Avon Convalescent Center, Inc.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Avon Convalescent Center, Inc and National Union of Hospital and Nursing Home Employees, Local 1199H, an affiliate of Retail, Wholesale, Depart- ment Store Union, AFL-CIO Avon Convalescent Center, Inc and Service, Hospital, Nursing Home and Public Employees Union, Local 47, Service Employees International Union, AFL-CIO Cases 9-CA-6316 and 9-CA-6529 December 4, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 11, 1972, Administrative Law Judge' William Feldesman issued the attached Decision in this proceeding Thereafter, the Respondent filed exceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Avon Convalescent Center, Inc, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order 1 The title of Trial Examiner was changed to Administrative Law Judge effectr a August 19 1972 2 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 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 3 We do not adopt the Administrative Law Judge's finding in In 3 that irrespective of the intentions of Craft and Osborne their uninvited entry into the meeting would have constituted a violation of Sec 8(a)(1) by Respondent TRIAL EXAMINER'S DECISION WILLIAM FELDESMAN, Trial Examiner These cases were consolidated on December 2, 1971, and tried before me in Cincinnati, Ohio, on January 17, 18, 19, and 20, 1972 The charge in Case 9-CA-6316 was filed on June 11, 1971, by National Union of Hospital and Nursing Home Employ- ees, Local 1199H, an affiliate of Retail, Wholesale, Department Store Union, AFL-CIO, herein called Local 1199H, and a complaint was issued thereon by the General Counsel on August 27, 1971, against Avon Convalescent Center, Inc, Cincinnati, Ohio, herein called the Respon- dent The original charge and amended charge in Case 9-CA-6529 were filed on October 14 and November 11, 1971, respectively, by Service, Hospital, Nursing Home and Public Employees Union, Local 47, Service Employees International Union, AFL-CIO, herein called Local 47, and a separate complaint was issued thereon by the General Counsel on December 2, 1971, against the Respondent The Respondent filed answers to the com- plaints on December 23, 1971 The complaint in Case 9-CA-6316 alleges that the Respondent, on or about June 7, 1971, conunitted an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act by engaging in surveillance of a Local 1199H meeting And, as amended at the hearing, the complaint in Case 9-CA-6529 avers that the Respondent, between August and October 1971, committed unfair labor practices in violation of Section 8(a)(1) of the Act by threats, warnings, intimidat- ing statements, surveillance, and a rule against solicitation, all in relation to the Local 47 activities of its employees, and in violation of Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate 14 named employees "because of their sympathies for, membership in and/or activities on behalf of" Local 47 The Respondent denies the commission of any unfair labor practices, and it also controverts allegations that certain named persons were its agents and its "supervisors" as defined in Section 2(11) of the Act, and that it is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act The issues thus raised are for the most part factual, requiring findings from the evidence as to the essential facts, including resolutions of conflicting testimony, and the drawing of inferences from those facts, although some legal questions have also been presented, principally with respect to jurisdiction, surveil- lance, and the Respondent's rule against solicitation Upon the entire record, after seeing and hearing the witnesses and observing their demeanor on the stand, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT All parties stipulated, and I find, that the Respondent is an Ohio corporation engaged in the business of operating a proprietary nursing home in Cincinnati, Ohio, that during the 12 months preceding the hearing in these cases, which is a representative period, the Respondent received gross revenues in excess of $100,000, and that during the same representative period the Respondent "had an indirect inflow of goods and services valued in excess of $5,000 which it purchased from suppliers located within the State of Ohio who, in turn, purchased the same goods directly from points outside the State of Ohio " I find upon the foregoing that the Respondent's "inflow" is not de minimts, that the Respondent is and at all material times has been 200 NLRB No 99 AVON CONVALESCENT CENTER, INC 703 an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction in these proceedings Sunshine Convalescent Hospital, Inc, 187 NLRB No 98 (1971), Somerset Manor, Inc, 170 NLRB 1647 (1968), Aurora City Lines, Inc, 130 NLRB 1137, 1138 (1961), enfd 299 F 2d 229, 231 (C A 7, 1962), see N L R B v Suburban Lumber Company, 121 F 2d 829, 832 (C A 3, 1941) II THE LABOR ORGANIZATIONS INVOLVED I find, as the Respondent admits in accordance with allegations in each complaint, that Local 1199H and Local 47 are and at all material times have been labor organizations as defined in Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Respondent's Surveillance of the dune 7, 1971, Meeting Held by Local 1199H In May and early June 1971 David H Jones, organizer for Local 1199H, distributed leaflets at a number of nursing homes in Cincinnati, including that of the Respondent, in connection with a citywide organizational meeting of nursing home employees which Local 1199H had scheduled for June 7, 1971, at its Cincinnati offices at 1015 Vine Street The Respondent is one of 11 or 12 nursing homes owned in common and forming a chain or group known as Keller Nursing Homes Gerald Keller, the dominant official of that organization and the president of the Respondent, is referred to in the record as the "owner" of the chain Donald Reckner, the Respondent's operations manager, who the Respondent concedes in its brief is a "supervisor" within the meaning of the Act, serves in the same capacity for other nursing homes in the Keller group, performing overall duties not only for the Respondent but also for these other homes At a central office for the chain, other officials likewise extend their activities to the Respondent and other homes in the group Applicants for employment by one home in the group are apparently sometimes referred to and hired by another home in the chain The Respondent has employed workers sent to it under this practice It also employed at least one employee transferred from another home in the group Reckner, all during the period under consideration in this proceeding, had control and charge of the Respondent's nursing home and its operations In November 1971 Reckner was formally appointed as the Respondent's administrator, thus adding to other titles conferred upon him in his employment by the Keller group During the course of his activities at the Respondent's nursing home, Jones on one occasion about June 1, 1971, met David F Craft, the Respondent's assistant administra- tor, who the Respondent in its brief also concedes is a "supervisor" within the meaning of the Act Jones and Craft mutually introduced themselves, each identifying himself to the other by his name and his position with his organization Upon parting, as Jones credibly testified without contradiction, Jones told Craft that they "would be seeing a lot of each other " On June 7, 1971, Local 1199H held its scheduled citywide organizational meeting at its Vine Street address Many workers from various nursing homes in Cincinnati attended, but none of the Respondent' s employees came About 15 or 20 minutes after the meeting started, Craft arrived with Marga E Osborne, who described herself in her testimony as a licensed practical nurse, as having been, among other things, Craft's assistant and the Respondent's social services assistant, and as having performed "whatev- er duties are required," including hiring, screening, and laying off personnel and helping "with the decision of whether we keep them or whether they're qualified, and so on " In its brief the Respondent acknowledges that Osborne is a "supervisor" within the meaning of the Act Both Craft and Osborne entered the meeting place-the offices of Local 1199H As Craft was about to "sign in," Jones recognized him, and, as Jones testified, "informed him that he would have to leave, that supervisors were not allowed in the meeting " As Jones further testified, Craft told Jones "he felt that he could stay or he did have a right to stay, or something to that effect," but Jones announced "Well, you are not going to stay in this meeting " At this point Craft and Osborne left the offices Craft did not testify, but Osborne explained their presence in the meeting place as follows "We had gotten word that they were going to organize a union in the nursing homes We had gotten word from other nursing home operators The understanding we had was that they wanted all of us there-admimstrators, assistants, and so on-to bring the union into the nursing homes There were several other administrators, owners, and other people from other nursing homes down there when we met " Soon after they left the meeting, Craft and Osborne entered Craft's automobile, which was parked directly in front of 1015 Vine Street, and sat in it As Osborne testified, they remained in the car for about an hour and a half At the end of the meeting, a few of the nursing home employees who were in attendance called Jones' attention to the fact that Craft was outside the building and had not left the vicinity Jones then approached the car in which Craft and Osborne were sitting, and, as Jones further testified, told Craft that unfair labor practice charges would be filed "for his presence at that meeting and the fact that he was still there " Jones additionally testified, and I find, that he then "went back into the building and out the back door and came back around through the alley beside the building and [Craft] was still there," that he again walked to the car and told Craft that "You might as well leave, because we have slipped your workers out the back door, and you are going to be sitting here by yourself," and that Craft then "drove away " 1 For remaining in the car parked in front of the Vine Street meeting place for an hour and a half, until the meeting ended, and Craft was rebuked, not once, but twice, before she and Craft left the area, Osborne offered the following explanation "The Kroger Building is across the street, and there's a guard over there that I know, and I I Osborne confirmed in her testimony that she and Craft were who approached them as someone other than Jones and the language used admonished for their presence in the parked car but described the person by that person as somewhat different 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went over to see whether he was free, and waited, asked him if he had some time, that we were across the street, that I wanted to talk to him So I sat out there" Her explanation is manifestly lame and unpersuasive I am convinced and find that Craft and Osborne lingered so long in front of the union meeting place, after they were ejected from the meeting, for the purpose of keeping the meeting and its participants and invitees under surveil- lance This course of conduct immediately after their ejection, and the complete absence of probative evidence to indicate that Local 1199H invited the managerial staff of the Respondent-or of any other nursing home employer -to attend the meeting, negate Osborne's vague and unsupported testimony that "The understanding we had was that they wanted all of us there-administrators, assistants, and so on-to bring the union into the nursing homes," and warrant the finding, which I make, that Craft and Osborne had earlier entered the meeting place for the very same purpose to engage in surveillance of the meeting and its participants and invitees 2 I conclude and find that by such surveillance in and near the meeting the Respondent deliberately set out to learn of the interest of its employees in Local 1199H and of any of their activities on that union's behalf, and thereby violated Section 8(a)(1) of the Act,3 notwithstanding that none of its employees were present at the meeting, for its employees were invitees and as such free under Section 7 of the Act to attend or not to attend the meeting, and to engage or not to engage in other and further union activity, unmolested and without interference by the Respondent See N L R B v Baldwin Locomotive Works, 128 F 2d 39, 50 (CA 3, 1942), N L R B v Grower Shipper Vegetable Assn, 122 F 2d 368, 376 (C A 9, 1941), Bethlehem Steel Co v N L R B, 120 F 2d 641, 647 (C A D C, 1941) "Casual examination of the dictionary discloses that a person may be interfered with, restrained or coerced without knowing it " N L R B v Grower-Shipper Vegetable Assn, supra at 376 Moreover, the open presence of Craft and Osborne at and in front of the meeting place was observed by at least one union official and by employees of nursing home employers other than the Respondent, employees who were in attendance at the meeting, and the meeting was citywide in scope Also, the considerable interrelationships of the various homes, including the Respondent's, constituting the Keller chain, have already been specifically noted Under these circum- stances there was a real likelihood that the Respondent's employees would hear of the surveillance by Craft and Osborne, and that it would have a tendency to inhibit them in the future in the exercise of their Section 7 rights This, too, supports the finding I have made that by the surveillance of Craft and Osborne the Respondent contra- vened Section 8(a)(1) of the Act 2 Osborne testified that about a year before an official of some labor organization had been invited by the Respondent to address its employees at its nursing home and that she had been the one that gathered the employees to participate in the meeting that he had to see about organizing a union But this was hardly a reasonable basis on which to assume that she and Craft were welcome to attend Local 1199H s citywide meeting a year later 3 1 also find that irrespective of the intentions of Craft and Osborne B The Respondent's Rule Against Solicitation Since about February 1971 the Respondent has been generally distributing to new nonprofessional employees as they are hired a document entitled "Policies, Rules and Regulations for Non-Professional Personnel " Beside the marginal notation "Solicitation," the document contains prohibitions against distribution of literature and against solicitation, broad enough in compass to envelop union literature and union solicitation The rule forbidding solicitation reads as follows During working time employees shall not solicit for any purpose or cause in any area of the Employer, and in public areas of the Employer when open to the public such solicitation shall not take place by employees at any time At the hearing the General Counsel was permitted to amend the complaint in Case 9-CA-6529 to add an allegation that the Respondent violated the Act by "promulgating, maintaining and enforcing a no-solicitation rule which prohibits employees from soliciting orally for the union in work areas during their nonwork time " In his brief the General Counsel elaborates, attacking only the first portion of the above-quoted rule, that part which reads "During working time employees shall not solicit for any purpose or cause in any area of the Employer "4 He contends that in the absence of special circumstances, neither claimed nor proved by the Respondent, this language is presumptively invalid and violative of Section 8(a)(1) of the Act Equating the phrase "working time" with "working hours," he argues that the precise scope of this prohibition is "ambiguous, that the risk of ambiguity must be held against the promulgator, and that the use of `working hours' may be readily understood as prohibiting solicitation during the course of the working day " To support his argument he refers to two cases Farah Manufacturing Company, 187 NLRB No 83, and Campbell Soup Company, 159 NLRB 74 In the Farah case the Board, in considering a rule banning distribution of literature "during working hours," concluded that it violated the Act because of its ambiguity, the risk of which "must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it," citing N L R B v Harold Miller, 341 F 2d 870, 874 (CA 2), enfg 148 NLRB 1579, and observed that "the terms of the rule may be readily understood as prohibiting the distribution of union literature by employees on their own time during the course of the working day "(Emphasis supplied ) In the Campbell case, the Board affirmed the holding of the Trial Examiner that a rule against distribution "during employees' working time," and a rule against solicitation "during Company working hours," were both unlawful, because such "adjective phrases are so broad and their uninvited entry into the meeting in itself constituted a violation of Section 8(a)(1) by the Respondent 4 Apparently in recognition that a nursing home is not a plant or factory and that the Respondent owes special obligations to its patients and on their behalf to their families and their visitors Whatever the reason, the validity of the second part of the rule has not been placed in issue at least not in this proceeding AVON CONVALESCENT CENTER, INC 705 indefinite as to embrace activities of nonworking employees during the times that others are working " (Emphasis supplied) 159 NLRB at 82 Thus, in the Campbell case the Board did establish the equation the General Counsel presents between "working hours" and "working time," at least when it is not clear that in the use of the phrase "working time" the ban encompasses only the actual worktime of the employees directly engaged or involved in the act of solicitation or distribution "Working time is for work" is a generally accepted maxim in labor relations It obviously connotes a time when work is actually performed, and not all of the interval between clocking in and clocking out, which may also include paid rest and meal periods and the like, and it just as obviously refers to the time the worker in question-and not any other-should be performing his work The limited phrase "working time" by itself may be a term of art for labor relations lawyers and experts, conveying to them the full sense of the entire maxim, perhaps even in a murky verbal setting, but it is scarcely to be expected that employees will readily understand the meaning of the phrase, and regardless of the context in which it is used In the case at bar, the language under attack is unclear, especially from the viewpoint of the workers to whom it is addressed It cannot be determined in context whether "During working time" means only actual working time, and not paid periods in the workday when compensation is received but work is not performed, and only of the solicitor (or of the particular person or persons solicited) As the prohibition assailed by the General Counsel is as ambiguous as those in Farah and Campbell to which reference has been made, the holdings of those cases are applicable here The risk of ambiguity must fall on the framer of the rule and not on the employees who are placed under its proscription I find that the Respondent violated Section 8(a)(1) of the Act by maintaining an unduly broad no-solicitation rule which employees could reasonably construe as prohibiting them from being involved in union solicitation during their nonwork time in any part of the Respondent's premises 5 C Other Interference, Restraint, and Coercion by the Respondent 1 The supervisory status of Mary Angst, Gilbert Ruth Burton, Irene Woerly, Georgia Burwell, and Gail Patton The General Counsel contends, and the Respondent denies, that Mary Angst, Gilbert Ruth Burton, Irene Woerly, Georgia Burwell, and Gail Patton were at all material times "supervisors" within the meaning of Section 2(11) of the Act, or otherwise agents of the Respondent or persons whose conduct is attributable to it Some reference has already been made to the Respondent's managerial 5 No useful purpose would be served by discussing the averment in the amended complaint regarding work areas for the Respondent may blanket all of its property by a prohibition aimed solely at employees directly involved in solicitation during tunes they are supposed to be performing work Furthermore such discussion would necessarily entail consideration of the second portion of the rule-whether work areas envisage not only nonpublic areas but also public areas' even when open to the public -and the legality of that portion has not been questioned in hierarchy In its brief the Respondent admits that Reckner, its operations manager, answerable not only to it, but also to Keller Nursing Homes, is a supervisor for whose actions it is responsible Similarly, the Respondent concedes in its brief that Craft, its assistant administrator (the Respondent characterizes him in its brief as being in effect the resident manager of its nursing home), and Osborne, its social services director (the Respondent designates her in its brief as being in effect the director of personnel of its home), are supervisors for whose behavior it is accountable Apart from these three, however, no other staff member, the Respondent insists, is a person whose actions may be ascribed to it This case grew out of the organizational activities of the Respondent's nonprofessional workers, chiefly its nurses aides and kitchen and laundry employees In addition to these rank-and-file employees and others, such as mamte- nance workers, the Respondent employs registered and licensed practical nurses All five employees whose status is in dispute are nurses Mary Angst is the director of nursing, and Gilbert Ruth Burton the assistant director of nursing All the licensed practical nurses and nurses aides work under the direction and control of Angst and Burton, who are subject to the supervision of only Reckner and Craft Burton is answerable directly to Angst, however Burton testified, and I find, that she is a registered nurse and a supervisor of the nurses aides, that she gives them "directions as to what they are to do at work" and this authority runs "throughout the whole nursing home," and that she can assign the aides from one work place to another and order them to work in the kitchen if necessary According to the Respondent, moreover, Angst was responsible for holding in-service meetings of the nurses aides at which instructions concerning their duties and responsibilities and warnings of disciplinary action for failure to discharge these obligations were allegedly conveyed to them by her Providing the patients in the nursing home with 24-hour service, 7 days a week, are three basic shifts of employees the day, starting in the morning at 7 o'clock and ending at 3 30 p in (it appears that there is another overlapping day shift, which commences at 8 30 a in and terminates at 5 30 p in ), the second, beginning at 3 30 p m and concluding at 12 o'clock midnight, and the third or night, starting at 11 30 p m and ending at 8 a m Burton and Angst are directly responsible for the day shift (or shifts) Irene Woerly, a licensed practical nurse, testified, and I find, that she supervises the second shift, that she circulates through the building and gives medi- cines, that she also gives "directions, work orders and assignments to the Nurses' Aides", and that she can "transfer them from one floor to another" and from aide work "to working in the laundry" if there were no one in the laundry and help were needed there this proceeding Similarly it is profitless to determine whether the promulgation of the rule concerned (which seems to have occurred more than 6 months before the filing of the original charge in Case 9-CA-6529) or its alleged enforcement (the General Counsel points to no specific instance of enforcement against a particular employee during his nonwork- ing time) violated Section 8(a)(l), as the Respondent will in any event be ordered to cease and desist from maintaining the rule 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia Burwell testified, and I find, that she is the night-shift supervisor in charge of six to seven nurses aides on the third or night shift, and that her duties are "to see that the girls are doing their work and taking care of the patients, and whenever the patient asks for something see that the patients are getting what they ask for, and we have cleaning that we are supposed to do each night " She testified further, and I find, that her supervisory functions extend to the kitchen employees and that she will "check to see that the food comes out properly, at the proper time, and see that the patients, the ones that have to be fed," are fed on time She also testified, and I find, that "Anything that happened during the night I would talk to Mrs Osborne before I would leave " The record clearly shows that "anything" also covers personnel matters Gail Patton, a licensed practical nurse no longer in Respondent's employ at the time of the hearing, normally worked on the day shift, having transferred to the second shift toward the end of her employment by the Respon- dent She was a floor nurse-a section of the nursing home having been entrusted to her care and placed under her authority At her station she had three to four aides under her supervision to whom she made work assignments As she testified, she was empowered like other nurses to write for the attention and consideration of her supervisors a disciplinary report or "pink slip on an employee, if they aren't performing the way they are supposed to " Angst and Burton were her immediate supervisors Any question of the power of Angst, Burton, Woerly, Burwell, and Patton responsibly to direct other employees and to assign them-substantively, and not routmely-is convincingly answered by the Respondent's "Policies, Rules and Regulations for Non-Professional Personnel," contained in a document which has been referred to above Among the rules governing the conduct of its nonprofes- sional workers are those relating to solicitation and distribution, already mentioned, appearance and dress, leaving the building without permission and other behav- ior, punching of timecards, absences, work assignments and schedules, smoking, and making or receiving tele- phone calls The document's last marginal heading is "Supervision," beside which is the following declaration "Those designated by Administrator along with the nursing staff shall enforce Policies, Rules and Regulations and Job Descriptions" (Emphasis supplied) Next to the marginal title, "Schedules," appears "Work assignments and sched- ules are posted in the nurses station on the floor you are assigned You are responsible to the floor supervisor and to the Administration and/or his assistants Lunch times are posted Report to the floor supervisor when going to and returning from lunch" (Emphasis supplied) And beside the marginal heading, "Job Assignments," is the wording "Employee must follow assignment of duties schedule as it pertains to shift and job category covered and nurse supervisor's directions " (Emphasis supplied) In a nursing home servicing elderly and sick patients whose critical needs may momentarily require variations in standard procedures, the nurse responsible for the supervision of other nurses or a shift or a section must obviously be prepared to exercise her discretion in utilizing her training and experience and assign and direct employees placed under her authority more than clerically or routinely Furthermore, power to enforce important personnel poli- cies, rules, and regulations is certain to require the exercise of independent judgment Although the record does not establish that the nurses here in question hire, fire, or mete out discipline or directly recommend such action, their power to enforce major personnel policies and rules, short of such authority, is compelling evidence that their direction and assignment of employees is substantial and meaningful The employees were notified of this power of the nurses and expected to obey their directions and assignments and interpretations of the Respondent's policies and rules I therefore find that each of the five nurses concerned was at all material times a supervisor, as defined in Section 2(11) of the Act, because she had authority in the interest of the Respondent to "assign" and "responsibly to direct" other employees, as comprehended by that section Testimony of nurses aides and other employees demon- strates quite plainly, moreover, that they regarded these nurses as superiors identified with management, an impression which all the foregoing facts indicate manage- ment helped to create and which it did nothing to dispel For this separate and alternative reason, I find that the Respondent is responsible for the conduct and statements of Angst, Burton, Woerly, Burwell, and Patton Ramar Dress Corp, 175 NLRB 320, 329 (1969), and Board and court cases there cited 2 Local 47's activities and the Respondent's reactions, other interference, restraint, and coercion In August 1971 Local 47 began its own campaign to unionize the Respondent's employees Apparently it replaced Local 1199H in organizational efforts among the Respondent's workers and intensified the drive to interest them in becoming union adherents Instrumental in Local 47's activities was Willie E Hampton, its representative, who filed the amended charge in Case 9-CA-6529 He solicited employees of the Respondent to join Local 47 and obtained from them signed application-for-membership cards Employee Annette Gibbs credibly testified without contradiction that around August 1 union organizers were out on the street near the home and there were rumors of union activities Indeed, Supervising Nurse Patton, in August, became aware, through rumors, of union attempts to organize the home Janell McCoy, one of the Respon- dent's nurses aides, signed a Local 47 card on August 19, 1971, when Hampton openly solicited her and four or five other employees as they were eating lunch between 1 and 2 p in in the yard near the front entrance of the home One other employee signed a card at the same time McCoy openly discussed the Union with friends on the job Ivry Brown, one of the Respondent's nurses aides, was approached by Hampton on August 25, 1971, while on her way home from work, and she then signed a Local 47 card She subsequently attended three Local 47 meetings and solicited her coworkers to join the Union She was successful in securing about 15 signed cards, which Hampton picked up at her home Among the Respondent's employees who signed union cards after receiving them from Brown were Victoria Selvie (signed on August 26, AVON CONVALESCENT CENTER, INC 707 1971), Jo Ann Bell (signed on August 26, 1971), Jessie Farmer (signed on September 5, 1971), Jeanette Barksdale (signed on September 8, 1971), Annette Gibbs (signed on September 8, 1971), and Linda Cruz (the date she signed a card is later discussed) Barksdale herself distributed to her coemployees five or six cards, which were signed and returned to her, and she attended two union meetings Hampton also obtained cards signed by employees Icilda James (on August 26, 1971), Charlotte William (on September 20, 1971), Wanda Allen (on October 1, 1971), and Sarah Vales (on September 2, 1971) Vales, in turn, secured a signed card from employee Letha Woodard (Woodard signed her card on September 4, 1971), Vales also attended union meetings and successfully solicited other employees And employee Mary Allen signed a card (on September 22, 1971) she received at Local 47's offices which, like those of Local 1199H, were located at 1015 Vine Street As indicated, almost all these activities took place in August and September 1971 All the foregoing 14 named nonsupervisory employees of the Respondent are alleged in the complaint in Case 9-CA-6529 to have been discnmmatonly discharged by the Respondent, James on August 26, 1971, the day she signed her card, and the rest less than 2 months later within a concentrated period in October 1971 Employee James signed her union card in the vicinity of the Respondent's nursing home while on her way to work on the morning of August 26 As she testified, Hampton approached her on the street near the nursing home, identified himself as a union representative, and asked her if she "would like to sign a card " She responded in the affirmative and proceeded to sign a Local 47 card After she finished signing, she walked toward the building, and, as she further testified, looked "across in the parking lot and I saw Mrs Osborne was leaning from against her car, going towards the building, and we both cast eyes on each other " About 10 a in, after she started to work, employee Ivra Brown asked her if she had signed a union card, and she answered "yes " Brown testified that on August 26 "Around ten minutes to seven in the morning I was in a patient's room looking out of the window, saw Marge Osborne drive into the back driveway and parked her car She got out of her car and went behind a big red truck that the maintenance men use, and Ind behind it and watched Mr Hampton on the street talking to someone I couldn't see who he was talking to " Brown further testified that later that day, when James told her that James had signed a union card, she told James that Osborne "had seen her and that if she or Mr Crafts asked her what did she sign to tell them that she signed a card to make Martin Luther King's birthday a national holiday " Osborne testified that on driving to work the morning of August 25 or 26 she noticed a man and woman standing on the sidewalk near the home's back parking lot entrance as she entered the lot She additionally testified that she "was cautious" when she parked the car and left it, as she "had been assaulted several tunes, and it's quite dangerous around the area there in the back parking lot, or even in the front as far as that goes " She further testified that "This has been some years ago, but it's still a fact that you dust look out when you go in, you just don't get out if you don't recognize people, and so on I did look around as I started to walk inside the side door and seen it was Icilda James The man who was with her, I don't know " Osborne denied hiding behind a red truck, but confirmed on cross- examination that the Respondent owns such a vehicle, which it uses to "haul furniture and foods, and different things that belong to the company," and that it is "sometimes" in the parking lot It has already been found that Osborne, together with Craft, engaged in unlawful surveillance of Local 1199H's citywide organizational meeting of June 7, 1971, and that explanations tendered by Osborne in that connection were unacceptable Around August 1 there were union organiza- tional efforts on the street near the home and rumors of union activity Hampton's overt solicitation on August 19, 1971, of five or six employees eating lunch in a group near the front entrance of the nursing home, has also been noted While some union activities were carved on secretly among the Respondent's employees, this particular occur- rence was not covert, and employee McCoy, who signed a Local 47 card that day, later discussed the Union openly with friends on the job Another employee in the luncheon group also signed a card on August 19 at Hampton's open solicitation The home employed a small complement of about 38 nonsupervisory employees, making it extremely likely that open information and discussion of union activity would quickly pass through the staff and become known to the Respondent and its supervisory personnel I infer and find from these facts that on the morning of August 26 Osborne was aware or suspected that there was union activity among the Respondent's employees, and that on that date she was as interested in learning of such activity as she had been in June 6 Moreover, Osborne acknowledged that she saw James with "a man" the morning of August 26 when she arrived at the home's rear parking lot, although she indicated she did not at first realize it was James James, the record shows, was well known to her She also conceded that on August 26 she moved with caution In explanation of her actions, she referred to assaults made on her some years before, but to no recent event to give her fresh cause for alarm in the daytime at the nursing home at the beginning of the day shift when employees would be reporting for work and she would not be alone Under all the circumstances, including Brown's forthright manner and generally favorable de- meanor on the stand, I credit Brown's testimony regarding Osborne's furtive behavior on August 26 in the home's rear parking lot and her concealment to observe unnoticed the activities of Hampton and James Based on the credible testimony of Brown and James, I conclude and find that on August 26, 1971, Osborne engaged in surveillance of Hampton's solicitation of James and James' union activity, 6 In so finding I have considered but do not credit Osborne s testimony were being made at the home Furthermore June was not so far in the that after June 1971 it was not until September 3 1971 that she learned distant past as to make its events meaningless in August through Supervising Nurse Georgia Burwell that organizational attempts 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the Respondent thereby violated Section 8(a)(1) of the Act 7 Sarah Vales testified that, in late August 1971, Irene Woerly, the supervisor of the second shift, on which Vales was then working as a nurses aide, walked into a room in which "most of the nurses' aides hang their coats", and that while Vales was hanging up hers Woerly told Vales and two or three other aides who were also present that she, Woerly, "had heard that a union was trying to be organized there, and for us not to sign the union cards if we wanted our jobs " Vales further testified that Woerly then "told me that personally" and "walked out " Woerly denied making the statements attributed to her by Vales I do not credit Vales' testimony, in the face of Woerly's denial, as I later find, in regard to the matter of the alleged discriminatory discharge of Vales, that Vales' testimony is inaccurate and unreliable Supervising Nurse Gail Patton denied Vales' testimony that, in October 1971, when Vales inquired of Patton "why they were firing all the girls," Patton replied that it was taking place because "there was going to be a union organized " I discredit Vales' testimony for the same reasons given with respect to the Woerly incident Charlotte William and Mary Allen testified to similar effect that, about October 1, 1971, 1 day after Osborne had come upon and regarded them and other nurses aides grouped together in a section of the home, Patton commented to them that Osborne had observed the aides and was "uptight" or "mad" because she believed they had been talking about a union Patton denied making these statements Given Osborne's previous concern about the unionization of the Respondent's employees and Local 47's organizational efforts at the time, it is not unlikely that Osborne voiced to Patton her apprehension that the employees grouped together were discussing a union and her unfavorable reactions to their conduct, and that Patton conveyed the sense of Osborne's expressions to William and Allen Accordingly, and in view of the mutual corroboration of William and Allen, and the fact that they impressed me while on the stand as trustworthy witnesses, I credit their testimony concerning Patton's remarks to them I find that, by these remarks, the Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights to join and engage in activity on behalf of a union, and that it thereby violated Section 8(a)(1) of the Act Annette Gibbs, who was employed by the Respondent as a nurses aide, testified that, also about October 1, 1971, as she approached one of the home's medicine rooms to get supplies and while she was unobserved, she overheard Burton, the assistant director of nursing, saying to Angst, the director, "There will be a lot of terminations before a union gets in " Burton denied that such a conversation with Angst ever occurred Angst was not called by the 7 This finding is no less warranted because Osborne may not have actually known who Hampton was It is sufficient-and I find-that she had reason to suspect that the transaction being conducted between Hampton and James was related to union activity In crediting the testimony of James and Brown, I have considered but regard as unimportant, inconsistencies therein to which the Respondent points in its brief These matters are inconsequential and peripheral and do not affect the main thrust of their testimony or otherwise indicate they are unworthy Respondent as a witness From my observation of the demeanor of Gibbs and Burton while they were on the stand, and considering that Burton was less than direct in giving testimony concerning her title and exact position with the Respondent, and that her denial was not corroborated by Angst, I credit Gibbs' testimony of Burton's remark to Angst I find that, by Burton's plainly coercive comment, overheard by Gibbs, the Respondent violated Section 8(a)(1) of the Act Ford Radio & Mica Corporation, 115 NLRB 1046, 1047 (1956), Colecraft Manufacturing Co, Inc, 162 NLRB 680, 686 (1967), cf McCann Steel Company, Inc, 184 NLRB No 90 (1970) Although the United States Court of Appeals for the Second Circuit reversed the Board on this point in the Colecraft case, 385 F 2d 998, 1004 (1967), and the United States Court of Appeals for the Sixth Circuit did likewise in the McCann case, 448 F 2d 277,278 (1971), I am of course bound by the Board's holdings unless and until the Board affirmatively adopts for the future contrary rulings of the courts of appeals, or the Board is reversed by the Supreme Court of the United States, neither of which has occurred here Novak Logging Company, 119 NLRB 1573, 1575-1576 (1958) Jeanette Barksdale, who was employed by the Respon- dent as a nurses aide and latterly in the kitchen and laundry, testified that, again about October 1, 1971, Supervising Nurse Burwell told her that she, Burwell, had been talking to Craft, the home's assistant administrator, and Craft "said he had to get rid of some of her [Burwell's girls because he had heard they had joined the union " According to Barksdale's further testimony, Burwell went on to tell Barksdale that she, Burwell, informed Craft that "she didn't think any of her girls had joined the union," and asked Barksdale if Barksdale knew "anything about it," to which Barksdale answered "no "8 Burwell denied having any conversation with Barksdale about remarks made to her by Craft or about the Union I credit Barksdale's testimony and discredit Burwell's denials, as Burwell did not impress me as a forthright witness while she was on the stand and her testimony confirms her lack of candor On cross-examination, for example, Burwell first denied knowing "anything about a union being at Avon," then said she "heard rumors," that "different ones talk about the union, but it didn't concern me," later conceded that she heard remarks about the Union "from a man down on the corner," that "some man down there on the corner, offered me a union card and I asked him to go up and give it to [Craft), that's how I know about the union," and subsequently insisted that when she had mentioned "different ones talking about the union," she was referring to "girls" from another nursing home located "across the street" whom she had seen talking to the man who had offered her a union card Also on cross-examina- tion Burwell first denied mentioning the Union to of belief particularly on the central issue of Osborne s surveillance of Hampton and of James card signing B Minor variations between Barksdale s testimony on direct examination and cross-examination are inconsequential and do not weaken the essence of her testimony related above that Burwell informed her of Craft's coercive and revealing statement and proceeded to question her in this context about her knowledge of union activities AVON CONVALESCENT CENTER, INC 709 Osborne, then acknowledged that she informed Osborne about being offered a umon card and telling the solicitor to give it to Craft I find that Burwell made statements to Barksdale, substantially as Barksdale testified By so doing, Burwell communicated to Barksdale a coercive remark attributed to Craft and in that intimidatory context interrogated Barksdale concerning her knowledge of union activities I conclude and find that by Burwell's statements and interrogation the Respondent violated Section 8(a)(1) of the Act Wanda Allen, who was hired by the Respondent as a nurses aide, testified that, at 2 30 in the morning of October 7, 1971, several hours before she was discharged that day, she heard a conversation between Burwell and Marie Graham, another nurses aide, whom Allen had sometime before told that she, Allen, "was thinking about joining a union " According to Allen, Burwell was in the middle of a sentence when Allen first heard her and said "the reason those [time] cards were pulled is because somebody had signed some union cards,"9 Burwell then asked Graham "could she give her any more names," Graham answered "Jeanette" (meaning Barksdale) and "Lillian" (whose last name is not revealed by the record), Burwell said "I know," Graham then added "Wanda" (meaning Allen) and "Charlotte" (meaning William), and Burwell stated, "Well, they are all going to go anyway, except for Lillian " Allen further testified that she made her presence known by shuffling her feet, that Burwell at that point asked her if she had signed a union card, that she told Burwell "that it didn't concern her", and that Burwell retorted, "If you did you are going to get fired, because they are going to fire a lot of girls around here because of the union " Burwell denied engaging in the conversations to which Allen testified or making the statements Allen ascribed to her For reasons already stated, I discredit Burwell's denials I credit the testimony of Allen and find that, by Burwell's coercive remarks that there would be discharges because of union activity and her interrogations concerning that activity, the Respondent contravened Section 8(a)(1) of the Act Victoria Selvie, who was employed by the Respondent as a nurses aide, testified that on October 7, 1971, after she and employee Jo Ann Bell were discharged, she offered Supervising Nurse Patton a ride in her car and Patton accepted While they were in her car, Selvie further testified, she asked Patton why she and Bell had been fired, and Patton answered, "Well, they know you all was in the union," and she then inquired, "How do you know we was in the union9", to which Patton replied, "I don't know" and added, "Don't worry, the other girls are going to get fired too " Selvie additionally testified that Patton in- formed her during the automobile ride that Director of Nursing Angst requested Patton "to write pink slips on the other girls" (thereby evidencing some dereliction of duty), but that Patton told Angst she would not do so because the girls had not done anything wrong, and that later Angst "called her in the office and asked her to even forget they asked her to write the pink slips " Patton admitted that, following Selvie's discharge, Selvie gave her "a lift" in Selvie's car, but testified that Selvie had asked her if Selvie had been discharged because of belonging to the Union and that she had answered, "No, I don't believe so," and that when Selvie stated that "everybody is being fired because they belong to the union" she rejoined, "No, they wouldn't terminate people for this reason " Patton denied telling Selvie that employees would be fired because of the Union Based on my observation of the demeanor of both Selvie and Patton while they were on the witness stand, I am of the opinion that Selvie is the more dependable witness and therefore credit her testimony I find that the Respondent violated Section 8(a)(1) of the Act by Patton's statements to Selvie to the effect that employees had been and would be discharged because of their union activities Jessie Farmer, employed by the Respondent as a nurses aide, also testified to remarks by Patton, which if made would infringe upon employee Section 7 rights and violate Section 8(a)(1) According to Farmer, as she was entering the nursing home on October 8, shortly before she was discharged that day, she met Patton, her supervisor, who told her that "they had Jo Ann Bell, and Vickie Selvie", that "they were going to write a pink slip up on" Farmer, having already written pink slips on Bell and Selvie, and that Patton would not write a pink slip on Farmer as she had no reason to do so Farmer testified further that when she "asked her the reason why," Patton replied, "because [they] signed a union card " But in her prehearing statement given to the General Counsel, Farmer fixed the time of this conversation as immediately following her discharge, as she was leaving the building, and she gave the following version of the conversation "I said `hey, Pat what's going on around here ' She said `it is because you all joined the union' That's all that was said" As for the matter of pink slips, Farmer in her prehearing statement continued "The day before I was fired Victoria Selvie called me at home and told me Patton was going to write a pink slip on me She also said Pat told her she wasn't going to have anything to do with it because we did our work well " Patton testified that she met and spoke to Farmer that morning, outside the building, as Patton was entering it to report for work, that Patton asked Farmer, "Where are you going9", that Farmer replied "I'm fired", and that Patton said "Oh " Patton denied telling Farmer that she was fired because she had signed a union card or using words to that effect Insofar as the conversation in question is concerned, there are sufficient meaningful differences between Farmer's testimony at the hearing and her prehearing statement, apart from that related to the time of the conversation, to cast substantial doubt on her reliabili- ty as a witness to this event, also taking into account Patton's conflicting version and denials Consequently, I do not credit Farmer's testimony about this episode D The 14 Discharges As already indicated, the General Counsel contends that the Respondent discharged 14 employees, mentioned above by name, for their union activities, and that it 9 Allen s own timecard had been pulled when she reported for work on subsequently discharged on October 7 but other employees were also fired October 6 for the mght shift, but Burwell furnished her with another and about the same time Pulling a timecard was a sign of termination But had her sign it and punch in As later found not only was Allen Allen was permitted by Burwell s action to continue to work 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby violated Section 8(a)(3) and (1) of the Act The Respondent asserts, however, that it fired these employees, and each of them, for cause unrelated to their umon activities, and that it therefore did not commit any unfair labor practices by such actions Each of the 14 employees signed before her discharge a Local 47 application-for- membership card and some engaged in additional union activity The Respondent's reactions and unlawful con- duct, found above, must also be considered in determining in each of the 14 cases whether it discharged the employee for cause or because of her union activity Except for Icilda James, they were all separated in October 1971 With respect to most of the October severances, the Respon- dent's principal defense is that these employees, together with others, had poor attendance records, and that their replacement by more dependable personnel became essential to avert serious financial injury It faced such injury, the Respondent's main defense continues, because it was confronted in October with imminent loss of Medicare accreditation under Title XVIII of the Social Security Act and, more important, loss of Medicaid accreditation under Title XIX of that act, for, among other things, inadequate nursing services, in terms of hours worked, which was allegedly caused in large measure by excessive absence and tardiness among the nurses aides Around October 1, 1971, the Respondent had 155 patients, all but 6 of whom were financed under Title XIX, which required the Respondent's nursing home to be a skilled care facility and hence to satisfy higher standards in order to receive the larger fees permitted in consequence ($14 per patient per day, as compared with $11 per patient per day as a nursing home and $6 50 per patient per day as a rest home) Insisting that this defense is a facade, the General Counsel argues in his brief that the Respondent knew of the attempts to organize its home and that Operations Manager Reckner "seized upon previously-condoned absenteeism as a pretext to make a clean sweep of his employees under the colorable justification of the impend- ing Title XIX decertification, thereby dissipating the inroads made by the Union among his employees " The Respondent's chief defense and its other defenses and contentions are later discussed and considered in detail A different reason than excessive absence or tardiness is assigned by the Respondent for the discharge of Icilda James on August 26, 1971 James is a Jamaican The Respondent contends that it was hard to understand her because of her manner of speech, that she had difficulty communicating with patients and fellow employees, which resulted in "problems," and that this was the reason it discharged her James was employed by the Respondent on or about August 2, 1971, as a nurses aide On the day she was hired, Mrs Starks, the Respondent's receptionist, informed Osborne that James was a Jamaican and submitted James' application for employment to Osborne Osborne at that time conversed with James and hact an opportunity to hear how she spoke English Osborne participated in the decision to hire James James' slightly accented English gave no one at the hearing any real difficulty in comprehending what she had to say, counsel seemed to be able to question her and understand her as well as any other witness who testified The Respondent introduced into evidence three "pink slips" or disciplinary reports on James All were signed by Reckner as "Administrator" and by Osborne as the "Witness" to the event The first mentions August 5 as the "Date of Infraction" and states under "Remarks" that Jones "Does not follow schedule properly Working on area not assigned to," the second fixes August 16 as the "Date of Infraction" and recites under "Remarks" that "Male patients complaining of asking for a shave and Aide did not shave them pass [sic] two days", and the third refers to August 25 as the "Date of Infraction" and sets out under "Remarks" that "Patient complaining that when they call aide for service she does not respond right away Some time a half hour later " Osborne testified that she placed the last slip on Craft's desk on August 25 with a note that this was "the third disciplinary on" James, and that Craft discussed the slip with Osborne the following day when Osborne again informed him "this was her third warning," and he said he would talk to James and take care of the matter later Osborne further testified that she had investigated the complaints that gave rise to the reports, that she told James that James had "some disciplinary sheets against her but I don't think she understood what I was trying to explain to her, and that she had spoken to James about not following the schedule for her work assignments Osborne also testified that under the Respondent's practices three "pink slips" called for automatic discharge of the affected employee She addi- tionally testified that James' coworkers "giggled" at the way James talked and "mocked" her Osborne conceded that she did not tell James when she was hired of a "three pink slip-automatic discharge" rule 10 and did not show her any of the skips introduced into evidence 11 James testified that no complaints were ever made to her about her speech, that many patients told her "Oh, I like to hear you talk," and that neither Osborne nor anyone else ever said "anything" to her before August 26, the day of her discharge At 3 30 p in that day, as James testified without contradiction, Craft told her she was "terminated," informing her there was nothing wrong with her work, but he had "a complaint the nurses and the patients cannot understand your language " James was a straightforward witness, and Osborne, as already noted, was not I credit James' testimony that no complaints about her speech or "anything" were made to her by Osborne or any other management official before 3 30 p in on the day of her discharge Most significantly, it was on the morning of that day, August 26, that Osborne surreptitiously watched as Hampton solicited James' umon membership and she signed a Local 47 card All three of the pink slips were signed by Osborne as the "Witness " Osborne initiated James' discharge presumably based on a claimed rule of automatic separation of which James had 10 No such rule appears in the Respondent s written Policies Rules and issued on the date indicated above, which is the Date of Infraction, and Regulations for Non-Professional Personnel which have been referred to will be made a part of the permanent and official record of employment of earlier the employee 11 The printed pink slip form states that the `warning set forth was AVON CONVALESCENT CENTER, INC 711 not been informed and which, insofar as the record shows, did not exist in writing, although, as I have indicated, other rules for employee behavior did No pink slip was signed by any nurse James was aiding, notwithstanding that matters such as not following instructions concerning work assignments and complaints from patients about lack of service would appear to come to the supervising nurse's attention in the first instance Moreover, the inescapable fact remains that James' speech is quite intelligible I find, from all the foregoing facts, that James was discharged on August 26, 1971, not for the reasons the Respondent advances, but because of her known or suspected union activity, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act Surveillance is not an empty act Perhaps its principal evil lies in the fact that information derived from it is usually put to some illegal use All 13 of the remaining discharges occurred between October 7 and 21, 1971 Before October 7, all 13 employees concerned, with the possible exception of 1 (Cruz), had signed Local 47 cards, and some had engaged in other union activities such as soliciting Local 47 memberships and attending Local 47 meetings Before October 7, the Respondent had committed the unfair labor practices of surveillance of Local 1199H's June 7 citywide meeting, surveillance of Hampton and James on August 26, the discriminatory discharge of James on August 26, mainte- nance of an unduly broad rule against union solicitation, and utterance of coercive remarks and interrogation by supervisors about October 1 Also, on October 7 the Respondent engaged in additional unfair labor practices through coercive statements and interrogation by supervi- sory personnel Furthermore, its supervisors' utterances disclose the Respondent's antagonism to the unionization of its employees and its readiness to dismiss them for such activities After the discriminatory discharge of James and the unlawful surveillance activities of Osborne and Craft, statements made by Patton, Burton, and Burwell reveal more than the opinion of lesser supervisors They demon- strate an antiumon position of the Respondent taken at higher levels In fact, Patton in one of her statements directly involved Osborne, and Burwell in one of hers specifically implicated Craft The Respondent employed a normal full complement of about 35 nurses aides and laundry and kitchen workers, classifications to which the 13 belonged, the 13 represented approximately 40 percent of all such workers It is in this setting that the Respondent's defenses relating to the 13 remaining separations must be appraised Reference has already been made to the Respondent's chief defense which covers most of the 13 Before August 1971 the Respondent was deficient in a number of respects in meeting the requirements demanded of its nursing home under Titles XVIII and XIX of the Social Security Act Reckner testified to "deficiencies in services, lack of number of hours as far as the Aides were concerned, and nurses, there were deficiencies in physical plant-an example would be installation of the sprinkler system throughout the building " Once a private house, the building is 50 years or more old At various tunes, beginning about 1951, wings were added to the building In August, Reckner further testified, there was a "follow-up" inspection conducted by officials of the State of Ohio responsible for verifying whether Social Security Act standards were being met, and they determined by examination of the Respondent's work schedules and "call- off" notations thereon that the Respondent was "deficient in the number of hours worked by employees " These work schedules were not introduced into evidence by the Respondent, Reckner testified work schedules were "usu- ally" not retained by the Respondent for more than 30 days Reckner also testified that under applicable regula- tions 1 attendant-or aide-was required to be on duty for every 25 patients, 1 registered nurse was required to be on duty 8 hours a day, 7 days a week, for all 3 shifts, for more than 99 patients, and 3 licensed practical nurses were required to be on duty at all times, for 150 patients The Respondent did not officially learn of the determination that there was a deficiency in nursing services until it received a letter dated September 7, 1971, from the director of the Ohio Department of Public Welfare That letter reads as follows Avon Convalescent Center, Inc 6922 Ohio Avenue Cincinnati, Ohio 45236 Re Staffing deficiencies Dear Sir We have been advised of the staffing deficiencies in your facility The Shortages are as follows R N 76 hours, L P N 292 hours and Aide 152 hours This is a total of 368 hours weekly and represents nine full time people As you know, proper staffing is a statuatory [sic] requirement and must be complied if you are to remain eligible for vendor payment under Title XIX This deficiency must (1) be corrected within 30 days of receipt of this letter or (2) a sincere letter of intent (documenting specifically what effort is being made to fill these vacancies) must be sent to Ohio Department of Health 450 East Town Street Columbus, Ohio 43215 Attn Miss Ruth Minteer, R N Title XIX Certification Officer Decertification of your home has already been recom- mended Failure to comply with the statuatory [sic ] requirements leaves no choice but to reclassify Avon Convalescent Center as an Intermediate Care Facility I Further, we are requesting that the Hamilton County Welfare Department and Longview State Hospital do not place any more welfare patients in your facility until the above mentioned deficiency is corrected Please direct any further comment to Frederick J Zuber, Chief Division of Medical Assistance 340 East Broad Street Columbus, Ohio 43215 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sincerely, JEH/cas cc District Office-MAC Ruth Minteer, R N -ODH JOHN E HANSAN Director On October 1, 1971, because of additional hirings in September, the Respondent was, according to Reckner, "all right on our schedule," in fact had more than it needed, insofar as nurses aides were concerned But it did not have a sufficient number of registered nurses or licensed practical nurses, for these employees were in short supply, particularly in the Cincinnati area On the evening of October 5, the Respondent received from the director of the United States Bureau of Health Insurance Social Security Administration, the following telegram Based on findings and recommendations of the Ohio State Department of Healt [sic], the Social Security Addmimstration [sic] has determined that Avon Convalescent Center no longer meets the health and safety requirements for participation in the health insurance for the aged program (Medicare) Due to serious deficiencies of longstanding duration, the Avon Convalescent Center does not meet Medicare statutory requirements for nursing service , Section 1861 (1)(6), of the Social Security Act Additionally, we find it is not in substantial compliance with the following regulatory conditions of participation Section 405 1130 (social services) and Section 405 1134 (physical environment) Medicare participation agree- ment being terminated effective October 25, 1971 No payments under the health insurance program may be made for services furnished to any individual who is admitted to Avon Convalescent Center on or after that date The Bureau of Health Insurance Regional Office in Chicago will arrange to publish a routine notice in the Cincinnati Inquirer Detailed letter explaining all deficiencies and informing you of appeal rights will follow within a few days Reckner testified that he learned of the telegram on the morning of October 6 and that afternoon met with Osborne and Craft Decertification under Title XVIII, he further testified, inevitably meant decertification under Title XIX-and the latter concerned him greatly as virtually all the Respondent's patients were financed under Title XIX The letter of September 7 had indicated, moreover, that decertification under Title XIX had already been recommended At his meeting with Osborne and Craft, Reckner had with him a "payroll hour sheet on employees," which showed the hours worked by each employee of the Respondent for seven consecutive biweek- ly payroll periods, the first ending on July 3, 1971, and the last on September 25, 1971 Reckner testified that from this document he determined, on the basis of the norm of 80 hours of work each biweekly payroll period, who had been excessively absent or tardy, that he circled the subpar hours worked by such persons, and that he instructed Osborne to fire them "according to the schedule, and as new employees came in-what we already had on the schedule, to work it around to where we still had coverage " He also testified that "our problem had been excessive absenteeism, and tardiness, and this is where we had to start the corrective measure to correct the situation " The plain import of his testimony is that this was a "meat axe" approach-it made no difference what justification there may have been for absence or tardiness, whether employees had been warned about it, or whether it had been excused or condoned-and that the employees found wanting solely on the basis of the cold payroll hour sheet were to be discharged The list given to Osborne, Reckner testified, contained the names of 18 employees, including Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Janell McCoy, Victoria Selvie, and Letha Woodard, 8 of the remaining 13 employees who are involved in this proceeding Although the acute problem concerned only nurses aides, Reckner further testified that kitchen and laundry workers were also affected by his directive RN's and LPN 's were unaffected, Reckner stated, because they could not be replaced at the time Osborne testified that on October 6 Reckner gave her a list of employees to be discharged because of "not enough hour coverage and excessive absenteeism," and that she was instructed by him "also that probationary employees-that we were not to wait any length of time, give them a few days to see how they work, any other deficiencies that we had that we feel like they're not doing, not to keep them, to bring in new help and see if we couldn't get the place to where it should be organized and be done properly to have the patients taken care of and correct any complaints that we've had " Thereafter, John E Hansan, the director of the Ohio Department of Public Welfare , sent the Respondent a second letter, dated October 18, 1971, which reads as follows This letter will serve written notice to you, that, pursuant to relevant sections of 45 CFR 250, the Ohio Department of Public Welfare is proposing to decertify you from vendor payments made under Title XIX of the Social Security Act effective November 3, 1971 The action is being taken for the following reasons Nursing Services Persistent deficiencies exist in the nursing staff Reports submitted on February 17, 1971 and August 12, 1971 by the survey agency has reported shortages in R N 's, L P N 's and aides The plan of correction provided by Donald Reckner, Operations Manager of Avon Convalescent Center, on October 7, 1971, shows some improvement, but is still lacking 112 hours weekly in nursing coverage Physical Environment On April 12, 1971, the president of the corporation, Gerald Keller, advised the Acting Commissioner of Health in Cincinnati that a sprinkler system was in the process of being installed with a copy directed to the Ohio Department of Health and to Mr John E Hansan, Director of the Ohio Department of Public Welfare AVON CONVALESCENT CENTER, INC 713 However, on July 7, 1971, Russell K Dafler visited the facility and found that no work had started on that date Some preliminary work on measurements followed this visit Emergency outside lights were not installed as of the July 7, 1971 visit Emergency power to the heating plant was not provided as of July 7, 1971 visit The elevator was not installed Consultation was given to Mr Reckner of the company manage- ment team to set the elevator at the present site of the fire escape on the south side of the courtyard The fire escape would need to be moved The nurse call system has been a persistent deficiency since the requirements for Title XIX were effective on January 1, 1970 Hot and cold running water was not provided in one area where medications are prepared Cubicle curtains were not procured by the July 7, 1971 visit Lavatories have not been installed in the follow- ing areas End of Wing 3, Top Level End of Wing 3, Bottom Level Second Floor, Main Building The isolation room has no bathing facilities The examination room is occupied by a patient Life Safety Code The folding doors were re- moved but not replaced with other doors There are no emergency outside lights Section 5-11121-not in compliance, temporary signs were put up-but have disappeared Section 10-2331-interior finish not in compli- ance Section 10-2341-not in compliance for Title XIX-must have sprinkler throughout home Section 10-2351-not in compliance (fire rated doors if sprinklers are installed) Sanitation On the August 12, 1971 visit, flies were noted on the water carafes and patients drinking from same and flies on the food trays The concensus is that a potential hazard to the health and safety of the patients in the Avon Nursing Home does exist You have a right to a state hearing on this proposed action Your rights under this due process hearing are found at 45 CFR 205 10, except to the extent that 45 CFR 205 10 requires that the Ohio Department of Public Welfare continue payments to you during the pendency of your request for a state hearing Among the rights provided you have the right to be represented or to represent yourself personally, and the right to have a state hearing if you request the same within fifteen days of the mailing of this letter However, we wish to make it clear that you do not have a right to a due process hearing prior to the decertifica- tion which we have proposed Thus, even if you request a state hearing within fifteen days of the mailing of this letter the Ohio Department of Public Welfare will proceed to decertify you on November 3, 1971 Upon careful analysis, the Respondent's defense reveals many infirmities and for that reason must be rejected As already noted, Reckner testified that he furnished Osborne with the names of 18 persons, including 8 of the employees with whom this proceeding is directly concerned, whose attendance records were particularly poor, and that he directed that they be discharged The list of employees with the hours they worked for seven consecutive payroll periods, which has been referred to above, was received in evidence as the Respondent's exhibit Also admitted in evidence as an exhibit of the Respondent was a similar sheet containing the names of employees and the hours they worked not only for the seven biweekly payroll periods on the first list, but also for seven successive biweekly payroll periods beyond, up to and including that ending on January 1, 1972-in other words, a continuation sheet and purporting to demonstrate that the employees selected for discharge by Reckner were in fact terminated after October 6, 1971 From the lists it can be seen that, although the 18 in question, for a number of biweekly payroll periods, worked below the 80-hour per period used by Reckner as the norm, there were other employees whose attendance records were equally as poor and who neverthe- less were not designated by him for discharge Indeed, in questioning Reckner about the two lists and has selections, counsel for the Respondent commented, "There appear to be some pretty bad offenders here who are still there " This confirms the results of my own examination of the lasts Reckner's lack of consistency in his asserted selection of employees for discharge detracts from his testimony and reflects a weakness in the Respondent's defense Furthermore, concentrating on the 10 employees singled out by name by Reckner and who are not mentioned in the complaint in Case 9-CA-6529, neither the first sheet nor the continuation sheet shows that employee Turnbow was discharged On the contrary, they show this employee was still employed during the period ending January 1, 1972 Later in his testimony Reckner substituted for Turnbow, "Garner," probably alluding to employee Geyer, as there is no "Garner," but a "blue termination" slip introduced into evidence by the Respondent reveals that Geyer was discharged on October 1 Employee Cooper was not fired, but quit Since Reckner testified that in some instances the word "final," placed on the line on which the employee's name and hours worked appear, meant "Quit," employees French and Parrish also may have quit and not been discharged It appears, moreover, that the last payroll period in which French worked was that ending September 25 Employee Oglesby quit, and was not fired According to the Respondent's records (a "call-off" sheet for October 1971 also received in evidence) Mary Graham on October 22 "never showed or called" and also may have quit, the continuation sheet discloses that the last payroll period in which she worked was that ending October 23, "no-call, no-show," moreover, is a direct breach of the Respondent's rules (see fn 12, infra) Employee Lawson continued working into the period ending November 13 The absence of a discharge confirming an alleged selection for firing, and working as late as November, combined with the fact that employees allegedly on Reckner's list were either not discharged at all (Turnbow), or were fired before October 6 (Geyer and French), undermine the probative value of 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reckner's testimony that, besides the 8 employees con- cerned in this proceeding, who were indeed discharged, there were 10 others who were selected for severance and all 18 were chosen on October 6 on the nondiscriminatory basis of excessive absenteeism and tardiness Reckner admitted that he knew of union organizational attempts at the Respondent's nursing home as early as June, when the charge in Case 9-CA-6316 was filed, and that he then discussed the matter with Gerald Keller, but denied that he ever discussed union organizational efforts with Craft or Osborne The "meat axe" remedy purportedly devised by Reckner runs counter to usual practices in employer-employee relations To determine from figures alone that employees should be severed, without considering that there may have been accepted excuses, or other justification for absences and tardiness, including the Respondent's own lenient past practices,12 or the lack of "final" or "last" warnings issued to affected employees, is a curious procedure which does not accord with normal management behavior Reckner conceded, furthermore, that, in late September 1971, because of critical deficiencies other than that related to the hours of work of nurses aides, merely correcting "the scheduling of employees" would not have saved the Respondent's accreditation under the Social Security Act While he "hoped" the Respondent would not be decerti- fied and he "didn't give up on trying to change," it was his opinion, he admitted, that regardless of what alterations he made in the scheduling of employees the Respondent was "going to lose" its certification The record shows that the Respondent was in fact decertified, although it has appealed that determination, made some corrections of deficiencies, and asked for variances as to others It appears from the two letters and telegram sent to it by Government regulatory bodies in September and October 1971 that on October 6 the question of adequate working hour coverage by nurses aides should have been the least of its concerns The plumbing repairs and physical changes that had to be made to the home were so formidable as to relegate to a subordinate position the matter of nursing services And as to that matter, the lack of RN's and L P N 's precluded compliance even if there had been absolutely no problem regarding aides The letter of October 18 from the Ohio Department of Public Welfare points out that a plan of correction submitted by Reckner on October 7, 1971 (which was not offered in evidence at the hearing in this proceeding), "shows some improvement, but is still lacking 112 hours weekly in nursing coverage " That department's letter of September 7 demonstrates that there were staffing shortages of 76 hours for R N 's, 292 hours for L P N 's, and 152 hours for nurses aides Finally, as the record indicates, the Respondent's past experience with nurses aides and kitchen and laundry 12 The Respondent s written Policies Rules and Regulations for Non Professional Personnel set forth with respect to the subject of Absence that Employees are required to call at least two hours in advance if unable to work that day If it is necessary to be out more than one day you are required to call daily and talk with the receptionist or night supervisor If absent for illness for two consecutive days, a doctor s release is required They also state in regard to the topic of Time Cards that ' The payroll clerk is instructed to pay only the time that shows on the timecard Employees who are repeatedly late will be docked accordingly Nothing is said about discipline for excessive absence or lateness where the employees furnished little reason for it to expect that replacements would provide a work force so free of absenteeism and tardiness that it would no longer have to deal with that situation The alternative to accepting and coping with this human condition, assuming of course employees conduct themselves reasonably and present reasonable explanations for their absence or tardiness, would seem to be constant turnover and turmoil From the foregoing facts, it appears, and I find, that the Respondent's major defense is implausible and unconvinc- ing The Respondent in its brief urges that "Whatever the reaction of the Company to the telegram of decertification under Title XVIII it cannot be said that a reasonable person faced with the same possibilities would not have done the same thing" But it is precisely because I find, msofar as the Respondent's nurses aides and kitchen and laundry employees are concerned , that a reasonable person would not have done all that Reckner claims to have done, that I cannot accept the chief defense interposed by the Respondent There is testimony by Osborne that between August 1971 and December 1971 some 60 employees of the Respondent were "terminated " Osborne stated they were not all terminated for absenteeism, but "for different occasions [sic ] " The record simply does not show that these employees were dismissed under circumstances compara- ble to those surrounding the severances of the employees specifically involved in the instant proceeding Another general defense raised by the Respondent is that it held "in-service" meetings, required by regulatory agencies, at which the aides were informed, among other things, that excessive tardiness or absenteeism would meet with disciplinary action Minutes or outlines of six such meetings in September and October 1971, purporting to indicate by name the employees who were present at such meetings , were introduced into evidence by the Respon- dent All 14 employees named as discriminatory dischar- gees in the complaint in Case 9-CA-6529 testified at the hearing No employee asked about these meetings, knew of them, or admitted attending them Osborne testified about these meetings and qualified the minutes for admission into evidence After stating she attended all six, she conceded she was not present at three I find that none of the employees concerned herein attended such meetings, if they were in fact held, and therefore could not have been warned through those channels about disciplinary action for excessive absenteeism or tardiness 13 The Respondent strongly insists, however, that there is no evidence it knew of the union activity of any of the 13 remaining employees at the time of discharge, and in the absence of such knowledge the complaint as to each must fall It is true that some of these employees testified that they signed their union cards in secrecy and did not talk rules are otherwise followed 13 I have also considered Osborne s testimony concerning warnings she allegedly gave to certain of the 13 remaining dischargees about absences or tardiness In each instance in which the dischargee denied receiving such warnings I credit the denial and discredit Osborne s testimony My later findings are based in part on this resolution of credibility I have already indicated that Osborne was not a straightforward witness Her inconsistent testimony about the minutes of in service meetings is further evidence of that fact AVON CONVALESCENT CENTER, INC 715 about the Union, but McCoy signed hers in the open, as did another employee on the same occasion, and McCoy spoke to friends about the Union while on the job Wanda Allen mentioned to employee Graham that she was "thinking about joining a union " Graham informed Burwell that Allen, Barksdale, William, and one other employee, "Lillian," had signed cards Burwell interrogat- ed not only Graham, but also Allen and Barksdale, about union activities There were considerable organizational efforts by Hampton and by Brown Brown obtained as many as 15 signed cards and went to 3 union meetings Some other employees, like Brown, distributed union cards and attended union meetings These activities of necessity involved conversation and discussion, and enveloped a substantial segment of the Respondent's work force Employees who did not talk were no doubt talked about The Respondent's small nonprofessional staff of about 38 employees has been mentioned before It is reasonable to infer, as I do, that the Respondent secured fairly specific information about the union activity of particular employ- ees in view of the foregoing facts, and what has earlier been established the Respondent's propensity for surveillance of union activities, and the remarks of its supervisors in effect admitting that the Respondent knew who had signed union cards Moreover, the concentration of dismissals in October, soon after the height of union activity in August and September, justified in large part by an unacceptable defense, and occurring in the ambience of unfair labor practices and statements by supervisors indicating the Respondent was bent on ridding itself of union adherents, leads to the conclusion, which I reach, that the mass discharges were generally intended to capture in their net Local 47 members, whether or not the Respondent knew definitely that any specific employee it selected for severance was in fact a union partisan 14 Against the backdrop of the above findings and conclusions, the discharges of each of the 13 remaining employees will now be specifically considered, first the discharges of the eight employees Reckner selected for separation on October 6, and then the balance Jeanette Barksdale was first hired by the Respondent in November 1970 There was a break in her service, and she apparently was rehired in June 1971 She was originally employed as a nurses aide, but for some time before her discharge worked in the kitchen and laundry For 1 mon_h before her severance she cooked and did laundry work As noted above, on September 8, 1971, she signed a Local 47 card she received from Ivra Brown, she later distributed five or six cards which were returned to her signed, and she attended two union meetings She was discharged at the home on the night of October 7, 1971 Very early that morning Burwell had indicated in a conversation with 14 In addition to the 13 employees alleged to have been discriminatorily discharged, all in October and the 10 Reckner claims to have additionally designated for discharge on October 6 the Respondent introduced documentary evidence that 7 or 8 (Geyer is one) more employees were dismissed that month Assuming that the 17 or 18 not named in the complaint in Case 9-CA-6529 were not union adherents, there is no such disproportion as to dictate a conclusion opposite to that I have reached above Furthermore substantial doubt as to many of the 10 allegedly selected for discharge by Reckner on October 6 as indicated before and the absence of evidence showing that the additional 7 or 8 were dismissed in circumstances that parallel those in which the 13 who are directly involved Mary Graham, overheard by Wanda Allen, that she knew Barksdale had signed a union card Burwell informed Barksdale of her separation after she reported for work Burwell also told her that she, Burwell, did not know why she was fired and could do nothing about it The Respondent purportedly discharged Barksdale for exces- sive absenteeism on the instructions of Reckner on October 6 Barksdale testified, and I find, that nothing was ever said to her about absences or tardiness I find, under all the circumstances alluded to above, including the Respondent's antiunion stance and other unfair labor practices, and the failure of its defenses,15 that the Respondent discharged Barksdale on October 7, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Jo Ann Bell was employed by the Respondent as a nurses aide from May 14, 1971, until her discharge on October 7, 1971 As already indicated, on August 26, 1971, she signed a union card she received from Ivra Brown She was fired on Reckner's orders for claimed excessive absenteeism 16 I credit her testimony that no one connect- ed with the Respondent ever warned her about "being off too often" or otherwise spoke to her about absenteeism before her discharge On October 7, in answer to Selvie's inquiry why she and Bell had been fired, Patton said "Well, they know you all was in the union " I find, under all the circumstances referred to above, including the Respon- dent's antiunion stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged Bell on October 7, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Victoria Selvie was employed by the Respondent as a nurses aide from April 1971 until her discharge on October 7, 1971 On October 7, as indicated before, Patton told her when she asked why she and Bell had been fired that "they know you all was in the union " On August 29, 1971, Selvie signed a Local 47 card she had received from Brown On Reckner's instructions Selvie was fired for alleged excessive absenteeism and tardiness I credit Selvie's testimony that before her discharge she had never been spoken to by anyone connected with the Respondent about being absent or late I find, under all the circumstances adverted to above, including the Respondent's antiunion stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged Selvie on October 7, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Jessie Farmer was employed by the Respondent as an aide in this proceeding were severed (although I later find that not all 13 but 11 were unlawfully separated), reduce the proportion of presumably nonunion employees to union employees even further 15 It should be noted that there was no reason at all for Reckner to select Barksdale for discharge in order to comply with governmental regulations for nursing services as Barksdale was not a nurses aide on October 6 and had not been for some time before that date is The blue termination slip introduced into evidence by the Respondent mentions only excessive absenteeism by Bell , notwithstanding Osborne s testimony that she was fired for that and tardiness 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from May 5, 1971, until her discharge on October 8, 1971 She signed a Local 47 card on September 5, 1971 She also received her card from Brown I credit Farmer's testimony that Osborne, on October 8, informed her she was discharged and stated that the reason was that she "had been absent too much " Farmer's dismissal was at Reckner's direction Farmer testified, and I find, that before her severance she was never warned by anyone connected with the Respondent about being absent too frequently I accordingly find, under all the circumstances referred to above, including the Respondent's antiunion stance and other unfair labor practices , and the failure of its defenses, that the Respondent discharged Farmer on October 8, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Annette Gibbs was employed by the Respondent as a nurses aide from May 6, 1971, until her discharge on October 8, 1971 She signed a Local 47 card on September 8, 1971, after receiving it from Brown As found above, about October 1, 1971, Gibbs overheard Burton's state- ment to Angst that "There will be a lot of terminations before a union gets in " Gibbs was dismissed by Osborne on October 8 at the direction of Reckner The Respon- dent's assigned reason (contained on Gibbs' "blue termina- tion" slip) was excessive absenteeism I credit Gibbs' testimony that she was never warned by anyone connected with the Respondent about absences or tardiness Conse- quently, I find, under all the circumstances mentioned above, including the Respondent's antiumon stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged Gibbs on October 8, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Letha Woodard was employed by the Respondent as a nurses aide from April 28, 1971, until her discharge on October 8, 1971 On September 4, 1971, she signed a Local 47 card she had obtained from Sarah Vales Woodard also distributed a union card On the instructions of Reckner, Craft fired her on October 8, informing her she had been absent too much I credit Woodard's testimony that before her dismissal no one connected with the Respondent ever mentioned anything to her about absenteeism According- ly, I find, under all the circumstances related above, including the Respondent's antiumon stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged Woodard on October 8, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Janell McCoy was employed by the Respondent as a nurses aide from June 23, 1971, until her discharge on October 14, 1971 She signed a Local 47 card on August 19, 1971, after being solicited by Hampton while she was eating lunch in the yard near the front entrance of the home, and she thereafter spoke to friends about the Union while she was at work At Reckner's direction Osborne fired her on October 14 I credit McCoy's testimony that Osborne informed her the reason for her dismissal was "tardiness," and that before her discharge she had never been warned by anyone connected with the Respondent about being late I, therefore, find, under all the circum- stances set forth above, including the Respondent's antiumon stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged McCoy on October 14, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Ivra Brown was employed by the Respondent as a nurses aide from February 17, 1971, until her discharge on October 21, 1971 As narrated above, Brown signed a Local 47 card on August 25, 1971, upon being solicited by Hampton while on her way home from work She attended three union meetings and was successful in obtaining signed cards from about 15 other employees Of the 14 employees named in the complaint in Case 9-CA-6529, she was the most active union adherent Selected by Reckner on October 6 for dismissal because of alleged excessive absenteeism, there is no reliable evidence that she had ever been warned before her discharge by anyone connected with the Respondent that she had been absent too frequently Insofar as the Respondent's asserted defense of excessive absenteeism is concerned, I find it just as insufficient to justify the severance of Brown as the discharges of the other seven employees (Barksdale, Bell, Selvie, Farmer, Gibbs, Woodard , and McCoy) singled out for dismissal by Reckner on October 6, and I would therefore come to the same conclusion I arrived at in their cases that the Respondent's act of severance violated Section 8(a)(3) and (1) of the Act But the Respondent sets forth additional grounds for firing Brown Entered on her "blue termination" slip as the "Reason for termination" are "insubordination" and "improper conduct," as well as "excessive absenteeism " Patton signed a "pink disciplinary" slip concerning alleged improper behavior by Brown on October 20, 1971 The slip, introduced into evidence by the Respondent, states, in substance, that Brown carried a lunch tray to a patient who could not feed herself, and merely left it without feeding the patient as Brown was supposed to do, and that when Brown was asked why the patient was not fed answered, "It's time she learned to feed herself anyway " In her testimony Patton embellished this report, claiming that she had talked to Assistant Director of Nursing Burton and pointed out that she had had to ask Brown to feed the patient, that Burton had said, "Well, I had to ask her to feed her earlier," and "she hasn't fed her yet9", that "they" went into the patient's room to see if she had been fed and the tray had been pulled by the patient and had turned over on her , and that Brown told Patton and Burton "It's not important that she be fed anyway because she doesn't eat " Patton also testified Brown said the patient "could do it herself " Burton appeared as a witness on the Respondent's behalf, but she gave no testimony corroborating that of Patton Brown testified that she was not involved in the incident, that no nurse ever asked her why she was not feeding a patient, that at the time of the claimed event she was not even working in the section of the home where it supposedly took place , and that she was in the dining room AVON CONVALESCENT CENTER, INC 717 when the episode allegedly occurred Brown flatly denied ever having refused to feed a patient I have already found Brown to be a credible witness concerning other events and credit her testimony that she was not implicated in this alleged incident Burton's failure to corroborate Patton's testimony has also been taken into consideration in my resolution of this conflicting testimony Osborne testified that on October 21, 1971, she over- heard Brown announcing to other employees in a loud manner where the work schedule had been posted that day that "she wasn't going to be pushed around, that they weren't changing her shift, and so on " Osborne stated Brown did not complain to her about the matter Osborne further testified that other aides were objecting about Brown's "carrying on," and that a floor nurse had reported that Brown was not taking care of patients but was "causing a commotion " Osborne also testified she heard Brown swear, but Brown did not do so in her presence, that Brown said " `This damn place' and a lot of different things like that Just nonsense " Reckner was attending special classes at Xavier University and, according to Osborne, was called "to come over to see if things wouldn't settle down and be quieted down " Osborne additionally testified that Reckner amved at the nursing home about noon, that Brown "didn't say anything and had quieted down at that time, you know, nothing else had been said " Reckner testified that he was called by his office in the morning while he was at classes, and arrived about noon at the nursing home, where Osborne told him Brown "was causing some problems, and cursing, and that the other employees had objected, and the staff was quite concerned about it", and that he looked for and found Brown and "at that time there seemed to be really no apparent problem " When Brown clocked out that day her timecard was "pulled " The next morning Osborne told Brown of her discharge, showing her the Patton "pink slip" of October 20, on which Reckner had written that Brown was "terminated" for violation of a "nursing home policy" identified by numbers (but never explained in the record), and that the violation called for "automatic termination " Brown testified, however, that about a week before her discharge she was transferred from one section of the home to another, that upon her asking Director of Nursing Angst why she was transferred, Angst said, among other things, "All they want you to do is quit, but if I was you I wouldn't give them that much satisfaction", and that she, Brown rejoined, "I'm not," and continued working until her termination As noted before, Angst was not called as a witness by the Respondent, and Brown's testimony about this conversation stands uncontradicted in the record Brown additionally testified that, with respect to the work schedule posting incident, she learned from looking at the schedule that her working hours had been changed from the day to the night shift, and that she asked Patton if she knew why her schedule had been changed, and that Patton answered "no " She also testified that she then inquired of Osborne why her hours had been changed, that Osborne answered, "I don't know I had orders to do so," that she replied, "Well, no one ever asked me if it was convenient for me to work that shift," that Osborne responded, "Well, I don't know I had orders to do it," that at that point she said, "Well, you might as well fire me because I am not working it," and "I don't give a damn," and that she then "turned and walked downstairs on the floor " Brown denied seeing Reckner that day Brown further testified that the next day she did not find her timecard in the rack when she reported for work and asked Osborne if there were a "message" for her, that Osborne replied "no," that Brown said she would remain until "someone tells me something", that Osborne left and a guard employed by the Respondent later asked Brown to go to the office, and that Osborne there told Brown "Oh, I didn't know this was here, I just found this," and showed her the Patton "pink slip" of October 20 with Reckner's notations Brown additionally testified that she told Osborne "This isn't the reason that I am being fired, and you know that this is not the reason I am being fired, that Osborne "just looked at" her, that Brown then said, "Well, you'll probably see this black face again and some more of the others that walked out the door," that the guard, who was present, remarked, "Well, we could use that as a threat," that she replied, "No, you can't, because it is not a threat", and that she then left the nursing home 17 For reasons already explained in regard to Brown's credibility generally and in other respects, I credit her testimony about the events leading up to the change of her working hours, what happened the day the Respondent "pulled" her timecard and actually separated her, and what occurred the next when she was informed by Osborne of her discharge Brown, contrary to the Respondent's contention, did not refuse to feed a patient In the light of Angst's statements to Brown, and the Respondent's past unlawful conduct and the findings I have made above of its knowledge of and intentions concerning its employees who engaged in union activity, particularly as those findings relate to Brown, who was an energetic Local 47 protagonist, I find that by the changes in Brown's work place and working hours the Respondent consciously set out to make Brown so unhappy in her work as to provoke her and cause her to quit 18 Neither from Brown's testimony, nor even from that of Osborne, as to Brown's "cursing" (Osborne specifically mentioned only Brown's use of the word "damn"), or other behavior on the day Brown complained of the change of her working hours and was fired, do I find that her conduct, especially in view of the fact that she was deliberately provoked, was so inexcusable as to cause the Respondent to discharge her Nor do I find that Brown actually quit voluntarily And Brown's testimony, which I have credited, concerning her exit interview with Osborne the next day does not show that she then acted in an indefensible manner I am convinced that none of the three 17 Osborne testified to a somewhat different version of this exit interview 18 In making this finding I have considered but rejected the Respondents argument that work schedule alterations were not only directed to Brown, but also to other employees to take care of the changes necessitated in implementing Reckner s determination of October 6 Angst s remarks alone warrant a refusal to accept this argument, which is based on Osborne s general testimony about the personnel procedures and changes in schedules which followed Reckner s October 6 decision to fire employees en masse and to hire replacements His decision moreover, was as has been found, improperly motivated 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons put forward by the Respondent for its discharge of Brown actually motivated it to dismiss her from its employment I conclude and find, under all the circum- stances referred to above, including the Respondent's antiunion stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged Brown on October 21, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Charlotte William was employed by the Respondent as a nurses aide from on or about September 16, 1971, until her discharge on October 7, 1971 As found above, she signed a Local 47 card on September 20, 1971, after receiving it from Hampton About October 1, she was in the home in a group with other employees when Osborne paused to observe them, and a day later Patton stated that Osborne had seen them and was "uptight" or "mad" because she believed they had been talking about a umon Very early in the morning of October 7 Burwell had learned from Mary Graham that William had signed a union card On October 7, employee Wanda Allen called William and informed her that she had been fired William told Allen she would verify her discharge herself That night, she credibly testified, and I find, she called Burwell, under whom she was directly working, and Burwell confirmed that she had been dismissed, and advised her that Craft had communi- cated with Burwell and told Burwell that William "was terminated and several others were going to be terminated too " On the next day, as William further credibly testified, and I find, she called the home again to speak to Craft, but Osborne answered, told her Craft "wasn't in," and replied to her question why she was terminated that "she [Osborne] didn't owe [William] an explanation, and said besides [William] hadn't been there 45 days any- way " 19 Burwell testified that during William's employment a patient claimed she had asked for help from William and did not receive it, "The nightstand wasn't as clean one morning as it should have been", and William on one occasion from 7 45 "kind of killed time until eight o'clock " Burwell also testified she told Osborne of these matters, which occurred at different times According to Osborne, Osborne prepared three "pink slips" based on Burwell's reports, and these were the reasons William was fired, after Osborne went over personnel records to effectuate Reckner's instructions on October 6 not to retain any unsatisfactory probationers A "blue termina- tion" slip concerning William states "Probation Unsatis- factory" Burwell admitted, however, that she did not speak to William about the alleged mghtstand incident or complaint from the patient who did not receive requested help, nor is there any evidence that she protested to William about her claimed 15-minute "killing of time " Burwell also testified on cross-examination that, with respect to William's failure to satisfy a patient's request, the patient told Burwell that "she wanted a glass of milk and didn't get it " The three "pink slips" to which Osborne testified were not offered in evidence Also, Osborne testified that William was not furnished with copies of such slips I find it difficult to believe that a supervisor would not inform an employee of her dereliction of duty at the time of the incident particularly if the matter were serious enough to be permanently entered on her record of employment Inasmuch as the Respondent produced other "pink slips" at the hearing, I fail to understand why it did not so in William's case Burwell, moreover, did not even speak to William to verify whether she had in fact ignored a patient's demand And the other two episodes, if indeed they occurred, appear to be rather trivial Finally, Osborne's refusal on October 8 to tell William why she had been fired hardly strengthens the grounds on which the Respondent now relies The Respondent's asserted reasons for discharging William, I conclude, are lacking in substance and cogency I find, under all the circumstances set forth above, including the Respondent's antiumon stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged William on October 7, 1971, because it knew she had engaged in umon activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Wanda Allen was employed by the Respondent as a nurses aide from on or about September 10 or 14, 1971, until her discharge on October 7, 1971 As related above, she signed a Local 47 card on October 1, 1971, after being solicited by Hampton Allen had informed employee Mary Graham that she "was thinking of joining a umon," and several hours before Allen's discharge on October 7, Graham told Burwell that Allen had signed a union card Graham's conversation with Burwell occurred after Allen had earlier reported for work for that same shift, found her timecard missing, but had been supplied with another by Burwell and allowed to continue to work Immediately following the conversation between Graham and Burwell, Burwell asked Allen if she had signed a card and told her if she did she would be discharged, "because they are going to fire a lot of girls around here because of the union " About 7 30 a in on October 7 Patton told Allen that Craft wanted to see her Allen went to his office and he had her punch out She was then informed by him that she "was terminated " He told her she was not doing her work and he could not tell her "who said it " She responded that she had "been doing her work, because Mrs Burwell told me I was doing a good fob " He repeated that she was "terminated" and she left 20 Allen testified credibly, and I find, that she was told she "was doing a good job, on several occasions I would mop floors and things like that, which Burwell told me we weren't supposed to do " A "blue termination" slip affecting Allen was received in evidence It states "Probation Unsatisfactory (No Call- -No Show) (10-1) " Osborne testified "Wanda Allen was terminated on absenteeism She had called Georgia "Under the Respondents policies and rules referred to above a witness all of which have been previously mentioned employees were hired for a probationary period of 45 days Osborne 20 These findings regarding Allen s exit interview with Craft are based on testified to a different version of this call (See the discussion of the her undenied and credible testimony Craft as noted before was not called discharge of Mary Allen infra) I have credited William s testimony based by the Respondent as a witness on her favorable demeanor on the stand and on Osborne s shortcomings as AVON CONVALESCENT CENTER, INC 719 [Burwell] on a Friday night and told her she'd be in to work and she never showed up And she had missed the week before-called off the week before that She was on her probationary time, also " Burwell testified that Wanda Allen "called in and said she would be in but she would be late", and that "she never came " Burwell conceded that she had supplied Allen with a timecard when Allen had reported for the night shift on October 6 Allen denied that she had an unreported absence on October 1 She further testified that she called the home on one occasion (the date of which she could not remember) to say she would not be in because she had to visit her husband in the hospital I credit Allen's testimony, including her denials, having already discredited the testimony given by both Burwell and Osborne in a number of other respects Based on Allen's credited testimony, she did not have an unreported absence on October 1, she called off properly on one occasion (the date of which she could not recall) because of the illness of her husband, the only matter mentioned to her by Craft when she was discharged on October 7 was that "she was not doing her work", and she was complimented by Burwell for performing her work well Furthermore, even assuming, contrary to the facts I have found, that Allen on October 1 did not "call or show" (Burwell and Osborne indicate she did "call" to say she would be late, but did not "show"), the Respondent waited 6 days to act upon this alleged breach of its rules, the excuse apparently being that action was later taken because of Reckner's October 6 instructions to weed out undesirable probationers But the legality of the intention behind those instructions has already been found wanting I find, under all the circumstances heretofore mentioned, including the Respondent's antiumon stance and other unfair labor practices, and the failure of its defenses, that the Respondent discharged Wanda Allen on October 7, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Mary Allen, Charlotte William's sister, was employed by the Respondent as a nurses aide from September 21 until her discharge on October 8, 1971 She obtained a Local 47 card at the union's Vine Street office and signed it on September 22, 1971 As found above, about October 1 Osborne observed her in a group with other aides, and the next day Patton declared that Osborne had seen them and was "uptight" or "mad" because she believed they had been discussing a union On October 8, William called Allen and told her that she, William, had been terminated Allen testified that she then called the home, that she spoke to Osborne and asked if she was terminated, that Osborne answered "yes", that she said "thank you" and inquired when she was "supposed to pick up her check", and that Osborne replied "On payday" Burwell testified that Allen called her and informed her that she was scheduled to work that night and would not "be back," that since "they had let her sister go, she decided that she just wouldn't come back " Burwell also testified that Mary Allen's timecard, to the best of her knowledge, had not been "pulled" and that "she was on the schedule, too " Osborne testified that Burwell informed her that Mary Allen had called Burwell "and told her that she heard that her time card had been pulled and she wouldn't be back anymore " Osborne at one point also testified that Mary Allen later called her and "wanted to know why her time card had been pulled, or why she was terminated", that she, Osborne, told her "we were terminating a lot on probationary period, and she got very nasty and very sarcastic on the phone", and that Mary Allen wanted a reason for her termination and that Osborne told her she "did not have to give her a reason, and hung the phone up " Later in her testimony Osborne stated Mary Allen did not call her, that "Charlotte William called me," indicating that the above telephone conversa- tion was had with William On cross-examination Mary Allen denied talking to Burwell and insisted her telephone conversation (as related before) was with Osborne I credit Mary Allen's testimony, having in other respects already credited her testimony and discredited that of Burwell and Osborne Based on Allen's testimony I find that she did not voluntarily leave the Respondent's employ, but that she was discharged without justification together with the other employees severed in October I therefore also find , under all the circumstances mentioned above, including the Respondent's antiunion stance and other unfair labor practices , and the failure of its defenses, that the Respondent discharged Mary Allen on October 8, 1971, because it knew she had engaged in union activity or believed she might have done so, and that it thereby violated Section 8(a)(3) and (1) of the Act Sarah Vales was employed by the Respondent as a nurses aide from July 1971 until her separation on October 16, 1971 On September 12, 1971, she signed a Local 47 card she received from Hampton Thereafter, Vales successfully solicited other employees, including Woodard, to join the Union, and attend union meetings The Respondent contends it took Vales off its employ- ment roster for not calling or showing when she was scheduled to work the night shift beginning the night of Saturday, October 16, and ending the next morning, on October 17 Supporting its contention are its records (the "call off" sheet for October 1971, introduced in evidence, states that on "10-16," for the time " 1130-8 00," there was "No Show, No Call" for "S Vales", a timecard, also introduced in evidence, indicates that Vales' last working day was the night shift commencing on a Friday night, October 15, and terminating Saturday morning, and a "blue termination" slip for Vales, likewise received in evidence, includes as the "Reason for termination," "No Call-No Show" on October 16, 1971), and Vales' admissions that she did not report for work on 1 day, which she, however, designated as October 15, and on that day not only did she not "come in," but she also did not "call in " This was a clear breach of the Respondent's punted and publicized policies and rules Moreover, the Respondent acted at once to remove her from its employment lists Vales, insisted, however, that on the morning of October 16, a Saturday, and according to her the day following her failure to call or show, she reported for work and, finding no timecard, spoke to Reckner She further testified that 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she informed him she had no timecard, that he replied there was nothing he could do, that "you can't work the hours and everything, and I thought you had quit," that she then said, "Well, I didn't call in stating that I had quit," that he repeated what he had said before, and that at this juncture she "walked out "22 Reckner squarely denied talking to Vales, testifying that it was not usual for him to be at the nursing home on weekends It is quite clear from the Respondent's records and all of Vales' testimony that the alleged conversation with Reckner could not have taken place the morning of Saturday, October 16 Vales stated that she saw Reckner on October 16, the morning following her failure to report for work The Respondent's records show, however, and I find, that she worked from the night of Friday, October 15, to the morning (8 04 am) of Saturday, October 16 In short, contrary to her testimony, she worked during October 15 and was at the home the morning of October 16 without a hiatus Furthermore, as Vales admitted on cross- examination, in a preheanng statement she gave to the General Counsel she had fixed the date of her dismissal as October 8 While the matter may seem to be insignificant, relating merely to dates, I scarcely feel myself constrained to treat it lightly and select a third date as the one on which Vales may have had her conversation with Reckner, in view of his testimony that he did not speak to her at all, and not on a weekend when it was not usual for him to be at the home From the above contradictions in Vales' testimony and her demeanor on the witness stand, I am persuaded that her testimony is inaccurate and unreliable and I do not credit it I do not find that she spoke to Reckner after she failed to call or show Accordingly, I conclude that there is insufficient evidence to establish that the Respondent took action against Vales in violation of Section 8(a)(3) and (1) of the Act Indeed, even had I credited Vales' testimony as to her conversation with Reckner, there would be serious doubt the Respondent contravened the law, for she plainly violated its known "call off" rules, it acted at once to strike her from its employment rolls, and, though the record shows it has rehired other employees after a separation, there is no clear indication that it has done so immediately following a plain dereliction of duty that underlies a separation Linda Cruz was employed by the Respondent as a kitchen worker until her discharge on October 18, 1971 Cruz testified that she was employed on September 7, 1971, but the date on her employment application, received in evidence, shows that she was hired on October 4, 1971, and a timecard, also received in evidence, appears to confirm that her starting date for the Respondent was October 4 Cruz also testified that the date, October 8, 1971, inserted in her Local 47 card, was "my mistake," and that she actually signed the card on September 10, 1971, when she obtained it from Ivra Brown at a union meeting Cruz was discharged on October 18 for the reason, conveyed to her, that she had been late three times during her probationary period Two timecards received in evidence reveal that she had been tardy on three occasions, although Cruz insisted on cross-examination that she had been late only once 22 Vales also testified that after she signed her Local 47 card Craft several times changed her working hours over her protests, and that this While testifying Cruz seemed to be a confused and unsure witness Her testimony itself also lacks clarity and certainty I accept the Respondent's records concerning the commencement of her employment and her tardiness It thus appears that during her probation and in a brief 2- week period of employment-October 4 to 18-Cruz was tardy three times In fact, on 3 of a total of only 11 working days she reported late for her shift The Respondent promptly discharged her on the third occasion In the short interval involved there was no condonation or acceptance of her poor work habits The Respondent had reason to expect that, if at the start of her employment, Cruz was not conscientious in her work, her future performance would be even worse In these circumstances, I find that the General Counsel has not sustained his burden of establish- ing by a preponderance of the credible evidence that the Respondent discharged Cruz because of her known or suspected union activity Consequently, I do not find that the Respondent violated the Act by her dismissal Upon the foregoing facts and the entire record, I make the following CONCLUSIONS OF LAW 1 The Respondent, Avon Convalescent Center, Inc, is and at all material times has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 National Union of Hospital and Nursing Home Employees, Local 1199H, an affiliate of Retail, Wholesale, Department Store Union, AFL-CIO, and Service, Hospi- tal, Nursing Home and Public Employees Union, Local 47, Service Employees International Union, AFL-CIO, are and at all material tunes have been labor organizations within the meaning of Section 2(5) of the Act 3 The Respondent violated Section 8(a)(3) of the Act by discharging Mary Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell McCoy, Victoria Selvie, Charlotte William, and Letha Woodard because it knew or suspected that they were members of Local 47 or had engaged in other union activity 4 The Respondent violated Section 8(a)(1) of the Act by the above-described discharges , by engaging in surveil- lance of a union meeting, union solicitation, and the union activities of its employees, by maintaining an unduly broad rule against union solicitation, by threatening its employ- ees with discharge and otherwise intimidating them with respect to their joining a union, and by interrogating employees concerning the union membership of its employees 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 6 The Respondent has not committed any other unfair labor practices alleged in the complaint in Case 9-CA-6529 THE REMEDY Having found that the Respondent has engaged in made it difficult for her to obtain a babysitter AVON CONVALESCENT CENTER, INC 721 certain unfair labor practices, it will be recommended that it cease and desist therefrom and from like or related invasions of the employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the purposes and policies of the Act It has been found that the Respondent discharged Mary Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell McCoy, Victoria Selvie, Charlotte William, and Letha Woodard in violation of Section 8(a)(3) of the Act It will therefore be recommended that the Respondent offer these 12 employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their discharges by payment of a sum equal to that which they normally would have earned, absent the discharges, from the date of the discharge to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289 Backpay shall carry interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co, 138 NLRB 716 It will be additionally recommended that the Respondent preserve and, upon request, make available to the Board, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of this recommended Order 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 23 ORDER The Respondent, Avon Convalescent Center, Inc, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging its employees because of their known or suspected union membership or other union activities (b) Engaging in surveillance of union meetings, union solicitation, or the union activities of its employees (c) Maintaining a rule forbidding employees from engaging in union solicitation during their nonwork time in any area of its premises (d) Threatening its employees with discharge or other- wise intimidating them with respect to their joining a union (e) Interrogating employees concerning the union mem- bership of its employees (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action which will effectuate the policies of the Act (a) Offer Mary Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell McCoy, Victoria Selvie, Charlotte William, and Letha Woodard immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discharges by the Respondent in the manner set forth in the section hereof entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to the determination of the backpay due and the rights of reinstatement provided under the terms of this recommended Order (c) Notify Mary Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell McCoy, Victoria Selvie, Charlotte William, and Letha Woodard in the event that they are now serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces (d) Post at its nursing home in Cincinnati, Ohio, copies of the attached notice marked "Appendix "24 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith 25 IT IS FURTHER ORDERED that the complaint in Case 9-CA-6529 be dismissed insofar as it alleges that the Respondent violated the Act in any respect not found herein 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 and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes 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 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 25 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read Notify said Regional Director in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge our employees because of their known or suspected membership in a union or 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other union activities protected under Section 7 of the National Labor Relations Act WE WILL offer to Mary Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell McCoy, Victoria Selvie, Charlotte William, and Letha Woodard immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered as a result of their discharges by us WE WILL NOT engage in surveillance of union meetings, union solicitation or the union activities of our employees WE WILL NOT maintain a rule forbidding employees from engaging in union solicitation during their nonwork time in any area of our premises WE WILL NOT threaten our employees with discharge or otherwise intimidate them with respect to their joining a union WE WILL NOT interrogate employees concerning the union membership of our employees WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act AVON CONVALESCENT CENTER, INC (Employer) Dated By (Representative) (Title) We will notify immediately Mary Allen, Wanda Allen, Jeanette Barksdale, Jo Ann Bell, Ivra Brown, Jessie Farmer, Annette Gibbs, Icilda James, Janell McCoy, Victoria Selvie, Charlotte Williams, and Letha Woodard, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686