of Coffey's testimony. As the General Counsel recognizes , Coffey was evi- dently speaking only of paid sick leave and within that frame of reference Doyle's use of all or nearly all of her annual allowance within little more than 9 months might well be considered inordinate in comparison with such employees as used little or more of their paid, sick leave during that period. The record shows that in 1970 (before the advent of the Union) Simmons was taken back after an absence of 5 months due to disability and was given a "sitting-down" job until she completed her recovery. However, it does not appear whether Simmons was "terminated " after 60 days' absence and taken back only because of the fortuitous existence of a vacancy when she returned or whether she retained her status as an employee with full seniority rights until she returned, thereby enabling her to "bump" a junior employee. More- over, there was no evidence that Simmons had an absenteeism or tardiness record comparable to Doyle's nor any other basis for comparing the relative merits of the two as employees . Finally, Coffey testified that there was a factor in Simmons' case, which Respondent thought entitled her to special consideration-namely, that her disability had been caused by a job-related injury. It seems not implausible that Respondent would feel greater obliga- tion to an employee injured while at work than would otherwise be the case. 22 In explaining why, on November 10, he extended Doyle's leave to De- cember 6, Coffey averred that Respondent "wanted her back." It may seem strange that he reached a different conclusion about Doyle on December 6, when the question of terminating her for overstaying her leave arose . Howev- er, any contention that this Change in attitude was due to her union activity runs afoul of the fact that such activity was already well known to Coffey on November 10, when he extended her leave . Moreover, in view of the fact that the retention of Doyle after December 6, would have been in derogation EXTENDICARE OF KENTUCKY, INC. 403 Nor, was it sufficiently shown that, in failing to take Doyle back on and after December 13, Respondent showed her less consideration than it had shown to other employees. The aforequoted rule states only that, once an employee has been terminated for overstaying his leave, Respondent will make an "earnest effort" to place him in his previous posi- tion or in some other suitable position, but only upon "the employee's recovery and ability to return to work ... as certified by his physician." Even if it be assumed that Doyle's condition, when she returned on December 9, with a medical restriction on her lifting activity, constituted a proper certification of her "recovery and ability to return to work" within the intendment of that rule, there is nothing in the record to contradict Coffey's denial that since De- cember 1, Respondent has had no opening in the dietary department of any kind, let alone one that was suitable for an employee in Doyle's condition, and there is no evidence that any such opening existed anywhere in the hospital. Accordingly, it is concluded that there is insufficient evidence of discrimination against Doyle with respect to her termination and the failure to rehire her, and it will be recommended that the relevant allegations of the complaint be dismissed. IV THE REMEDY It having been found that Respondent violated Section 8(a)(3) and (1) of the Act, it will be recommended that it be ordered to cease and desist therefrom and take appropriate, affirmative action. Since the violations found herein consist in discnmina- tion against employees with respect to their working condi- tions, a broad cease-and-desist order is warranted. CONCLUSIONS OF LAW .1. Extendicare of Kentucky, Inc., is an employer within the meaning of Section 2(5) of the Act and is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1 2. The Union is a labor organization under the Act. 3. By imposing more onerous work tasks on Doyle and Simmons, in order to discourage employees union activity, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By interrogating Simmons about her union activity and by maintaining an unduly broad no-solicitation and no-distribution rule, Respondent has' violated Section 8(a)(1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of of Respondent's published rule, it would have been appropriate for Coffey at that time to scrutinize Doyle's record more carefully than was the case on November 10, when all that was involved was the question of granting a discretionary extension of her leave. Act, there is issued the following recommended:23 ORDER Extendicare of Kentucky, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, and concerted activi- ties on behalf of, Service Employees' Internation Union AFL-CIO, Local 557, or any other labor organization, by imposing on employees onerous work assignments because of their union activity. (b) Forbidding solicitation by employees on behalf of a union on company premisis during nonwork time, and forbidding employees to distribute union literature in non- work areas during nonwork time. (c) Interrogating employees about their union activities or sentiments. (d) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, loin, or assist the above-named Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act:' (a) Post at its hospital in Louisville, Kentucky, copies of the attached notice marked "Appendix,"24 Copies of said notice, on forms to be provided by the Regional Director for Region 9, shall, after being duly signed by its representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places. Reasonable steps shall be taken to in- sure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of receipt of this Order, what steps have been taken to comply herewith.25 IT IS FURTHER ORDERED that all allegations of the com- plaint as to which no violations has been found be dis- missed. 23 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, recommendations and recommended Order herein shall, as proyided 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 24 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." 25 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 have been taken to comply herewith."