The Ohio Masonic Home

THE OHIO MASONIC HOME 357 The Ohio Masonic Home and National Union of Hos- pital and Nursing Home Employees, Local 1199H, an affiliate of Retail, Wholesale and Department Store Union, AFL-CIO. Cases 9-CA-6964 and 9- CA-7069 August 8, 1973 DECISION AND ORDER On December 27, 1972, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed limited exceptions and a supporting brief, and Respondent filed an answering brief to General Counsel's excep- tions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as indicated hereinafter. 1. The Administrative Law Judge found that Respondent's orally promulgated rule against union solicitation and distribution of union literature on company time was lawful, and that the threat to dis- charge employees for violating the rule was equally lawful. We disagree. The phraseology used by Respondent in directing employees not to solicit for the Union or to distribute union literature was ambiguous. It could reasonably be interpreted to mean that an employee may not engage in union solicitation or distribution of union literature at any time the employee is on the clock, even at a time that the employee has finished his work and is in a nonwork area. In Summit Nursing and Convalescent Home, Inc., 196 NLRB 769 (Chairman Miller dissenting), the Board found a similar broad no-solicitation rule promulgated in a nursing home invalid. Accordingly, we find that by the rule re- stricting union solicitation and distribution of union literature during working time Respondent violated Section 8(a)(1) of the Act. It follows that the threat to discharge employees for violating the rule was equally violtive of Section 8(a)(1). We so find. 2. The Administrative Law Judge concluded that Respondent did riot "iolate Section 8(a)(1) by prohib- iting employees from wean,., 'anion insignia while at work, and Section 8(a)(3) by discharging an employee for refusing to remove the insignia when ordered to do so. We disagree. In June 1972, some of the employees began wearing blue union buttons about the size of a quarter with white print reading "Local 1199" in the middle and "Hospital Division AFL-CIO" around the border. Respondent ordered the employees to remove the buttons and issued a rule against the wearing of union buttons during working time . At the time of promul- gation of this rule, Respondent had no similar rule against wearing buttons which were unrelated to union activities, such as so-called "Smile" buttons or "Jesus Saves" buttons, and employees have in the past worn such buttons . On July 17, 1972, Respondent discharged employee Coram Miracle because of his refusal to remove his Local 1199 union button from his clothing. The Board has long recognized that an employee has the protected right to wear union insignia while at work. In the absence of "special circumstances," the promulgation of a rule prohibiting the wearing of such insignia is violative of Section 8(a)(1).' The Adminis- trative Law Judge found the "special circumstances" justifying the prohibition in this case in the necessity of protecting the health and welfare of the residents of Respondent's facility . We do not agree that this was the motivation for the promulgation of the rule. In Service Employees International Union Local 50, AFL-CIO (Evergreen Nursing Home and Rehabilita- tion Center, Inc.), 198 NLRB No. 101, the Board found "special circumstances" justifying a rule against wearing union insignia by personnel in a nurs- ing home, but the circumstances justifying the finding that the prohibition was adopted for nondiscriminato- ry reasons were much stronger in that case than here. In Evergreen, the employer had since its formation and prior to the union organizing campaign enforced a rule prohibiting employees from wearing any at- tachments to their clothing while at work except for name tags and pins relating to nursing service. The union insignia in that case consisted of bright yellow buttons 1-7/8 and 2- 1/4 inches in diameter . The size and color of the buttons obviously detracted from the all white uniforms worn by the employees. In the present case, in contrast, the prohibition was against the wearing of union insignia but not other attach- ments. It was not adopted until the onset of the union organizing campaign, and the insignia was noticeably less conspicuous in size and color than the union but- tons in Evergreen. In all the circumstances, we find that the prohibition against employees wearing union insignia at work was promulgated not because of Respondent's concern with the health and welfare of its residents, but to thwart the Union's organizational campaign. Accordingly , we find that the promulga- tion of the rule violated Section 8(a)(1) of the Act. As the rule was unlawful, we further find that the dis- charge of employee Coram Miracle for refusing to 1 Floridan Hotel of Tampa, Inc, 137 NLRB 1484 205 NLRB No. 65 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adhere to the rule was violative of Section 8(a)(3) and (1) of the Act. AMENDED CONCLUSIONS OF LAW Delete the Administrative Law Judge's conclusions 4, 5, and 6 and substitute therefor the following: 4. By promulgating and maintaining a no-solicita- tion rule which prohibits employees from soliciting orally for the Union in work areas during their non- working time and distributing union literature in non- work areas during their nonworking time, Respondent has violated Section 8(a)(1) of the Act. 5. By promulgating and enforcing a rule prohib- iting employees from wearing union insignia while at work, Respondent has violated Section 8(a)(1) of the Act. 6. By discharging Coram Miracle on July 17, 1972, because of his refusal to remove union insignia while at work, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in cer- tain additional unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, we shall order Re- spondent to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Coram Mira- cle, we shall order Respondent to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earn- ings he may have suffered as a result of the discrimi- nation against him by payment to him of a sum of money equal to that which he would have earned as wages from the date on which he was discharged to the date of Respondent's offer of reinstatement, less his net earnings during said period. Backpay shall be computed in the manner described in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 136 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, The Ohio Masonic Home, Springfield, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in surveillance of employee union ac- tivities within the meaning of Section 8(a)(1) of the Act. (b) Promulgating, maintaining in effect, enforcing, or applying any rule or regulation prohibiting its em- ployees from soliciting on behalf of any labor organi- zation in work areas during their nonworking time, and distributing union literature in nonworking areas during their nonworking time. (c) Promulgating and enforcing a rule prohibiting employees from wearing union insignia while at work. (d) Discharging or otherwise discriminating against any employee because of noncompliance with the rule against wearing union insignia while at work. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Rescind its rule against soliciting on behalf of a labor organization during employees' nonworking time in any area of its nursing home, or in distributing union literature during employees' nonworking time in nonwork areas of its nursing home. (b) Rescind its rule against wearing union insignia while at work. (c) Offer Coram Miracle immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileg- es, and make him whole for any loss of earnings he may have suffered in the manner set forth in the sec- tion of this Decision entitled "The Remedy." (d) 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 necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its offices at or near Springfield, Illinois, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Re- gional Director for Region 9, after being duly sighed by Respondent's representative, shall be posted 1y the Respondent immediately upon receir* 11,cl eof, and be maintained by it for 60 crrn ' ,utive days thereafter, in conspicuous places, in;luding all places where notices 2 In the event that this 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 l ead "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " THE OHIO MASONIC HOME 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. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. CHAIRMAN MILLER and MEMBER KENNEDY, dissenting in part: In our view, the Administrative Law Judge's find- ings and conclusions are correct.' For the reasons stated by him, we would adopt his Decision in its entirety. 3 On the basis of the credited testimony of the Home's administrator, the Administrative Law Judge found that the sole motivation behind the promul- gation of the rule prohibiting the wearing of union buttons by employees was premised on Respondent's concern that the union buttons, unlike the "smile" and "Jesus Saves" buttons, would have a worrying effect on the residents that other buttons would not Our colleagues choose to ignore the fact that this finding was based on a credibility resolution of the Administrative Law Judge. Consequently, they have in effect substituted their own credibility finding for that of the Administrative Law Judge. This we refuse to do APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in surveillance of your union activities. WE WILL NOT promulgate, maintain, or enforce any rule or regulation which prohibits our em- ployees from soliciting on behalf of any labor organization in work areas of our nursing home during their nonworking time, or from distribut- ing literature on behalf of any labor organization in nonwork areas of our nursing home during their nonworking time. WE WILL NOT promulgate or enforce any rule prohibiting our employees from wearing union insignia while at work in our nursing home. WE WILL NOT discharge or otherwise discrimi- nate against any ew.I loyee because of noncom- pliance with the rule against wearing union insignia while at work. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the National Labor Relations Act. WE WILL offer Coram Miracle immediate and 359 full reinstatement to his formerjob or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or other rights and privileges, and will make him whole for any loss of earnings suffered as a result of the discrimination against him. Dated By THE OHIO MASONIC HOME (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge: The Re- spondent Ohio Masonic Home, a nonprofit corporation es- tablished in 1892, operates a permanent home for approximately 500 aged former Master Masons and their wives or widows whose average age is more than 80 years, at facilities on a 40-acre tract of land dust west of Spring- field, Ohio. The majority of the residents are nonambulato- ry. These, consisting of about 330, occupy beds in a structure referred to as the Rickly Memorial Hospital. The remaining 170 residents live in ambulatory resident halls of another structure. For admission to the Home an applicant "must be unable to earn a living for himself and must be in need of a home" and further must agree in writing to turn over to the Home "all property, whether real, personal or mixed, of which he is possessed at the time of making appli- cation, as well as all income he is receiving" or may receive after admission to the Home.' The Home employs some 380 employees for the care of its aged residents and accompanying administrative and accessorial services. The complaints herein charge the Home with a number of violations of the rights guaranteed to employees by the National Labor Relations Act, and a discriminatory dis- charge. The Respondent's principal or threshold defense to the 1 The above findings of fact are based primarily on the published 74th Annual Report of the Home for the fiscal year ending June 30, 1971, as it appears in Joint Exhibit I at Appendix E 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint is a two-fold jurisdictional defense . Its first such defense is that it is a nonprofit hospital corporation and therefore not an "Employer" under the Act because Section 2(2) of the Act expressly excludes nonprofit hospital corpo- rations from the definition of an "Employer" subject to the Act. With respect to this defense General Counsel contends that the Home is precluded from raising that jurisdictional plea in this unfair labor practice complaint proceeding be- cause in a prior representation proceeding it had been de- ternuned with finality within the Board that the Home does not operate a hospital 2 within the meaning of the Act and that under Board authority that same issue cannot be reliti- gated here . Further, General Counsel contends that even if the same jurisdictional issue is deemed properly present in this proceeding the findings of fact in the representation proceeding, incorporated herein by stipulation, would com- pel the same holding that the Home does not operate a hospital within the meaning of the Act and that accordingly the Home is an Employer subject to charges of unfair labor practices under the Act. The Home's second jurisdictional defense is a challenge to the allegation in the complaints that it is engaged in operations "affecting commerce" as defined in Section 2(7) of the Act on the ground that "the economic impact of the Ohio Home is uniquely localized within the State of Ohio." Although this defense is raised by the pleadings, it does not appear to have been argued at the trial and is not listed as an issue in General Counsel's otherwise comprehensive brief. It will be assumed that General Counsel's position with respect to this second jurisdictional defense is that this issue, like the first jurisdictional defense, was determined in the representation proceeding adversely to the Home and may not be relitigated here and that in any event if the same issue were relitigated here the result under the stipulated facts would necessarily be the same. The Home's final defense is a denial of the unfair labor practices alleged by the complaints herein . Summarized and detailed the issues in this consolidated proceeding are as follows: 1. Whether there may be relitigated here the jurisdic- tional issue decided and determined adversely to the Re- spondent in a prior representation proceeding of whether the Respondent as it claims is a nonprofit corporation oper- ating a hospital entitled to exemption from the Act as a nonemployer within the meaning of Section 2(2) of the Act. 2. Whether there may be relitigated here the jurisdic- tional issue decided and determined in the same prior repre- sentation proceeding adversely to the Respondent of whether it is engaged in operations "affecting commerce" within the meaning of Section 2(7) of the Act as alleged in the complaints so as to subject the Respondent to the opera- tion of the Act. 3. Whether the Respondent is in violation of Section 2 A corporation claiming exemption under Sec . 2(2) of the Act as a "hospi- tal" must meet the double requirement of proving that it operates a hospital and that such operation is strictly a nonprofit operation It is an established conceded fact that the Home and all of its facilities , including the structure referred to as the Rickly Memorial Hospital, are not operated for profit Thus the only question here involved under Sec 2(2) of the Act is whether the Respondent operates a hospital 8(a)(1) of the Act (a) by unlawfully interrogating and threat- ening two employees concerning their union activities, (b) by promulgating and enforcing an unlawfully broad no- solicitation, no-distribution rule, (c) by engaging in unlaw- ful surveillance of employees attending a union meeting, (d) by the oral promulgation of a rule prohibiting employees from wearing union buttons on Respondent 's premises, and (e) and by threats to discharge employees wearing union buttons. 4. Whether Respondent is in violation of Section 8(a)(3) and (1) of the Act by its discharge of an employee for his refusal to remove his union button. The complaint in Case 9-CA-6964 was issued on May 26, 1972, pursuant to a charge filed on April 13, 1972, and duly served on Respondent. The complaint in Case 9-CA-7069 was issued on July 19, 1972 , pursuant to a charge filed on May 25 , 1972, and duly served on the Respondent . The two cases were consolidated for hearing by an order dated July 19, 1972. The consolidated case was heard on September 5, 1972, at Springfield, Ohio. Briefs filed by counsel on October 10, 1972, have been carefully reviewed and considered. For reasons hereinafter indicated , it is found that the heretofore determined jurisdictional questions of whether the Respondent is an employer subject to the Act and of whether the Respondent is engaged in operations affecting commerce can be relitigated in the present complaint case. Also for reasons hereinafter indicated it is found that the Respondent engaged in only one of the unfair labor practic- es alleged in the complaints. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS A. The Evidentiary Facts of Respondent's Operations as Related to the Question of Whether it Operates a Hospital (Nonprofit) as Distinguished From an Extended Care Nursing Home Both complaints under paragraph 2 allege that, "Respon- dent, an Ohio corporation, operates a proprietary nursing and convalescent home at Springfield , Ohio." The Respon- dent in its answers deny the allegation . Counsel for General Counsel at the trial orally amended the allegations to read, "Respondent, an Ohio nonprofit corporation, operates a nursing and convalescent home at Springfield, Ohio." 3 Respondent's denial of the original allegations also stands for the amended allegations except that it admits that its operations are nonprofit. As heretofore noted, Respondent's position is that it operates a hospital (nonpro- fit) exempt from the Act, not - tended nursing and con- valescent home. No testimony was offered at the trial in support or denial of the amended allegation . Instead both parties by agree- 3 The amendment to the complaint as stated above is clarified by questions put to counsel for the General Counsel The Home is actually located just west of Springfield (Joint Exhibit 1, Appendix E ) THE OHIO MASONIC HOME ment rely on the record 4 established in a prior representa- tion proceeding in Case 9-RC-9602 for the basic facts relat- ing to the amended allegation. The parties to the representa- tion proceeding were the Respondent herein, as "Employer," and the National Union of Hospital and Nurs- ing Home Employees, Local 1199H, an affiliate of Retail, Wholesale and Department Store Union, AFL-CIO, the Charging Party herein, as "Petitioner." A "Decision and Direction of Election" was issued in that proceeding by the Regional Director for Region 9 on July 21, 1972. The Regional Director found and concluded that the Respondent did not operate a hospital within the mean- ing of Section 2(2) of the Act. The Home filed a request for review of the Regional Director's Decision and Direction of Election. The Board by telegram dated August 8, 1972, denied the request on the ground that it "raises no substan- tial issues warranting review." The Respondent does not dispute the evidentiary findings of fact set forth in the Regional Director's Decision and Direction of Election on the operations of the Home. On the contrary, counsel for the Respondent stated at the trial herein that, "We are relying on the evidence presented pre- viously [i.e., in Case 9-RC-9602]." Moreover, the Respon- dent specifically disclaims any new evidentiary facts bearing on the question of whether the Respondent operates a hospital (nonprofit) exempt from the Act. For a description of Respondent's operations in the vicin- ity of Springfield, Ohio, I adopt the following undisputed evidentiary findings of fact from the Regional Director's Decision and Direction of Election. The Employer, a nonprofit Ohio corporation, operates a 40-acre facility known as the Ohio Masonic Home, at Springfield, Ohio. It is controlled by the Masonic Lodges of the State of Ohio and its general policies are formulated by a non-salaried board of trustees. It con- sists primarily of a rest home, which houses approxi- mately 170 residents, and an adjacent 330-bed structure referred to as Rickly Hospital. In order to be eligible for admission to either facility, an individual must have been a Master Mason for at least five years or the widow of an individual who had been a Master Mason for at least five years at the time of his death. Upon being accepted for admission, a resident is re- quired to assign all his assets to the Employer. These assets are used to defray the cost of the care extended the resident. If a resident has any assets left at his death, they become part of the Employer's estate. Once an individual is admitted by the Employer, he may remain for life without additional cost. The fact that his assets may be depleted is immaterial. The Employer must depend on contributions from various Masonic Lodges and revenues derived from certain endowment funds to defray all other expenses. The record discloses that the Rickly facility is a two- For convenience the full record in the representation proceeding, includ- ing the transcript of testimony and all exhibits therein, have been duplicated and made part of the record herein as Joint Exhibits I and 2 361 winged six-floor structure. Virtually all its patients are bedridden or mentally incapable of caring for their needs. It is not a member of the American Hospital Association, nor is it accredited by the Joint Commis- sion of Accreditation of Hospitals. The facility [Rickly Hospital] has no full-time medical staff per se, but has entered into an agreement with three local physicians to provide such medical advice and treatment as required by its patients. The medical services provided by these doctors are also available to the rest home patients. There is no internal or major surgery performed at Rickly. If a patient needs surgery, he is transferred to a local hospital. A patient is also removed to a local hospital if he becomes seriously ill or if he should be involved in an accident. . . . The facility does not provide care of any type for patients other than its own residents and does not accept non- resident patient referrals under emergency or any other circumstances. After an individual is accepted for admission by the Employer, he is assigned to its Rickly facility for a medical evaluation. Based on this evaluation, a deter- mination is made as to whether he will be assigned to Rickly or the rest home. The primary criteria consid- ered in making this decision is whether the resident is ambulatory and capable of self-care. If a resident is ambulatory and capable of self-care, he is assigned to the rest home; otherwise he is assigned to the Rickly facility. This is also the criterion used by the Employer in differentiating between Rickly and the rest home facilities in the instructions issued its employees. Once an individual is assigned to the Rickly facility, it is normally for life. If a resident should go on vacation, or if he is transferred to a hospital, his room at Rickly remains vacant in anticipation of his return. As of June 30, 1971, the Homes had 189 male residents and 288 female residents. As heretofore noted the average age of the residents is more than 80 years. Forty-seven of the residents are in their nineties. One has attained the age of 100. For the fiscal year ending June 30, 1971, the Home had 112 deaths, 99 admissions, and only 4 discharges. For the same fiscal year the Home had an operating income of $3,310,436 as against an operating expense of $2,771,802.5 Only two of the seven or more buildings on the situs of the Homes are used to house its residents; one is essentially a rest home which as heretofore noted houses about 170 ambulatory residents and the other is the facility known as the Rickly Memorial Hospital which houses approximately 330 bedridden residents or residents who are mentally inca- pable of caring for their needs. The remaining buildings are used for administrative or accessorial purposes. From the salient evidentiary findings set forth above and the full record in the representation proceeding, the Region- al Director and the Board, by its denial of the request for review of the Regional Director's decision, found and de- 5 Abstracted from the Home's Seventy-Fourth Annual Report as con- tained in Appendix E in Joint Exhibit I 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termined that the Home, although a nonprofit corporation, was not a corporation "operating a hospital" within the meaning of Section 2(2) of the Act and that the Respondent was therefore an employer within the meaning of the same section of the Act and accordingly subject to the Act. Discussion and Conclusions While the General Counsel contends that the prior juris- dictional finding in the representation proceeding that Re- spondent does not operate a hospital may not be relitigated in the instant unfair labor complaint proceeding under the authority of Greene County Farm Bureau Cooperative Associ- ation, Inc., 132 NLRB 1592 (1961), enfd. 317 F.2d 355 (C.A. D.C., 1963), and N.L. V. Casino Corporation d/b/a/ Silver Nugget, 174 NLRB 42 (1969), the fact is that the question of whether Respondent operates a hospital as against an extended care nursing facility has in fact been relitigated here under the issue raised by the amended pleading herein of whether Respondent "operates a nursing and convales- cent home Springfield." This follows from the fact that counsel for both General Counsel and the Respondent sub- mitted the question of proof on whether the Respondent operates a nursing and convalescent home as distinguished from a hospital, solely on the record established in the repre- sentation proceeding as neither offered or claimed any new evidence on the question and Respondent specifically dis- claimed any new evidence on the issue. In any event I am in agreement with Respondent that the same Court of Appeals for the District of Columbia which rendered the above cited Greene County Farm opinion is- sued a subsequent opinion in Amalgamated Clothing Work- ers of America v. N.L R B., 365 F.2d 898 (C.A.D.C., 1966), which in effect limits its earlier ruling in Green County Farm against the relitigation of jurisdictional issues in complaint cases to a prohibition of relitigation in refusal to bargain cases involving "the scope of the appropriate unit and em- ployees therein" as determined in a prior representation proceeding. The rationale given by the court for the prohibi- tion of the relitigation in refusal-to-bargain cases of prior appropriate unit determinations in representation proceed- ings is that to allow such relitigation would cause undue and unnecessary delays in representation elections contrary to Congressional intent. The present proceeding does not in- volve a refusal-to-bargain issue ; it involves only alleged interferences with the rights of organization. In such situa- tions the court in Amalgamated held that, "Where the reliti- gation issue is not refusal to bargain, but rather interference with rights of organization, the proceedings are not so relat- ed as to foreclose presentation to the Board of the underly- ing issues." See also, to same effect, Heights Funeral Home, Inc. v. N.L.R.B, 385 F.2d 879 (C.A. 5, 1967), and N.L.R.B. v. Union Brothers, Inc., 403 F.2d 883, footnote 8 (C.A. 4, 1968). Thus under the court's opinion in Amalgamated the issue herein of whether the Respondent "operates a hospital" is relitigable as the relitigation issue is not a refusal to bargain, but rather "interference with rights of organization." Wholly aside from the authority of the Amalgamated de- cision for the relitigability of the jurisdictional issue here involved, it is well settled that the existence of statutory jurisdiction may be raised at anytime. N.L.R.B. v. Peyton Fritton Stores, Inc., 336 F.2d 769 (C.A. 10, 1964). For these reasons I conclude that the question of whether the Respondent operates a hospital is relitigable in this un- fair labor proceeding. The principal evidentiary facts on that question have been set forth above by adoption from the Regional Director's findings of fact in his "Decision and Direction of Election." In addition I adopt by reference all the remaining findings of fact in Regional Director's Decision. Based on such evidentiary findings, I find and conclude, as did the Regional Director, that the Respondent is an employer within the meaning of the Act and adopt and make as my own the Regional Director's rationale for the decision as set forth in his Decision and Direction of Elec- tion and affirmed (in effect) by the Board, to wit: In view of the above [i.e., the findings of fact as in large part set forth above], and the record as a whole, noting particularly the fact that the facility does not accept emergency or other nonresident patients, that it has no full-time medical staff, that its patients are normally life-time residents, that it has no facilities for surgery, and that it transfers patients who are seriously ill or in need of surgery to other local hospitals, I find that the Rickly [Hospital] facility is not the type of institution which is granted statutory immunity under Section 2(2) of the Act. It is at most an extended nursing facility. The fact that the Employer characterizes itself as some- thing other than a nursing home does not remove it from the category of facilities over which the Board will assert jurisdiction. Accordingly I find that the Employ- er is engaged in commerce within the meaning of the Act. Evangelical Lutheran Good Samaritan Society, 191 NLRB 350; The Swanholm, an operation of the Martin Luther Foundation, Inc., 186 NLRB 45; Rosewood, Inc., 185 NLRB 193; Good Samaritan Hospital, 185 NLRB 198; Bethany Home for the Aged, 185 NLRB 191; Drex- el Home, Inc., 182 NLRB 1045. In addition and independently of the jurisdictional deter- minations in the Regional Director's Decision and Direc- tion of Election in Case 9-RC-9602, and based on an independent study of the entire record in that representa- tion proceeding as herein incorporated, I find and conclude that the Respondent does not operate a hospital within the meaning of Section 2(2) of the Act and that accordingly the Respondent is an employer within the meaning of the same Section 2(2) of the Act and therefore subject to prosecution for the unfair labor practices alleged in the complaint. Respondent's reliance on hospital definitions as a basis for the findings it seeks here that it operates as a hospital rather than a nursing home is without merit. There can be no quarrel with the definitions the Respondent cite of what constitutes a hospital; the difficulty is that Respondent's operations do not match such definitions. To take only the first definition of a hospital advanced by the Respondent, namely, that a hospital is "an institution for the treatment of the sick" (The American Illustrated Medical Dictionary, 21st Ed.), it is obvious from the record that the Respondent, The Ohio Masonic Home, is not a hospital but what its name implies , a home for aged Masons until death. For admission to the Home an applicant must show that he or THE OHIO MASONIC HOME she is unable to work and must turn over to the Home all his or her property and income; thus applicants for resi- dence who are accepted become virtually paid-up pension- ers of the Home for life. Although the majority of the present residents are incapacitated to the point of being nonambulatory due to the ravages of age, it is obvious that they did not enter the Home for treatment of their illnesses or incapacities but primarily for the nursing care they need or will need as the infirmities of old age take effect, until their death. By contrast a hospital is an "in and out" institution. Hos- pitals are not places where patients sign up to remain for the rest of their life. As hospitals are used for the treatment of the sick, the patient turnovers at hospitals are obviously tremendous whereas at the Home the turnover of residents is almost invariably by death only, as the average age of its 500 residents is over 80 years and the average annual death rate appears to be more than one-fifth of their number. Similarly, contrary to Respondent's contention, the Home does not meet the functional definition of a hospital enunci- ated by the American Hospital Association for registration as a hospital by the Association. The preamble of AHA's "Requirements for Accepting General or Special Hospitals for Registration" sets forth the following primary functional description of a hospital: Function: The primary function of the institution is to provide patient services, diagnostic and therapeutic, for a variety of medical conditions, both surgical and nonsurgical. As shown above, the primary function of the Rickly Hos- pital is to provide nursing care for the remaining life of its greatly aged residents. The Home is not and has never been registered as a hospital by the AHA or any other profession- al body and could not in any event meet the professional requirements by such bodies for registration, if for no other reason than that it does not maintain "an organized medical staff" as required by the AHA since the record herein shows that the Rickly facility has only a contractual arrangement with three local physicians 6 to provide such medical advice and treatment as are required by its residents. Finally, the Respondent seeks to distinguish the facts in the present case from those in numerous other cases I in which the Board found the employer to be a nursing home as a basis for obtaining a contrary finding that Respondent operates a hospital within the meaning of Section 2(2) of the Act, rather than a nursing home. But any realistic comparison of the factual situation in such nursing home cases with that in the instant case compels the conclusion that in their basic realities they are the same and that accordingly the holding in such cases are applicable here. As part of Respondent's attempt to distinguish its situa- tions from the cited cases in which the Board held that similar institutions are not statutory exempt hospitals but on the contrary are nursing homes, the Respondent points 6 At the time of the trial herein the number of physicians under such contractual arrangement had been reduced from three to two i Drexel Homes, Inc, 182 NLRB 1045, Evangelical Lutheran Good Samari- tan Society, 191 NLRB 35, Rosewood, Inc, 185 NLRB 193, Bethany Home for the Aged, 185 NLRB 191, The Swanholm, an operation of The Martin Luther Foundation, Inc, 186 NLRB 45 363 to the fact that its Rickly facility is registered as a "hospital" with Ohio's Department of Health pursuant to Ohio statute although it is conceded that there is no provision in the laws of Ohio for the licensing of hospitals within the State. The mere fact that the Respondent chose to register its Rickly facility as a "hospital" with the Ohio Department of Health does not change the historical and true character of the facility as a nursing home for aged and for the most part chronically ailing Master Masons into a hospital whose "primary function ... is to provide patient services, diag- nostic and therapeutic, for a variety of medical conditions, both surgical and nonsurgical," in accordance with the American Association of Hospital's definition of a hospital. On the contrary, in line with the facts, the Rickly facility fits precisely into the American Hospital Association's de- finition of a nursing home as: An establishment with permanent facilities that include in-patient beds; and with medical services, including continuous nursing services, to provide treatment to patients who require in-patient care but who do not require hospital services [Emphasis supplied.] [Bethany Home for the Aged, supra. ] B. Findings of Fact as Related to Issue of Whether Respondent Is Engaged in Operations "Affecting Commerce" Within the Meaning of Section 2(7) of the Act It is established under the pleadings that the Respondent in the course and conduct of its business in a representative period, as reflected by the past 12 months prior to the is- suance of the complaints herein, received gross revenues in excess of $100,000 and that during the same period pur- chased goods and materials valued in excess of $50,000 from suppliers located in the State of Ohio, each of whom, in turn purchased and received goods and materials valued in excess of $50,000 directly from manufacturers located outside the State of Ohio. Despite these admissions in its pleadings, the Respondent in its answers denies that it is engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. However, by its brief, it now appears that Respondent is no longer denying that it is engaged in "commerce" as defined in Section 2(6) of the Act, but that it still denies that it is engaged in operations "affecting commerce" as defined in Section 2(7) of the Act. In the aforementioned prior representation proceeding in Case 9-RC-9602, the Regional Director for Region 9 in his Decision and Direction of Election determined that the Respondent was engaged in "commerce" and in "opera- tions affecting commerce" as defined in Section 2(6) and (7) of the Act. General Counsel appears to take the position that this jurisdictional determination by the Regional Direc- tor, as in effect affirmed by the Board by its denial of Respondent's request for review thereof, is not relitigable in this unfair labor practice proceeding. For the reasons here- tofore stated above for allowing the Respondent to relitigate the question of its claimed exemption from the Act as an alleged nonemployer under the Act, I find and conclude that the Respondent is entitled to relitigate here its jurisdic- 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional claim that it is not engaged in operations "affecting commerce." On the question of whether Respondent's operations af- fect commerce, I adopt the findings of the Regional Direc- tor in his aforementioned Decision which reads as follows: The Employer further urges the Board to decline to assert jurisdiction over its operations on the basis that its impact on commerce is minimal. The Employer bas- es this claim on the fact that its non-profit status ren- ders it non-commercial in nature, that its residents, with one or two exceptions, are from the State of Ohio, and that it does not participate in medicare or other state or federal funded programs. The record discloses that all of its residents are from the State of Ohio or sponsored by an Ohio Masonic lodge. With the excep- tion of his hospital coverage, an individual's participa- tion in the medicare program is cancelled at the time he is admitted as a resident by the Employer. The hos- pital coverage is maintained in case it becomes neces- sary to transfer the resident to a hospital. The record further discloses that during the past year, the Employ- er received gross revenues in excess of $250,000. Dur- ing the same period, it purchased goods valued in excess of $50,000 from points outside the State of Ohio which it caused to be shipped directly in interstate commerce to its Springfield, Ohio location, The Employer's impact on commerce is neither influenced nor lessened by its non-profit status. The fact that it does not participate in medicare or other state or feder- al funded programs is not controlling. .. . Discussion and Conclusions Although the Respondent in its brief forthrightly admits that its "out-of-state purchases would be sufficient to estab- lish the requisite substantial impact on interstate com- merce," it nevertheless seeks a determination that `jurisdiction does not exist under existing Board criteria." In support of its position, Respondent points to the fact that its physical operations are wholly localized within the State of Ohio, that its economic support comes solely from sources within the State of Ohio, that it does not participate in any federally funded or administered programs, and that it does not receive any income from any private nationally operated health insurance companies. Respondent does not dispute the fact that the Board in Drexel Home, Inc., 182 NLRB 1045, established the policy of asserting jurisdiction over nonprofit nursing homes such as the Respondent's operations which receive annual gross revenue in excess of $100,000 as the Respondent herein does. But Respondent calls attention to a factual difference between its situation and that in Drexel Home which it urges calls for a different conclusion herein. This is that the Re- spondent does not participate as shown in the above find- ings in any federally funded or administered programs whereas the Board found that the Drexel Home participates "in various national health and welfare programs financed with funds flowing from the Federal Government." Re- spondent contends that the "primary basis" for the Board's assertion of jurisdiction in Drexel was its finding that Drexel participated in federally administered health insurance and nationally operated private health insurance companies. Be- cause of the absence of that factor in the present case, the Respondent seeks a finding that its operations, contrary to Drexel's, do not substantially affect commerce and an ulti- mate finding that the Board does not have jurisdiction of this proceeding. However, an analysis of the Drexel decision fails to show that the Board's "primary basis" for its holding of jurisdic- tion therein was Drexel's "participation in various national health and welfare programs" because the Board in the Drexel decision specifically states that such participation was one factor, "inter aha" for its decision. (182 NLRB at 1046) This appears even more clearly from a later sentence in the Board's Drexel decision which reads, "Accordingly, for all the reasons set forth herein and in University Nursing [168 NLRB 263], and because the Employer receives in excess of $100,000 in gross revenues per annum, we find that it will effectuate the policies of the Act to assert jurisdiction in this proceeding." (Emphasis supplied.) In University Nursing, the Board determined that operations of that employer's proprietary "home for the aged" substantially affects commerce and accordingly asserted jurisdiction over the facility. In Drexel Home, supra. the Board extended that jurisdictional holding over profitmaking nursing facilities to similar nonprofit facilities, such as is involved in the instant case. It would appear from a careful reading of University Nursing and Drexel Home that the basic reason for the assertion of jurisdiction over both proprietary and nonprofit nursing homes for the aged is the overwhelming growth of such facilities in recent years and resulting economic impact on the National economy. See University Nursing, 168 NLRB at 264. The idiopathic variation in Respondent's factual situa- tion that it does not participate in any nationally operated private health insurance companies cannot justify an ex- emption for the Respondent from the Board's general policy of asserting jurisdiction over nonprofit operations of nurs- ing facilities for the aged such as the Respondent's in view of the admitted fact that Respondent's operations do meet the $100,000 gross revenue jurisdictional standard estab- lished for such facilities. As stated by the Supreme Court in N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U.S. 224 (1963), "Whether or not practices may be deemed by Con- gress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activ- ities immediately before the Board." From all the evidence of record I find and conclude, as did the Regional Director in his prior Decision and Direc- tion of Election, that Respondent's operations affect com- merce within the meaning of Section 2(7) of the Act. II UNFAIR LABOR PRACTICES A. Background As heretofore noted, the Respondent has about 500 aged residents in its rest home and Rickly Memorial Hospital. It employs approximately 380 service and maintenance em- ployees to look after the residents, consisting for the most part of nurses aides and assistants, orderlies, cooks, kitchen helpers, housekeepers, ground keepers, custodial employ- THE OHIO MASONIC HOME ees, drivers, occupational therapy aides, physical therapy aides, and orderlies. Sometime early in 1972, the Charging Party, Union here- in, started a campaign to organize Respondent's service and maintenance employees. B. Alleged Unlawful Interrogation and Threats and Unlawful No-Solicitation and No-Distribution Rule Keith M. Bruster has been administrator and chief execu- tive of the Home since September 1970. Prior to the ap- pointment to his present position, he had some 10 years of experience as a hospital administrator in the East. By his own admission, Bruster became aware of the Union's efforts to organize the Home in March and April 1972. On April 7, 1972, he called two of the Home's nurses' assistants, Sandra Maurice and Kristin Ohlson, separately into the office of the Home's director of nursing, Mrs. MacDonald.8 To avoid confusion, the two nurses' assistants will be re- ferred to by their first names. At the time they were called in they had been employed at the Home for a little over 1 year. Each had signed a union authorization card prior to her interview by Bruster. Bruster testified that he made substantially the same statements to Sandra and Kristin in his separate talks with them on April 7, 1972. Preliminarily, Bruster's undisputed testimony establishes that the Home has a rule which forbids all nurses' assistants from discussing any personal matters or anything else that does not pertain to patient care with patients in order to avoid disturbing or upsetting the mental equilibrium of the Home's residents. All nurses' assistants are informed of the rule during training courses they must go through to become a nurses' assistant . Sandra and Kristin admit that they were so instructed during their training program and that they were fully aware of the rule at the time they were called in to see Bruster. Bruster testified that in his talk with Kristin on April 7, 1972, he informed her that while he was not accusing her of such conduct, it had been reported to him that she was soliciting other employees on the nursing floor to join the Union and that she had been heard discussing union prob- lems in front of the Home's residents. He reminded her of the rule against disturbing and upsetting residents with out- side problems. He told her that she could talk all she wanted about the Union at break and lunch periods, but instructed her that she was to abstain from engaging in union talk on the nursing floors and in the presence of the Home's resi- dents. Bruster testified that he made the same general remarks and instructions to Sandra in his separate talk to her earlier that same day. He further denied questioning or threatening either Kris- tin or Sandra concerning their union activities. Kristin's testimony of what Bruster had to say to her at the April 7 conference is substantially in accord with Bruster's testimony. In her direct testimony, Kristin made 8 Although present at these talks, Mrs McDonald was not offered by either party as a witness 365 no claims that Bruster interrogated or in any way threat- ened her concerning her union activities. On the contrary, her testimony shows that Bruster told her "he didn't care" what she thought about unions and that if she wanted to join a union, it was all right with him. But her testimony shows that Bruster did tell her that it had come to his atten- tion that she had been passing out union leaflets such as the one he held in his hand and that he ordered her to refrain from passing out such union literature "on working time" and also to refrain from talking to other employees about the Union "on his time," meaning, the Respondent' s time. He told her, however, that if she wanted to talk about the Union to other employees, she was free to do so at lunch- breaks. Sandra testified that Bruster opened his separate inter- view with her by telling her that whatever the employees of the Home did with their own time and money on union activities was their own business, but then "went on to ask" if she had received anything in the mail from the Union and if she had signed a card for the Union and if she had been passing out union literature. Sandra's testimony shows, however, that the main thrust of Bruster's talk with her was his order that she refrain from passing out union literature or talking to other employees about the Union "on Company time" and that in this con- nection he further told her that any one caught engaging in such conduct "on Company time" would be fired on the spot immediately. The record shows that at the time Bruster ordered Kristin and Sandra to refrain from union solicitations and from the distribution of union leaflets on worktime, the Respondent had no similar or parallel rule against solicitation on work- time for causes other than union membership or against the distribution of literature on worktime unrelated to union matters. On the contrary, the record shows that the Home freely permits employees to solicit and pass out brochures on worktime for such things as Avon, Stanley products, and Tupperware. Discussion and Conclusions In the complaint in Case 9-CA-6964, it is alleged that the Respondent's supervisor, Bruster, on April 7, 1972, interro- gated an employee about her union activities in violation of Section 8(a)(1) of the Act. The testimony of Sandra Maurice was offered in support of that allegation. As shown in the findings, Sandra testified that when she was summoned to see Administrator Bruster on April 7, 1972, he questioned her about whether she had received anything in the mail from the Union, whether she had signed a union card, and whether she had been passing out union literature. Bruster flatly denied making any such inquiries of Sandra or of Kristin. However, only Sandra claimed interrogation into her union activities by Bruster. There is nothing in Kristin's testimony to suggest that Bruster interrogated her. In this directly conflicting testimony between Bruster and Sandra, I credit Bruster's denial that he had questioned Sandra about her union activities for several reasons. One is that since both Sandra and Kristin were called in by Bruster primarily for a warning against talking to resident patients about their union activities, it is not very likely that 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bruster would interrogate only Sandra about her union ac- tivities and not Kristin. Another reason for crediting Bruster's denial is that the testimony of both Sandra and Kristin shows that Bruster went out of his way to tell them at their separate meetings with him that whatever union activities they engaged in on their own time was strictly their own business . Thus, Sandra's testimony that Bruster inter- rogated her about her union activities is inconsistent with her open admission that Bruster opened the interview with his assurance to her that the Respondent's employees were free to engage in any union activities they desired if done on their own time and money. It does not seem likely that Bruster as the responsible general manager of the Home would make that assurance and then immediately violate the assurance by questioning Sandra about whether she had received anything in the mail about the Union or had signed a union card. Finally, I credit Bruster's denial because he impressed me as having the superior memory and a personal integrity and sincerity at least equal to that of Sandra. I find and conclude that General Counsel failed to sub- stantiate the allegation of the complaint that Bruster on April 7, 1972, interrogated an employee, Sandra Maurice, about her union activities . Accordingly, that allegation will be recommended for dismissal for failure of proof. The next issue for resolution arises out of the allegation of the complaint in same Case 9-CA-6964 that on April 7, 1972, the Respondent through Bruster orally promulgated an unlawfully broad no-solicitation and no-distribution rule "during employees' non-work time" and "in non-work areas " (Emphasis supplied.) For proof of this allegation, counsel for General Counsel relies on the same testimony given by Kristin Ohlson and Sandra Maurice on the instructions they received from Bruster at their separate conferences with him on April 7, 1972, as set forth in the findings of fact above. The testimony of neither Kristin nor Sandra shows that Bruster ordered them to refrain from soliciting other em- ployees "during non-work time" or from passing out union literature "in non-work areas," as alleged in the complaint. On the contrary, their testimony shows that Bruster ordered them to refrain from such conduct only "on working time." There is nothing in the testimony of either Kristin or Sandra to show that Bruster ordered them to refrain from soliciting union support "during non-work time" or from distributing union literature "in non-work areas." Although this is evi- dent from the findings of fact above based on the testimony of Kristin and Sandra, it is more clearly brought out by the verbatim testimony of the two employees. Thus under her direct examination by counsel for General Counsel, Kristin testified as follows: A. [By Kristin ] I went into the room and sat down and Mr. Bruster came in and he pulled a Union leaflet and said, "I have been told you have been handing around such literature as this." Q. You saw it? A. Yes. He told me he didn't care what I thought and, if I wanted to get a Union and pay monthly dues, it was all right with him, but that I wasn't to do these things on his time. . . . [Emphasis supplied.] Q. Did he say anything about talking? A. Yes, and that included talking about the Union, discussing it with fellow employees. Q. What did he say in his words? A. Not to talk about the Union with other employ- ees on his time; that, if I wanted to talk about the Union with someone, to go up to them at the lunch hour and say that I would like to talk to them about it and could we talk about it later, maybe at their house. [Emphasis supplied.] Q. Did he mention passing out leaflets? A. He said not to do it. Q. Did he say when, where? A. Not on working time. [Emphasis supplied.] Q. Did he say anything else about that? A. Well, at the end of the conversation, he said, "This is an order. Do you understand what that means?" Similarly, Sandra's verbatim testimony likewise shows that Bruster ordered her to refrain from union solicitation and the distribution of union leaflets only on company time. Under direct examination by counsel for General Counsel, Sandra testified: Q. Did he [Bruster] say anything else during that conversation? A. Well, you know, he made the statement that there was not to be any union literature passed out on Com- pany time and that anyone caught doing this on Compa- ny time . . . would be fired immediately on the spot. [Emphasis supplied.] Q. Did he [Bruster] mention anything about passing out literature on Company time? .. . A. Not pass out literature or talk about the Union on Company time. [Emphasis supplied.] In view of this complete failure of proof of the allegation of the complaint that Respondent on April 7, 1972, promul- gated a no-solicitation and a no-distribution rule applicable "during employees' non-work time" and "in non-work ar- eas," the allegation will be recommended for dismissal. Finally, in connection with the event of April 7, 1972, the complaint under two subparagraphs in Case 9-CA-6964 alleges threats by Respondent against two employees in violation of Section 8(a)(1) of the Act. Under paragraph 5(b) of the complaint it is alleged that Respondent threatened an employee with discharge for dis- tributing union literature in nonwork areas or for soliciting on behalf of the Union in nonwork time. The testimony of Sandra was also offered in support of that allegation. Under paragraph 5(c) it is alleged that Respondent threatened another employee for distributing union litera- ture in nonwork areas and soliciting on behalf of the Union in nonwork time. The testimony of Kristin was offered in support of that allegation. In the case of Sandra , her testimony, as shown in the above findings, shows that Bruster told her he would fire any employee who passed out union literature "on Compa- ny time." This is denied by Bruster. In the case of Kristin , there is no direct evidence that Bruster made any such direct threats to her with reference THE OHIO MASONIC HOME 367 to the distribution of literature or the solicitation of union support "on Company time," but it can be inferred from his strict order to her to refrain from engaging in such conduct "on Company time" that she would be fired if she disobeyed the order. Bruster also denied making any threats to her. It is not necessary to resolve these conflicts of testimony because the complaint does not allege threats of discharge for distributing union literature or for soliciting union sup- port on company time, it charges only threats of discharge for the distribution of union literature in nonwork areas and for soliciting in behalf of the Union during nonwork time. As it was found above that the Company never issued any rules against the distribution of union literature in nonwork areas or against union solicitation on nonwork time and as the record is totally devoid of any threats of discharge by the Respondent for such conduct, it will be recommended that the subparagraphs of the complaint here under consider- ation be dismissed for failure of proof? In summary I find and conclude that there has been a total failure of proof on all of the unfair labor practices alleged in the complaint in Case 9-CA-6964 and according- ly I will recommend a dismissal of that complaint in its entirety. C. Alleged Unlawful Surveillance or Impression Thereof James R. Goff is the supervisor of the Home's dietary department. The complaint in Case 9-CA-7069 charges Goff with engaging in surveillance and/or creating the im- pression of engaging in surveillance of Respondent's em- ployees while they were engaged in activity on behalf of the Union. The Respondent in its brief states that it "does not defend the apparent surveillance activities of Mr. Goff," but ap- pears to seek condonment for Goff's conduct on the ground that Administrator Bruster "neither ordered nor suggested he take such action." Briefly the facts on the incident here under consideration are these. The testimony of Betty Suttles, one of Respondent's housekeeping aides, and the aforementioned Sandra Maurice, show that they saw Goff on May 18, 1972, sitting in his parked car near the YWCA building where the Home's employees were having a union organizational meeting and that he was observing the identity of Respondent's employees as they were entering the YWCA building. Goff did take the stand to deny the conduct ascribed to him as shown above. Bruster denies that he ordered or suggested to Goff that he stand watch over who was attend- ing the union meeting. Discussion and Conclusion Under the above undisputed findings and Respondent's admission that it does not defend Goff's conduct as set forth in the findings, it is found that the Respondent has engaged in unlawful surveillance of the union activities of its employ- 9 If it were necessary to resolve these conflicts of testimony, I would credit the testimony that such threats were made or implied ees in violation of Section 8(a)(1) of the Act. It is well established that proscribed conduct by a lower echelon su- pervisor is not excusable because his conduct was not au- thorized or within the knowledge of the supervisor of the subordinate supervisor. D. Remaining Alleged Unfair Labor Practices The remaining issues in Case 9-CA-7069 revolve around Respondent's efforts to stop its employees from wearing union buttons on the job. The Respondent in its brief virtually admits the various allegations of the complaint setting forth the actions it has taken to stop the wearing of union buttons on the job, but seeks to defend and justify its antiunion button actions on the ground that they were made in the interest of protecting its aged and for the most part nonambulatory and ailing residents from avoidable concern and worry over what might happen to them if the employees who looked after their physical wants and comfort went on strike. For that defense the Respondent relies on the Board' s recent deci- sion in Evergreen Nursing Home, 198 NLRB No. 101. Briefly summarized the undisputed facts on the union button issues are as follows. On June 15, 1972, some of the employees at the plant began wearing blue union buttons of about the size of a quarter with white print reading "Local 1199" in the middle and "Hospital Division AFL-CIO" around the border. Among the employees wearing such buttons were the aforementioned Sandra Maurice and Betty Suttles. Bruster by an interphone call on June 15 ordered Sandra to remove her button. She complied. The next day Betty was ordered to remove her button by her supervisor. She likewise complied. Later that same day Bruster called a meeting of the midnight shift and instructed the employ- ees that they would not be allowed to wear union buttons on worktime but that they would be free to wear their but- tons during breaks and lunch periods. Bruster issued the rule against the wearing of union but- tons on worktime because in his own words ". . . it was an unnecessary exposure of the resident to outside problems, which they were all very concerned about. They worry every day about their security and what would happen to them if the employees were to walk off. The emotional concern of the residents was my major concern." This statement by Bruster of his motivation for the an- tiunion button rule is credited. With his experience as chief executive and administrator of the Home whose residents average more than 80 years of age and who for the most part are nonambulatory and in some cases senile, I find that Bruster was qualified and competent to judge that manifes- tations of union activities among the employees of the Home as evidenced by the wearing of union buttons would have a tendency to worry and upset the Home's residents. Counsel for General Counsel produced no evidence to show that the Home's residents would not be upset by the appear- ance of union buttons on the uniforms or clothing of the employees who looked after them. At the time of Bruster's promulgation of the rule against the wearing of union buttons on worktime, the Home had no similar rule against the wearing of buttons unrelated to union activities, such as the so-called "Smile" buttons or 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Jesus Saves" button. The record shows that the Home's employees were free to wear and have worn such buttons. The record further shows that the wearing of "Smile" or religious buttons has no disturbing effect on the Home's residents whereas the display of union buttons on the per- sons of employees would have a worrying effect on the residents. On July 17, 1972, Bruster fired Coram Miracle, a part- time food service porter who holds a full-time job elsewhere in a union machine shop, because of his adamant refusal to remove his Local 1199 union button from his clothing. Mir- acle "moonlights" at the Home after work hours at his regularjob. The discharge took place on the very first day Miracle wore his union button, some 6 months after he had started his part-time job at the Home. He has had perma- nent employment at his regular job for more than 20 years and is a staunch and strong supporter of unions. In his moonlighting job at the Rickly Hospital, Miracle's principle duty was to push food carts from the kitchen to the various nurses' stations on the five floors of the Rickly facility. Miracle himself did not serve or wait on the residents, but could be observed by any residents who happened to be in the corridors while Miracle was delivering or returning the food carts or mopping the floors of the corridors. About a week after his discharge , Bruster made Miracle an offer of reemployment on the condition that he refrain from wearing a union button while on duty at the Home. Miracle declined reemployment under that condition be- cause of his strong union feelings and sympathies. Discussion and Conclusions As noted, the Respondent admits that it promulgated a rule against the wearing of union buttons on the job, that it threatened to discharge employees who deliberately vio- lated the rule, and that it actually discharged Coram Mira- cle for his refusal to remove his union button from his person while on duty at the Home. Respondent's defense for these admitted actions is that its primary function and business purpose is to operate the Home for the comfort and care of its aged residents and that the antiunion button measures it has taken are necessary for the protection of the mental and physical health of the residents. The record sustains that defense. The basic facts show that the average age of the 500 residents of the Home is over 80 years; that nearly 50 of the residents are in their 90's; and that virtually all of the 300 residents who occupy the Rickly facility are bedridden or mentally incapable of caring for their needs . For all practical purposes the Home is the permanent residence for its residents as the conditions for admission to the Home is an inability to make a living, the need for a home, and the requirement that the applicant transfer all his assets and income to the Home. Under these circumstances the residents are more meaningly described as the wards of the Home to whom the management owes the highest duty. The record stands undisputed that due to the advanced age and physical and mental deterioration of more than two-thirds of the residents, the Home has an established policy and rule that its employees must refrain from discuss- ing their personal problems or any other outside problems with the residents in order to avoid upsetting them or caus- ing them unnecessary worry or concern. It was as an exten- sion of this general policy and rule that Bruster as the administrator of the Home directed the employees to refrain from wearing union buttons on their persons while on duty. Bruster's uncontradicted testimony establishes that news of union activity among the employees at the Home, as evi- denced by the wearing of union buttons, would have a tendency to worry and disturb the residents as to what might happen if the employees went on strike, as they are utterly dependent upon the employees of the institution for their daily food and care. Even without Bruster's testimony, as the trier of the facts I would infer and find from the advanced ages of the residents and the serious physical and mental infirmities of the greater majority of the residents that the wearing of union buttons on the persons of the employees would have a tendency to worry, disturb, and upset the residents. That the Respondent's rule against the wearing of union buttons was and is intended solely for the protection of the health of the residents and has no antiunion motivation is evident from the fact that while Bruster prohibited the Home's employees from wearing union buttons on the job, he let it be known, as shown by the testimony of employees themselves, that they were entirely at liberty to wear their buttons at rest breaks or during their lunch periods. Thus the employees were free to show their solidity amongst themselves by the wearing of union buttons, but were pro- hibited only from upsetting and exploiting the aged and infirm residents by a showing of their union activities through the display of their union buttons on their persons. Although employees have a well-established right to wear union insignia at work,10 it is equally well established that in "special circumstances" an employer in the interest of maintaining production may lawfully prohibit the wearing of such insignia." As in the instant case, the chief function of the Respon- dent is not production in the usual industrial sense of the term, but rather the maintenance of the health and welfare of its aged and ailing permanent residents, I find and con- clude that the necessity to protect the health and welfare of the Home's residents constitutes "special circumstances" justifying the Respondent's prohibition of the wearing of union insignia by the Home's employees while actually on duty. Accordingly, I will recommend the dismissal of all parts of the complaint in Case 9-CA-7069 that charge viola- tions of Section 8(a)(1) and (3) of the Act that stem from Respondent's prohibition of the wearing of union insignia on the persons of its employees while at work. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, the Ohio Masonic Home, an Ohio non- profit corporation, is an employer engaged in commerce and in operations affecting commerce as defined in Section 10 Republic Aviation Corporation v N L R B , 324 U S 793, 801-803 (1945). " Mayrath Co, 132 NLRB 1628, enfd 319 F.2d 424 (C A 7, 1963); United Parcel Service, Inc, 195 NLRB 441, Evergreen Nursing Home, supra THE OHIO MASONIC HOME 2(6) and (7) of the Act, respectively. 2. National Union of Hospital and Nursing Home Em- ployees, Local 1199H, an affiliate of Retail, Wholesale and Department Store Union , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By engaging in surveillance of employees engaged in activity in behalf of the aforementioned Union, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. That Respondent has not engaged in any of the other unfair labor practices in violation of Section 8(a)(1) of the Act as alleged in the complaints in Cases 9-CA-6964 and 9-CA-7069. 369 5. By discharging Coram Miracle on July 17, 1972, Re- spondent has not engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act. 6. The unfair labor practice described in paragraph 3 above affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom. [Recommended Order omitted from publication.]