Garrard Convalescent Home, Inc.

GARRARD CONVALESCENT HOME Garrard Convalescent Home, Incorporated and Na- tional Union of Hospital and Nursing Home Em- ployees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO. Case 9- CA-6534 October 12, 1972 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On May 31, 1972, Administrative Law Judge' Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, both the General Counsel and Respondent filed exceptions and sup- porting briefs. 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 attached Decision in light of the exceptions and briefs 2 and has decided to affirm the rulings, find- ings,3 and conclusions of the Administrative Law Judge, and to adopt his recommended Order,4 except as modified herein. 1. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging employ- ees Lula Hurry and Ethel Smith,' but that the dis- charge of Juanita Smeal did not violate the Act .6 In ' The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. D The General Counsel has excepted to the Administrative Law Judge's refusal to accept his brief because it was received I day after the due date set by the AU The General Counsel' asserts that he mailed the bnef on Friday, May 5, 1972, and that in due course of the mails it should have been received in Washington on Monday, May 8. However, the brief was not received until the afternoon of May 9 and, therefore, was rejected and re- turned by the ALJ In this case, it appears to us that it was reasonable for the General Counsel to assume that in the normal operation of the mails, even over a weekend, the 3 day mailing period would be sufficient for the brief to be timely received As the delay in receiving the brief appears not to be attributable to the General Counsel and no one would be prejudiced by its acceptance, we have received the bnef and have given it full considera- tion herein. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge'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. 4 In view of the 8(a)(1) and (3) violations committed by Respondent, we believe a broad order is appropriate. We shall accordingly amend the Order recommended by the Administrative Law Judge. 'In adopting the ALJ's findings that these discharges violated the Act, we also rely on the fact that Supervisor Lorene McClenney told employee Judy Guy, 2 days after Hurry and Smith were discharged, that Respondent had already "gotten rid" of the employees it knew had been causing all the trouble 6 Inasmuch as we do not find that the record supports the General 711 addition, we agreee with the ALJ's findings that Re- spondent engaged in certain conduct in violation of Section 8(a)(1). 2. The ALJ also found that employee Judy Guy was discharged for failing to report to another of Respondent's nursing homes as ordered, and, there- fore, that her discharge did not violate the Act. We disagree. In our opinion, the reason given by Respon- dent for her discharge was pretextual, and we find that she was actually discharged for her union activi- ties, in violation of Section 8(a)(3) of the Act. Respondent, and the Daly Park and Avon homes, incidentally involved herein, are nursing homes in the Cincinnati metropolitan area owned by Keller Nursing Homes. The facts show that Judy Guy was employed by Respondent as a nurse's aid, and had signed an authorization card on or about August 15, 1971.On August 18, 2 days after employees Hurry and Smith were discharged, Guy was told by her su- pervisor, Lorene McClenney, that Respondent knew which employees had signed cards, that it knew that Guy had signed a card, and that Guy would be fired because she had signed the card. McClenney further told Guy that she could protect her job by signing a statement disavowing her support for the Union' Early in September 1971, when the Daly Park home had labor trouble, Respondent's administrator, Clifford Montgomery, asked Guy to work at that home for 1 day and she agreed. Montgomery drove Guy and two other nurses aides to the home, but when Guy saw that she had to cross a picket line, she, ac- cording to the Administrative Law Judge, "protested mildly." In any event, she and the other aides did work behind the picket line for that day. A labor dispute also developed in September at the Avon home, located in Cincinnati.' On Monday, September 13, Montgomery told Guy that she had been selected for transfer to that home along with nurses aide Frances Mann because of a shortage caused by the dispute. The record shows that because Guy informed Montgomery that she did not know how to get to the home and had no means of transpor- tation, it was arranged that she would ride with Mann. However, when Guy did not receive a message as to the time she would be picked up, she telephoned the home to attempt to reach Mann and spoke with the Counsel's contention that Smeal's layoff on August 11, 1971, violated the Act, we find that the Administrative Law Judge' s denial of the General Counsel's motion to so amend the complaint was not prejudical. 7 McClenney told Administrator Montgomery about the cards upon his return from vacation on August 17. Montgomery then told McClenney that the employees could purge themselves if they came forward, admitted their guilt, and tore up the cards they had signed; that if the Union got into the nursing home, there was a possibility that it would be closed down; that employees who wanted to stick with the Union would lose their jobs; and that she should relay all this information to the employees, which she did. The ALJ found such conduct to be violative of Section 8(a)(I) of the Act 8 Respondent is located outside of Cincinnati in Covington , Kentucky. 199 NLRB No. 94 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receptionist, Montgomery's wife. Guy asked her whether she should report to Respondent the next morning, but Mrs. Montgomery replied that she was no longer employed at Respondent, and that she was to go to the Avon home or was fired. Guy then spoke to Mr. Montgomery who confirmed these statements, but would not give her a reason for her discharge, saying that was up to the owner of Respondent. As a result, Guy did not report to the Avon home that evening. Respondent asserts that Guy was discharged solely for her failure to work at the Avon home as directed and the Administrative Law Judge agreed. In reaching this conclusion, he stated that Guy had "willingly" worked behind a picket line before, and that when McClenney told her she was to be fired for signing a card, McClenney was not speaking for Re- spondent. In our opinion, neither reason relied on by the ALJ is supported by the record. First of all, it is clear that although Guy did cross the picket line at Daly Park, she had no choice and did voice her opposition to doing so. Secondly, the ALJ's finding that Mc- Clenney was not speaking for Respondent is incon- sistent with his finding that McClenney is a supervisor and that Montgomery did in essence, tell McClenney to relay such a statement to the employees. To us, it is clear that Respondent, in requiring that Guy had to work at Avon in order to retain her job, was imposing an unreasonable burden on her which it knew she could not fulfull, and was really carrying out its threat to discharge those who had signed cards. While Respondent's method of discharging Guy was more subtle than that utilized in terminating Hurry and Smith, we are convinced that the fact that she did not report to the Avon home was a pretext for her dis- charge, and that she was really discharged for being a known union adherent in violation of Section 8(a)(3) and (1) of the Act. Accordingly, we shall order that Respondent offer Guy immediate and full rein- statement 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 the discrimination to the date of offer of rein- statement, less her net earnings during that period. The backpay provided herein shall be computed in accordance with our formula set forth in F. W. Wool- worth Company, 90 NLRB 289, with interest theron at the rate of 6 percent per annum in the manner pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716. 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 Administrative Law Judge as modified below and hereby orders that Respondent, Garrard Convalescent Home, Inc., Covington, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein. 1. Substitute "In any other" for "In any like or related" in paragraph 1(f). 2. Substitute "Offer Lula Hurry, Ethel Smith, and Judy Guy" for "Offer Lula Hurry and Ethel Smith" in paragraph 2(a). 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by dis- charging Lula Hurry, Ethel Smith, and Judy Guy in order to discourage your union activities, we hereby notify you that: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge you in order to dis- courage your union activities. WE WILL NOT threaten to close the Garrard Street home if you organize for purposes of col- lective bargaining. WE WILL NOT threaten you with loss of your jobs for engaging in union activities. WE WILL NOT instruct you to come forward, admit your guilt in signing authorizations cards for a union, and tear them up in order to protect your jobs. WE WILL NOT urge you to sign statements dis- claiming your, union activities. WE WILL NOT, in any other manner, interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Lula Hurry, Ethel Smith and Judy Guy immediate and full reinstatement to their former jobs or, if those jobs no longer exist, GARRARD CONVALESCENT HOME to substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them whole for any earnings they lost as a result of their discharges on August 16, 1971, plus 6-percent interest. All our employees are free to join National Un- ion of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Un- ion, AFL-CIO, or any other labor organization. GARRARD CONVALESCENT HOME, INCORPORATED (Employer) Dated By (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 STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Trial Examiner : The charge in this case was filed on October 18, 1971.1 The complaint was issued on December 8. The hearing was held on Feb- ruary 23 and March 21 , 1972, in Cincinnati, Ohio. The complaint alleges violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, in that Respon- dent discriminatorily discharged four employees. It also al- leges various independent violations of Section 8(a)(1). For the reasons set forth below, I find for the General Counsel with respect to the discharges of Lula Hurry and Ethel Smith, for Respondent with respect to the discharges of Judy Guy and Juanita Smeal . I also find some, but not all, of the independent 8(a)(1) violations alleged in the com- plaint. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of Respondent's brief, I make the following: FINDINGS OF FACT I JURISDICTION Respondent, a Kentucky corporation, operates a pro- prietary nursing and convalescent home on Garrard Street 1 Dates, except the date of the hearing, are all 1971. 713 in Covington, •Kentucky, just across the Ohio River from Cincinnati, Ohio. During the year prior to the issuance of the complaint herein, its gross revenue exceeded $ 100,000 and it purchased goods valued in excess of $5,000 which were shipped directly to it from points outside Kentucky. It is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party is a labor organiza- tion within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Facts 1. Events culminating in the discharges of Lula Hurry and Ethel Smith Respondent is one of a number of nursing homes in the Cincinnati area owned by a man named Keller and known jointly as Keller Nursing Homes. In August, appar- ently in the latter part of the week which began on Monday, August 2, a story appeared in a Cincinnati newspaper about the Charging Party's campaign, then 3 months old, to or- ganize nursing homes in the Cincinnati area . The story men- tioned wages of $2.50 an hour as one of the goals of the union organizers. Donald Reckner is operations manager of Keller Nursing Homes. Clifford Montgomery is administra- tor and Betty Smiley is director of nursing of Respondent; i.e., they are the two top supervisors at the Keller nursing home involved in this case. All were aware of the newspaper story and thus of the fact that Keller nursing homes were likely targets of a union organizing campaign when the following events began . The Keller policy is to oppose or- ganization of the employees in its nursing homes. A week or so prior to Saturday, August 14, Mrs. Smiley found an anonymous note clipped to her timecard when she arrived at the home . It read: This note is from all employees . We all wants $2.00 hr. If not we going to walk out. She pinned it to the bulletin board over the timeclock. On Wednesday, August 11, employees Lula Hurry, Ethel Smith, Juanita Smeal, Frances Mann, and Linda Rob- bins were gathered around a clipping of the newspaper story at the nurses station on the second floor of the home when Mrs. Smiley came up the stairs. Mrs. Smeal was a house- keeper. The other four were nurses aides. Mrs. Smeal was trying to look up, in a local telephone book, the Charging Party's national executive vice president who was named in the story. When Mrs. Smiley appeared , Mrs. Smeal dropped the telephone book on the floor, and the five employees scattered. Frances Mann took the clipping with her. Mrs. Smiley went into a patient's room on the second floor. A few minutes later, when she came out, she went to each of the employees working on the second floor and asked them for their telephone numbers . That evening Mrs. Smiley tele- phoned Mrs. Smeal at home and suspended her for 7 work- ing days for "sloppy appearance, dirty uniform, hair dirty looking, unkept, long dirty fingernails." Mrs. Smeal utilized the yellow pages of the telephone book and eventually made contact with the Charging Party. Arthur Bivins, an organizer for the Charging Party, invited her to come to the office and bring a couple of other em- ployees with her. She did so on Friday, August 13. Lula 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hurry and Linda Robbins went with her. Bivins explained the Charging Party's campaign and the techniques of organ- izing to them. Each signed an authorization card and gave it to Bivins. Each took a supply of blank authorization cards from Bivins to use in trying to sign up Respondent 's other employees . Bivins said he would come to the home on Sun- day, August 15, to pick up executed cards. They told him to ask for a patient named Elizabeth Jones in order to get in. Because she was on suspension and thus would not be in the home the next 2 days , Mrs. Smeal gave her supply of blank cards to Mrs. Hurry. Lula Hurry and Linda Robbins signed up a number of Respondent's employees on Saturday, August 14, and Sun- day, August 15. The record does not indicate exactly how many. Among those who signed an authorization card were Ethel Smith and Judy Guy, another nurses aide. Bivins came to the home on Sunday afternoon as planned, asked at the reception desk for Elizabeth Jones as instructed, was admitted without question, picked up executed cards from Lula Hurry and Linda Robbins, and left without incident. Meanwhile, on Saturday, August 14, Frances Mann asked to speak to Betty Smiley in the latter's office. She brought with her a second anonymous note . She said that another nurses aide had brought it to her home the day before and asked her to clip it to Mrs. Smiley 's timecard. She said she was upset. She said she felt Mrs . Smiley ought to know about the note, although she would not name the person who gave it to her. She gave the note to Mrs. Smiley. It read: If you don't see to it that we get our raise , we'll see to it that you get the "HELL" beat out of you. "Your days are numbered." "You haven't very long." So get on the ball, before we get you. Mrs. Smiley attempted to reach Donald Reckner by telephone. However, before he received the message to re- turn her call, he arrived at the home for a periodic, unsche- duled inspection. Mrs. Smiley gave both of the anonymous notes she had received to Reckner. Reckner took them to the Covington police station. He discussed with the police the possibility of swearing out warrants for the person or persons who wrote the notes. He did not swear out warrants. When Reckner returned to the home, he prepared a notice which read: To: All Employees From: Administration It has come to the attention of this office that a threat- ening note has been given to the Director of the Gar- rard Nursing Home. The Covington Police De- partment has been advised of this situation. If the personnel involved are identified or if any further threats (in any way) are made to any employee, I can assure you that a warrant will be issued for the arrest of the personnel involved. Reckner also inspected the home on Saturday , August 14. He filled in a checklist called a "Nursing Home Survey Report." He wrote a note intended for Clifford Montgom- ery, administrator of the home who was on vacation at the time. It read: Patient Care The deficiencies listed below are to be corrected imme- diately. You are to take whatever steps necessary to see that these conditions are corrected and they are never found in this facility again . I suggest you make some personnel changes as soon as possible. (1) Your nursing personnel are SLOPPY in ap- pearance. (2) Patients are not kept clean. (3) Foot care is not given by your aides. (4) Patient appearance is below standards. (5) Aides are rude to patients. (6) No mouth care given by your aides. Your non-professional nursing staff is giving verypoor nursing care. Reckner conducted a meeting of employees on Mon- day, August 16. He read to them the two anonymous notes received by Mrs . Smiley. He told them Mrs. Smiley had found the notes clipped to her timecard. He said he had been to the police station and the police had advised him to take out a warrant for the culprit if he found out who it was. He said he was not going to do it but if it ever happened again he would take out a warrant. He read the employees the notice he had prepared on Saturday and, after the meet- ing was over, posted it on the bulletin board. He did not mention his Saturday inspection or his criticisms growing out of it to the employees. After the meeting, Reckner went to an office in the home. A short time later he summoned Lula Hurry and Ethel Smith and discharged them . He refused to give them a reason for their discharges. When they asked him for the reason, he replied, "I could tell you it is because I don't like your uniforms or because you want $2 an hour. I said punch your cards, you are through." (I do not credit Reckner's denial that he made this statement or his testimony that he told Mrs. Hurry and Mrs . Smith he was terminating them for improper and ineffective work habits.) 2. Events following August 16 and preceding the discharge of Judy Guy Lorene McClenney is a licensed practical nurse. Dur- ing the times relevant to this case she was employed by Respondent as charge nurse on the second shift. Sometime in July, Clifford Montgomery called her into his office and told her about the campaign to organize nursing homes in the Cincinnati area. He told her the Union might try to contact the nursing homes across the river from Cincinnati in Kentucky. He told her to keep the doors of the Garrard home locked and, if anybody came, to make them identify themselves before they came in. On August 15, apparently after Arthur Bivins had left, several of the employees on Miss McClenney's shift told her that he had been in the home to pick up authorization cards. After the August 16 meeting, either that evening or the following evening but, in any event, before she talked to Montgomery on his return from his vacation, employees on 1 GARRARD CONVALESCENT HOME 715 her shift came to her and said they were concerned about theirjobs because they had signed authorization cards. She told them they probably could lose their jobs. When Montgomery returned from vacation on Tues- day, August 17, Miss McClenney told him about Bivins' visit and what the employees had said to her about their concerns. Montgomery told her that the employees could purge themselves if they came forward, admitted their guilt, and tore up the cards they had signed. He told her that there would have to be an election anyhow and that, if the em- ployees did not vote for the Union, that would be all there would be to it. He told her that if the Union got.into the nursing home, there was a possibility it would be closed down. He told her the patients would be moved out to other Keller nursing homes in the area, the employees who want- ed to work would be transferred with them, but the employ- ees who wanted to go with the Union would lose their jobs. Montgomery told Miss McClenney to relay all this informa- tion to the employees. She did so. (I do not credit Montgomery's version of his conversation with Miss Mc- Clenney when he returned from vacation.) Frances Mann and Linda Robbins told Miss McClen- ney that they had followed her instructions and gone to Montgomery. The record does not reveal what was said when they did so. Later on August 17 Montgomery discussed the situ- ation with a group of registered and licensed practical nurs- es during a nursing conference. In the course of the conversation, Montgomery said that, if the Union got in, the home just could not operate, it would be closed down, and the patients would be moved out. On August 18 Judy Guy had a series of conversations with Lorene McClenney. In the first one, Miss McClenney asked Mrs. Guy whether she had signed an authorization card. Mrs. Guy said she had not. Miss McClenney said Mrs. Guy might as well admit it because Miss McClenney knew that she had. Mrs. Guy repeated her denial. Miss McClen- ney said, "I've seen the union card. I know you signed it. Mrs. Smiley said to tell you girls that if you didn't sign a union card all you have to do is sign a piece of paper stating `I, Judy Guy, had nothing to do with the union or talk of a walk-out.' " As she made this statement, Miss McClenney demonstrated with a piece of paper what Mrs. Guy should do. (I credit the denial of Mrs. Smiley, whom I found to be a generally credible witness, that she gave any such instruc- tions to Miss McClenney. In any event, there is no direct evidence in the record that she did so. The hiatus in the hearing in this case was caused by the illness of Mrs. Guy. When Miss McClenney testified as a witness for the General Counsel on February 23, 1972, she was not asked about conversations with Mrs. Guy. After Mrs. Guy testified on March 21, Miss McClenney was not recalled either to corro- borate or refute her testimony. The significance of this part of Mrs. Guy's testimony, and the reason I credit her testi- mony that Miss McClenney spoke to her in this vein, is not that Miss McClenney mentioned Mrs. Smiley but that she demonstrated a technique by which employees could purge themselves of the guilt of having engaged in union activities that was consonant with Montgomery's instructions to Miss McClenney on August 17.) Miss McClenney said Mr. Keller said employees who signed such a paper would be guaranteed a job if he had to close the Garrard home and he would do it before he let the Union in, adding, "You might as well sign this, Judy, be- cause when you signed this union card you signed your life away." Miss McClenney went on, "If you can find another job you better look for it. I can name everyone of you that signed a union card and every one of you that didn't." Mrs. Guy insisted again that she had not signed an authorization card. Miss McClenney said, "Judy, you know you did. It has your name, your address, and your phone number on it." Mrs. Guy exchanged a few whispered, laughing words with another employee, Jewell Knight, about whether Miss McClenney really knew that they had signed cards. Miss McClenney said, "Well, Judy, I know you signed the union card. You can tell by the look on your face that you're guilty and that you signed it." Mrs. Guy asked how she had found out. Miss McClenney said she had been told. Mrs. Guy asked by whom. Miss McClenney said, "You know I won't tell you. You know these girls trust me and that they will tell me." Mrs. Guy said, "I didn't sign one. I wouldn't be stupid enough to sign one knowing I'd lose my job." Miss Mc- Clenney sent Mrs. Guy back to work. Some 20 minutes later, Mrs. Guy encountered Miss McClenney again. Miss McClenney asked Mrs. Guy if she would like Miss McClenney to name the girls who had signed cards. Mrs. Guy told her to go ahead. Miss Mc- Clenney named the following card signers among others: Judy Guy, Juanita Smeal, Ethel Smith, Frances Mann, Lin- da Robbins, Lula Hurry, and Jewell Knight. As nonsigners she named, among others, Christine Hayden, Zera Mahone, Alberta Varner, Bernice Wilson, and Nancy Brewer. The only one she got wrong was Nancy Brewer, who had signed a card. Miss McClenney then said Respondent had already gotten rid of the ones it knew had been causing all the trouble, that is, Lula Hurry and Ethel Smith. Still later that evening, Mrs. Guy asked Miss McClen- ney if she really meant that Mrs. Guy was going to be fired. Miss McClenney said, "Yes, Judy, Mr. Montgomery knows every one of you that signed a union card. If you can find another job, you had better find it because you're going to be fired. You thought you all were pretty smart letting that colored man come in here saying he was visiting Elizabeth Jones. We knew he was a union man when he came in. That's where you made your first mistake, was having a union man come on the property." On several occasions in the period of a day or two following August 18 Miss McClenney asked Mrs. Guy how many employees were supporting the Union. Mrs. Guy said she did not know. Early in September labor trouble erupted at a Keller nursing home in Cincinnati known as Daly Park. Around September 3, Montgomery asked Mrs. Guy if she would be willing to go to Daly Park to help out. She agreed. Mont- gomery drove Mrs. Guy and two other nurses aides to Daley Park. Mrs. Guy protested mildly at crossing the picket line which had been set up. However, she crossed it with Mont- gomery and the other two women and"worked behind it all day. The next working day she was back at Garrard. 3. The discharge of Judy Guy Trouble also developed in September at a Keller nurs- 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing home in Cincinnati known as Avon. (The Charging Party in this case filed a charge in Avon Convalescent Center, Inc., Case 9-CA-6316, , on June 11. However, the only unfair labor practice alleged was surveillance on or about June 7. Complaint issued on August 27. On October 14, Service, Hospital, Nursing Home & Public Employees Un- ion Local 47, Service Employees International Union, AFL-CIO, filed a charge against Avon in Case 9-CA-6529. The complaint, which issued on December 2, alleged 14 discriminatory discharges, 1 on August 26 and 13 in Octo- ber. The two Avon cases were consolidated, and a hearing was held in Cincinnati before Trial Examiner William Feldesman several weeks before the hearing in this case.) On Monday, September 13, Montgomery told Mrs. Guy that she had been selected for transfer to Avon along with Frances Mann because of the shortage of help caused by the labor dispute there. They were to report at Avon at 11:30 p.m. on Tuesday, September 14. Since Mrs. Guy had no transportation to the Avon home, it was arranged that Mrs. Mann would drive her. They were to meet at the Garrard home at a mutually convenient time and go on from there. Mrs. Guy was to call the Garrard home during the day on Tuesday to find out what time she was to meet Mrs. Mann. On Tuesday, September 14, Mrs. Guy failed to receive a message that she was supposed to meet Mrs. Mann at 10:30 p.m. (Montgomery's wife testified that she relayed Mrs. Mann's message to Mrs. Guy on the afternoon of September 14. Mrs. Guy testified that she first learned of the 10:30 rendezvous time when Mrs. Mann called her around midnight to find out why she had not shown up. I credit Mrs. Guy over Mrs. Montgomery although, in my opinion, it is unimportant whether Mrs. Guy failed to get to Avon because of a mixup or because of a deliberate decision not to go. My findings as to what happened on September 13 and 14 are based on the testimony of Mrs. Guy rather than the testimony of Mr. and Mrs. Montgomery where the two versions are in conflict.) Around 4:30 p.m. Mrs. Guy called the home and talked to Marguerite Montgomery, the wife of the administrator and herself a secretary-receptionist. When Mrs. Montgomery told her that Mrs. Mann had not called with word when they were to meet that night, Mrs. Guy asked if she was to come to work at Garrard on Wed- nesday morning. (Mrs. Guy had been assigned to the day shift at Garrard for the week of September 12.) Mrs. Mont- gomery told her no, adding, "You are no longer employed at Garrard Street. You are to go to Avon or you're fired." Mrs. Guy asked why she was fired. Mrs. Montgomery said she did not have to give any reason, the decision came from the main office, and if "they" wanted to fire you, "they" fired you. Mrs. Montgomery put her husband on the line. Mrs. Guy asked him how long she would have to work at Avon. Montgomery told her for a couple of nights until the trouble Avon was having with some of its girls was over. Mrs. Guy asked if she would come back to Garrard at that time. Montgomery said, "No, you'll go wherever they send you." Mrs. Guy asked why she had been fired. Montgomery said, "I have no reason. That is up to Mr. Keller." me this afternoon ." She explained to Mrs. Mann that she had not gotten a sitter to stay with her daughter because of the mixup over how she was to get from her home in New- port, Kentucky, to the Avon home in Cincinnati. Mrs. Mann decided not to go to Avon by herself. The next day Montgomery fired her also for not reporting to Avon as ordered. 4. The discharge of Juanita Smeal As already noted, Juanita Smeal was suspended for 7 days on August 11. She returned on August 23 and worked without incident until September 6. At that time, by ar- rangement with Mrs. Smiley, she took off for 2 weeks in order to visit Hawaii. One week was her vacation and the other a leave of absence. She returned home on Friday evening, September 17. When Mrs. Smiley prepared the schedule for the week beginning Sunday, September 19, she listed Mrs. Smeal as being off on Sunday and Monday, then as working from 8 a.m. to 4:30 p.m., Tuesday through Saturday. Mrs. Smeal called the home on Sunday evening, September 19, and spoke to Miss McClenney. Miss McClenney told Mrs. Smeal that Mrs. Smiley had said Mrs. Smiley had put some- body else in Mrs. Smeal's place and no longer needed her. Apparently Miss McClenney did not look at the schedule which was posted in the home. (Once again, I credit Mrs. Smiley's denial that she said any such thing to Miss Mc- Clenney. Miss McClenney testified after Mrs. Smeal on February 23, 1972. However, she was not asked about a telephone conversation with Mrs. Smeal on September 19, either by the General Counsel or Respondent. Therefore, there is neither corroboration nor refutation in the record of Mrs. Smeal's account of her call. Since counsel for the General Counsel elected not to ask Miss McClenney wheth- er Mrs. Smiley had given her such a message for Mrs. Smeal, I infer that her answer would not have supported the Gener- al Counsel's" case.) Mrs. Smeal did not report for work as scheduled on Tuesday, September 21, and Wednesday, September 22. Each day, Mrs. Smiley marked her absent on the schedule. She made no effort to contact Mrs. Smeal. On the latter date, Mrs. Smiley concluded that Mrs. Smeal was not com- ing back and took her off the schedule for the remainder of the week. Mrs. Smiley reported what had happened to Montgomery. Montgomery submitted the following report to Keller Nursing Homes: EMPLOYEE NAME: Smeal. Juanita (Please check correct one) Leave of Quit [ X] Fired [ ] Absence [ Mrs. Mann telephoned Mrs. Guy at home near mid- Reason for termination night on September 14. Mrs. Mann said she was waiting for Mrs. Guy at Garrard and asked Mrs. Guy if she was ready didn 't return after 1. o. a. to go to work. Mrs. Guy said, "No, Mr. Montgomery fired GARRARD CONVALESCENT HOME 717 As of this date 9-21 19 71 , the above named employee' has left our employ for reason stated . Please remove employee from our Payroll records. GARRARD Nursing Home Is/ C.H. Montgomery 9/24/71 Administrator Date B. Analysis and Conclusions 1. The supervisory status of Lorene McClenney Respondent denies that Lorene McClenney, who is no longer employed by Respondent, was a supervisor within the meaning of the Act during the period relevant to this case. The only evidence in the record bearing on this issue is the testimony of Miss McClenney herself. She testified credibly that she was in charge of the second shift; there were no registered nurses assigned to that shift, although one was on call if needed; five or six employees, presumably nurses aides or other licensed practical nurses, worked un- der her direction; she frequently arranged for employees to fill in on the third shift if a problem arose with third-shift staffing,during the second shift; she discharged a second- shift employee on one occasion without first checking with Mrs. Smiley, her immediate superior; and she hired em- ployees for the second shift on one or two occasions under similar circumstances. To the question "What did [Mrs. Smiley] tell you your authority was?" her unrefuted reply was, "She told me that I was to see that [the employees on the second shift] did their work and if they didn't I could send them home." I find, on the basis of Miss McClenney's testimony, that she was a supervisor within the meaning of the Act for whose conduct Respondent must, therefore, bear responsibility. 2. The discharges of Lula Hurry and Ethel Smith Respondent contends that Lula Hurry and Ethel Smith were discharged for cause in that they had recently violated Respondent's standards of patient care. Donald Reckner testified that when he went to the office in the Garrard home after the employee meeting on August 16, he was upset about the unsatisfactory inspection he had con- ducted on August 14 as well as the anonymous notes about which he had just warned the employees. He went through the personnel records of approximately 12 out of the ap- proximately 25 nurses aides employed at Garrard. He se- lected Mrs. Hurry and Mrs. Smith for discharge because he found notations in their files that they had recent infrac- tions. The notations he found in Mrs. Hurry's and Mrs. Smith's files are informal jottings on the reverse sides of forms used in the home which Mrs. Smiley had begun keep- ing in the spring of 1971. (Mrs. Smiley was unable to give any reason why she elected at that time to start this system of recordkeeping. The paper from Mrs. Hurry's file is a blank disciplinary report form apparently used in Keller Nursing Homes to report disciplinary actions taken against employees to the personnel department. I infer from the fact that Respondent consulted its personnel files in preparation for the hearing in this case yet offered into evidence no disciplinary reports relating to either Mrs. Hurry -or Mrs. Smith that neither was ever formally disciplined. This corro- borates the testimony of Mrs. Hurry and Mrs. Smith that their work was generally satisfactory. I so find. The notes from Mrs. Smith's and Juanita Smeal's personnel files are on the back of what appears to be a laboratory report form. The quoted reason for Mrs. Smeal's suspension in sec. IIA1, third paragraph, is taken from an entry dated August 11 on the sheet pertaining to her.) The notation in Mrs. Hurry's file reads-"Aug. 11, 1971-Work assignment not complet- ed." The notation in Mrs. Smith's file reads "August 10, 1971-Work assignment not completed." (There is another notation following it which reads "August 11, 1971-Loud mouth in area of patients and visitors." Reckner testified that he relied only on the August 10 entry in making his selection of Mrs. Smith for discharge.) Respondent also raises the defense of lack of company knowledge. Insofar as proving by direct evidence that Reck- ner knew when he discharged Mrs. Hurry and Mrs. Smith that the former was one of the ringleaders in contacting the Charging Party and signing up employees for the Union and the latter had signed an authorization card or even that a formal organizing campaign had started at Garrard, there is no gainsaying the fact that there is a flaw in the General Counsel's case. Counsel for the General Counsel established that Miss McClenney was aware of Bivin's visit to the home on August 15 yet he failed to ask whether she had reported this fact to Mrs. Smiley or Reckner (or, for that matter, any other official of Respondent or Keller Nursing Homes) prior to the discharges of Mrs. Hurry and Mrs. Smith. In view of the fact that counsel for the General Counsel called Miss McClenney as his witness, I can only infer that the answer to such a question would have been in the negative. (Since I credit Mrs. Smiley's testimony that she was not aware of the August 11 incident when the employees who were trying to phone the union man named in the newspa- per clipping scattered as she came up the stairs, it has no significance with respect to the company knowledge issue.) Insofar as indirect evidence is concerned, I concluded from my observation of her at the hearing that Miss McClenney, while a reliable witness, was inclined to exaggerate some- what the importance of her own role at the home. Therefore, with respect to Reckner's knowledge on August 16, I attach no significance to her use of the word "we" when she said to Judy Guy, on August 18, "We knew he [Arthur Bivins] was a union man when he came in [to the home on August 15]." Finally, there is no need to fall back on a legal fiction that Miss McClenney's knowledge is imputable to Respon- dent because she was a supervisor within the meaning of the Act at the time, for what Reckner admittedly did know is, 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I think, sufficient to sustain a finding that he violated the Act when he discharged Mrs. Hurry and Mrs. Smith. Reckner admittedly knew that an organizing campaign was underway in the Cincinnati area directed at nursing homes owned by Keller as well as others . He was aware, from the anonymous notes about which he had just warned the employees at Garrard, that the employees were restless to the point of threatening a walkout and even violence to the person of Mrs. Smiley if they did not get a raise. He testified that the notes as well as his inspection were on his mind when he decided to get rid of some employees and selected Mrs. Hurry and Mrs. Smith. Therefore, it is clear that his knowledge of union, or at the very least concerted, activity among the employees played some part in what he did on August 16, even if he did not, as he testified, learn of the activities of employees to obtain authorization cards for the Charging Party until Montgomery returned from vacation on August 17. It follows that the question of whether Respondent violated the Act when Reckner dis- charged Mrs. Hurry and Mrs. Smith must turn on the ques- tion of his motive and not his knowledge. I find that Reckner discharged Mrs. Hurry and Mrs. Smith in order to discourage the employees at Garrard from engaging in union activities. He went through only half of the personnel files of nurses aides employed at Garrard. Thus, it follows, he stopped his search for employees whom he could make an example of without a real effort to de- termine whether Mrs. Hurry and Mrs. Smith were the only alleged offenders on the staff in rendering inadequate care Ito patients. He admittedly had no knowledge of why Mrs. Hurry and Mrs. Smith had not completed their work assign- ments on August 10 and made no effort to find out. Thus, it follows, he made no effort to determine whether Mrs. Hurry and Mrs. Smith could reasonably be held responsible for recent infractions of Respondent' s rules. In his report on the results of his inspection, he "suggested" Montgomery "make some personnel changes as soon as possible ." Mont- gomery, in his capacity as administrator of Garrard, nor- mally discharges unsatisfactory employees, yet Reckner could not wait 1 more day for Montgomery to return from his vacation to carry out his "suggestion." Thus, it follows, that Reckner acted with precipitate haste in discharging Mrs. Hurry and Mrs. Smith on August 16. The reason for his haste is clearly revealed by his statement to Mrs. Hurry and Mrs. Smith that he could tell them he was discharging them "because you want $2 an hour." Finally, while Miss McClenney may not have been privy to the workings of Reckner's mind, his purpose was so obvious even to her that she made no attempt to disguise it when, 2 days later, she told Mrs. Guy that Respondent had already gotten rid of the employees it knew had been causing all the "trouble." Since Miss McClenney was a supervisor within the meaning of the Act, this remark has a special significance. It proves that Reckner's motive was so obvious to everyone that even those who legally spoke for Respondent were not trying to maintain the fiction that Mrs. Hurry and Mrs. Smith had been fired for cause but were reinforcing the antiunion mes- sage which the discharges were intended to convey to the other employees. For all these reasons, I conclude that the reasons advanced by Respondent to justify the discharges of Lula Hurry and Ethel Smith are a pretext and that Reckner's real reason was to inhibit the campaign to organ- ize Respondent's employees which the anonymous notes had, given him good cause to suspect was imminent if not already underway. When Reckner discharged them for that reason, Respondent violated Section 8(a)(3) and (1) of the Act. 3. The discharges of Judy Guy and Juanita Smeal Judy Guy worked for Respondent until September 14. Juanita Smeal, although on leave after September 6, was in an employee status until September 21. Therefore, in each instance, company knowledge of their union activities pre- sents no great problem. Miss McClenney correctly named each as a card signer when she talked to Mrs. Guy on August 18. More significantly, this conversation shows that knowledge of who among Respondent's employees was for and who against the Charging Party was common gossip around the home long before Mrs. Guy and Mrs. Smeal were terminated. In each of their cases , the only real issue is motive. In both, I think, the record will not sustain a finding that Respondent's reason for letting them go was discriminatory within the meaning of the Act. Mrs. Guy's is the stronger case. Its strength lies in the statements made to her on August 18 by Miss McClenney when Miss McClenney told her that Respondent had fired Lula Hurry and Ethel Smith because they were union trou- blemakers, that it knew that she was proumon, and that it was going to fire her too because she had signed an authori- zation card. There is no direct evidence in the record that Miss McClenney was relaying a message from those above her. In view of my appraisal of Miss McClenney, already referred to above, I do not draw the inference that such evidence might normally lead to. In Mrs. Guy's case, as in Mrs. Hurry's and Mrs. Smith's above and Mrs. Smeal's below, I think Miss McClenney was presuming more than was justified by her actual position in Respondent's hier- archy or her actual knowledge of what her superiors were planning and doing. The strong points of the General Counsel's case are outweighed by the fact that Mrs. Guy willingly worked behind a picket line at Daly Park more than a week before the incident which caused her discharge. If it had been proved that Respondent discharged Mrs. Guy because she refused to cross a picket line at Avon on the night of Sep- tember 13, her case would stand in a completely different posture. However, her own account shows that it was a mixup over getting to Avon and not a matter of principle which caused her not to go to work that night. The fact that she had already "helped out" Keller Nursing Homes by working behind a picket line at another Keller home pre- cludes a finding that Respondent assumed prounion senti- ments were her real reason for not reporting to Avon. Therefore, there is no basis for rejecting Respondent's de- fense that Mrs. Guy was discharged for failing to report to Avon as ordered and not because of her, or any other em- ployees', union activities. The only support for the General Counsel's position to Mrs. Smeal's case lies in Miss McClenney's telling her, inac- curately, that Mrs. Smiley had replaced her while she was away. In view of my appraisal of Miss McClenney, it has no GARRARD CONVALESCENT HOME significance. The schedule for the week of September 19 is in evidence. It clearly shows that Mrs. Smeal was scheduled to work, that she was absent for 2 days, and that only then was she removed from the schedule . Mrs. Smeal made no effort, after talking to Miss McClenney, to contact Mrs. Smiley to confirm that she had been replaced or to find out why. Therefore, Respondent's assumption that she had quit was a reasonable one. For the reasons stated, I find that the General Counsel has failed to establish by a preponderance of the evidence that Respondent was discriminatorily motivated when it discharged Judy Guy and Juanita Smeal. 4. The 8(a)(1) violations There is no evidence in the record to support an allega- tion of the complaint that Respondent violated Section 8(a)(1) of the Act when Betty Smiley interrogated employ- ees in August. The complaint also alleges as an independent 8(a)(1) violation the statements which Donald Reckner made to employees at the meeting held on August 16. It characteriz- es them as "threatening employees with arrest because they engaged in protected concerted activity." Even the General Counsel's witnesses agree that Reckner said he was not going to press the issue created by the notes Mrs. Smiley had already received. Ethel Smith's version of what Reckner said was: ... he knew who wrote it, he had been to the police station, and they advised him to take out a warrant for the person, but he was going to let it slide by this time but if it happened again he was going to get a warrant out for them. Lula Hurry's version was: ... he was telling us about the notes that was placed on Miss Smiley's time card and said he had been down to the police station and the police had advised him to take out a warrant for the person that had put the time cards there. And he said he wouldn't do it but if it would happen again he would go down and have a warrant taken out for this person. The "it" to which Reckner referred was obviously the plac- ing of threatening notes on Mrs. Smiley's timecard. No case has been called to my attention which protects the use of anonymous threatening letters during concerted or union activities. I would be surprised if it had, for there is no more reprehensible conduct, in my opinion, in person-to-person relationships of any description. I find, therefore, that Re- spondent did not violate Section 8(a)(1) of the Act on Au- gust 16 when Donald Reckner told employees he would obtain arrest warrants for anyone who threatened bodily harm to Mrs. Smiley in the future. Other allegations of the complaint that Respondent violated Section 8(a)(1) of the Act by the conduct of Clif- ford Montgomery and Lorene McClenney have been sus- tained. I find that Montgomery's statements on August 17 to a group of assembled nurses that Respondent would close the home if the Union got in amounted to a threat. In view of Respondent's position that Lorene McClenney, a li- censed practical nurse in charge of an entire shift, was an employee, I conclude that other licensed practical nurses 719 who were in the group and as to whom there are no individ- ual data in the record were employees and not supervisors within the meaning of the Act. Therefore, Montgomery re- strained and coerced employees by threatening that the home would be closed if employees organized for purposes of collective bargaining. I find that Miss McClenney restrained and coerced employees when, following the August 16 meeting, she told employees they probably could lose their jobs for signing authorization cards; when, on August 17, she relayed to employees Montgomery' s message that they should come forward, admit their guilt in signing authorization cards for a union, and tear them up in order to protect their jobs, that it was possible the home would close if the union got in, and that prounion employees would lose their jobs when the home closed; and when , on August 18, she urged Judy Guy to sign a statement disclaiming her union activities and threatened her with discharge for engaging in them. Upon the foregoing findings of fact, and upon the en- tire record in this case, I make the following: CONCLUSIONS OF LAW 1. Garrard Convalescent Home, Incorporated, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. National Union of Hospital and Nursing Home Em- 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 discharging Lula Hurry and Ethel Smith on Au- gust 16, 1971, in order to discourage the union activities of its employees, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By threatening that its nursing home would be closed if its employees organized for purposes of collective bar- gaining; by threatening employees with loss of their jobs for engaging in union activities ; by instructing employees to come forward, admit their guilt in signing authorization cards for a union, and tear them up in order to protect their jobs; and by urging an employee to sign a statement dis- claiming her union activities, Respondent has violated Sec- tion 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The allegations of the complaint that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Judy Guy on or about August 30, 1971, and Juanita Smeal on or about August 24, 1971, because of their union inter- ests and activities and in order to discourage union activities and the allegations of the complaint that Respondent viola- ted Section 8(a)(1) of the Act by the conduct of Donald Reckner on or about August 17, 1971, and the conduct of Betty Smiley in August 1971 have not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and remedy them. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the discrimination practiced against Lula Hurry and Ethel Smith, I will recommend the usual remedy of reinstatement and backpay computed on a quarterly ba- sis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that Respondent be required to post appropriate notices. 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: ORDER2 Garrard Convalescent Home, Incorporated, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees in order to discourage their activities in connection with National Union of Hospi- tal and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (b) Threatening to close its nursing home if its employ- ees organize for purposes of collective bargaining. (c) Threatening employees with loss of their jobs for engaging in union activities. (d) Instructing employees to come forward, admit their guilt in signing authorization cards for a union, and tear them up in order to protect their jobs. (e) Urging employees to sign statements disclaiming their union activities. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 2 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes (a) Offer Lula Hurry and Ethel Smith immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any earnings they lost as a result of their discharges on August 16, 1971, plus 6-percent inter- est. (b) 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. (c) Post at its nursing home in Covington, Kentucky, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .4 IT IS ALSO ORDERED that the complaint be dis- missed insofar as it alleges violations by Respondent of Section 8(a)(3) and (1) of the Act by discharging Judy Guy on or about August 30, 1971, and Juanita Smeal on or about August 24, 1971, and insofar as it alleges violations by Re- spondent of Section 8(a)(1) by acts and conduct not express- ly found violative herein. 3 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 " 4 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 Respondent has taken to comply herewith."