Continetal Manor Nursing Home

CONTINENTAL MANOR NURSING HOME Commercial Management, Inc. d/b/a Continental Manor Nursing Home and Local 150, Service and Hospital Employees International Union, AFL- CIO. Case 30-CA-3502 November 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 5, 1977, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 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 the Respondent, Commercial Management, Inc. d/b/a Continental Manor Nurs- ing Home, Randolph, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act. Based on charges filed on February 5, 1976,1 and amended March 17, a complaint was issued on March 31, presenting allegations that Commercial Management, Inc. d/b/a Continental Manor Nursing Home, hereinafter referred to as Respondent, committed unfair labor practices within the meaning of Section 8(a)(1) and (3), and Section 2(6) and (7) of the Act. Respondent filed an answer denying that it committed the violations of the Act alleged. Upon due notice, the case was heard before me at Juneau, Wisconsin, on June 10 and 11. Representatives of all parties entered appearances and had an opportunity to participate in the proceeding. Based upon the entire record, including my observation of the witnesses, and after due consideration of briefs and arguments, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Commercial Management, Inc., a division of CM Corporation, an Iowa corporation, owns, leases and maintains management contracts for the operation of proprietary nursing care facilities located throughout the Midwestern United States, including a leased facility located in Randolph, Wisconsin, the only facility involved herein. During the calendar year preceding issuance of the complaint, a representative period, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $S100,000 from the operation of its nursing home facilities. During the same period Respondent received goods and materials valued in excess of $50,000 directly from points located outside the State of Wisconsin. Respondent admits and I find that it is now, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in "com- merce" and operations "affecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. 11. THE LABOR OROANIZATION The Charging Party, Local 150, Service and Hospital Employees International Union, AFL-CIO, hereinafter referred to as the Union, is now, and has been during all times material herein, a labor organization within the meaning of Section 2(5) of the Act. I All dates are in 1976 unless otherwise specified. 233 NLRB No. 104 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues I. Whether Respondent denied an employee a promo- tion because she was a member of the union bargaining committee. 2. Whether interrogation and polling of employees by Respondent's officials was privileged under Section 8(g) of the Act. 3. If so, whether such interrogation must encompass the same assurances and safeguards required by the Board in other circumstances deemed privileged. 4. Whether Respondent's officials during such interro- gation and polling threatened employees with discharge if they indicated they would go on strike, or earlier, through their committeewoman, threatened to fire employees if they struck. 5. Whether Respondent's officials informed employees that benefits were being withheld due to the presence of the Union. B. Background The facility involved is a proprietary nursing care center consisting of 84 beds where Respondent employs approxi- mately 65 employees in a single-floor construction building under the supervision of Thomas Barker, administrator. It is stipulated that at all times material herein Barker, who served on Respondent's negotiating committee, was an agent and supervisor and acted on behalf of Respondent; and that David T. Casper, regional administrator of CM Corporation and director of employee relations for Com- mercial Management, Inc., a division of CM, and who also served on Respondent's negotiating committee, was an official and acted as an agent of Respondent. Additionally, it is undisputed that Sue Satter, director of nursing, and Hazel Walsh, assistant director of nursing, are supervisors within the meaning of Section 2(1 1) of the Act. On January 7, 1975, the Union was certified by the Board as exclusive bargaining representative of the approx- imately 45 employees in the bargaining unit. Thereafter, bargaining proceeded without an agreement being reached.2 Employee representatives on the Union's bar- gaining committee were Madge Price, Helena Stiemsma, and Joyce Spranger, nursing assistants, otherwise referred to as nurses aides, who accompanied various union representatives. At a union meeting of employees held on January 9, employees tentatively voted to strike. A decision was made, however, that all unit employees should be afforded the opportunity to cast a written strike ballot, and such ballots 2 Although Respondent claims that a bargaining impasse had been reached before the events herein, I find it unnecessary to decide that question as it will not resolve the issues presented herein. 3 The credibility resolutions herein have been derived from a review of the entire testimony in the record and the exhibits, with due regard for the logic of probability, the special interests involved, the demeanor of the witnesses, and the principles of N. L.R.B. v. Walton Manufacturing Company & Loganville Pants Company, 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to any finding herein, their testimony has been considered and discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. were sent by the Union to unit employees on January 12. By letter dated January 14, the Union advised Respondent that it was "serving notice effective January 16, 1976, of our intent to strike effective Monday, January 26, 1976, at 12:01 a.m." Respondent claims not to have received this letter until the morning of January 17. C. The Alleged 8(a)(3) Discrimination The testimony which I credit 3 reveals that just before the 1975 school term was to start, Stiemsma learned that a teacher in the school her children attended was transferring to another school and was moving from the area. The wife of this teacher, Gay Wynveen, held the position of food service supervisor at the Randolph nursing home of Respondent involved herein. Assuming that position would be available, Stiemsma, that very morning, spoke with Barker of this news and of her interest in the food service position to be vacated by Wynveen. Barker said he had only heard that morning of Wynveen's impending depar- ture4 and told Stiemsma that if she wished to work in the kitchen area she would have to file a request for transfer from the nursing department to the dietary department. Stiemsma returned to the nurses' station and wrote out such a request which she handed to Barker.5 Stiemsma further testified that she also signed, as indication of her interest, the notice on the bulletin board announcing the vacancy, posted just before or just after Wynveen left on September 12, 1975.6 During September 1975, Stiemsma saw an advertisement in the Beaver Dam newspaper by the local Maraine Technical School inviting enrollment and listing the various courses being offered in night classes at the vocational school, with registration and instruction begin- ning on various dates and hours in late September and early October. A food service supervisor course was listed. Stiemsma brought the ad to the attention of Barker and suggested perhaps she should be taking the food service supervisor course. Barker told her it was not necessary, and they then discussed some of the other subjects offered in the ad. Barker did not say why it was not necessary and Stiemsma did not ask him. Because of Barker's reply, Stiemsma made no inquiry of the school regarding the course. Barker testified that other employees in addition to Stiemsma expressed an interest in the food service supervisor position; that Wynveen had recommended for the position Sue Regnerus, an employee, who was on extended maternity leave; that he took no new applications but used the original employment applications of the three employees expressing an interest; and that when Stiemsma 4 Barker fixed the time when he learned of Wynveen's planned departure as during the first week of September 1975. after Labor Day which fell on the first day of the month. s Barker stated he did not deny receiving such a written request but did not recall receiving it and had looked for, but did not find, a written request for transfer from nursing to the dietary department in Stiemsma's personnel file. 6 According to Barker, he checked the file containing previously posted memoranda and found none covering the food service supervisor opening. He further testified that he did not personally post such a notice, nor did he authorize anyone else to do so. 666 CONTINENTAL MANOR NURSING HOME spoke with him, Barker told her it was not necessary for her to rewrite an application but that they would consider her for the position and if she was selected she would be transferred to the dietary department.7 Barker purportedly did nothing about filling the position until September 23, 1975, when he received a call from Regnerus. In that conversation, Barker offered Regnerus the food service position which she indicated she would be able to accept in a month or 6 weeks, conditioned upon the uncertainties related to impending surgery for her infant. According to Barker, the food service job required a professional certificate which Regnerus had obtained at Respondent's expense in May 1975, at the same time as Wynveen whom Respondent also sponsored in the state technical school in order to meet the requirements of Federal and state regulations necessary for the Randolph home to participate in a Federal reimbursement program of the Department of Health, Education and Welfare." Regnerus reported to work as food service supervisor in mid-November 1975. During the period from September 12 until mid-Novem- ber 1975, Barker was aware that Respondent was out of compliance with the aforesaid Federal assistance qualify- ing regulations as well as the state regulations in this respect in that he had no staff member in charge of food service who was qualified by formal education or experi- ence, or who was attending a qualifying course under appropriate professional planning. After he offered the food service supervisor position to Regnerus, Barker enlisted the assistance of first cook Sandy Marwitz, the I It appears that over 10 years previous to this time Stiemsma had approximately 4 years of employment expenence in food service duties of a type that may have qualified her for this position, which she had not included on her original employment application on file with Respondent in favor of listing more recent employment experience. There is no evidence that she ever brought this experience to the attention of any official of Respondent. 8 The regulation referred to which took effect January 29. 1974. required that the nursing center's dietary program must be under the direction and guidance of: A designated staff member suited by training or experience in food management or nutrition ... responsible for planning and supervision of menus and meal service. The accompanying interpretative guidelines listed for this part of the regulations indicated that the designated staff member would meet this requirement if that individual: 1. Is a qualified dietitian; 2. Is a graduate of a dietetic program, corresponding or classroom approved by the American Dietetic Association; 3. Is a graduate of a State-approved course that provides 90 hours or more of classroom instruction in food service supervision and has experience as a supervisor in a health care institution with consultation from a dietitian; or 4. Has training and experience in food service supervision and management in a military service equivalent to the program in (2 or 3). It appears that inspectors from the State, in enforcing its own administrative code as well as on behalf of the Federal agency, audit nursing home facilities unannounced and at irregular intervals in order to determine compliance in respect to all applicable regulations. Such audits are on a spot check basis and, if anything is found to be less than appropriate, the result is a deficiency report. Such deficiency must be corrected, or a satisfactory arrangement made, before relicensing or recertification of the facility will be given. Respondent was audited in May 1974, and found deficient in professional planning requirements because it had no staff member over food service meeting the specifications of the regulations quoted above. It was permitted to attain compliance by agreeing to enroll incumbent other employee who had indicated her interest in the position, to assume and perform, under his personal consultation on significant problems, most of the duties of the food service supervisor.9 Stiemsma observed the performance by Marwitz of some of the added duties and on the basis of this observation, various experiences related to her by Marwitz, and her knowledge of their comparative experience and seniority, Stiemsma concluded that Marwitz had been given the position and that Barker had ignored her seniority. Thus, at the November 8, 1975, bargaining session at the Pfister Hotel in Milwaukee, when job posting and seniority were again being discussed,10 Stiemsma accused the Company of ignoring seniority and failing to give senior employees an opportunity to better themselves. She then asked whether the food service supervisor position had been filled as she had received no notification. Casper replied that the job was a department head position and asked Stiemsma whether she was willing "right then and there" to come to their side of the bargaining table. Casper turned to Barker and told him to take Stiemsma out into the hall and explain to her "once and for all" the food service position. In the hallway, Barker pointed out to Stiemsma that she was on the union negotiating committee and that the food service supervisor job was a department head position in which she would have to be on the Company's side of the bargaining table and could not be a union negotiator." Barker then asked whether she understood and Stiemsma replied that she did. When asked what was said when he employees in the course given by a state vocational school the following September, when Wynveen and Regnerus were registered. As noted above, they received their certificates of completion in May 1975. 9 Marwitz, a niece of Stiemsma, was a fairly new employee of Respondent compared to Stiemsma's tenure and, like Stiemsma. did not possess a certificate of professional food service training. There is no evidence, however, that Barker took any steps to ascertain this as a fact with respect to either applicant for the position. There is no evidence establishing Marwitz' experience other than the fact she had been employed by Respondent over 3 but less than 6 months at the time. to It appears that at various sessions these subjects were discussed and Stiemsma made frequent reference to her interest in the food service supervisor position. At the October 7, 1975, bargaining session Stiemsma expressed her concern that someone over whom she had seniority was being considered for that position. At that time the question concerning the impact of seniority was raised where the qualifications of two applicants are equal and Respondent's negotiators indicated they would seek legal advice. I do not credit Barker's testimony that he had no knowledge of Stiemsma's interest in the job until this time in October and that he told Stiemsma he would consider her application, despite having already offered the job to Regnerus, because of the remote possibility that Regnerus might not return. Such assertion is inconsistent with other undenied or credited testimony, including the conversation concerning the ad for the night classes. Nor do I credit his assertion that later in October, after reviewing her personnel file and finding no indication of qualifying experience, he met Stiemsma in the hallway of the home as she was leaving work and informed her, in the presence of Satter, that apparently she was not qualified and that she gave no response. I note Satter's testimony that she heard this from inside a door 3 feet away as they were passing, and Stiemsma's testimony that such a conversation never occurred. Barker's testimony in this respect is not only inconsistent with statements made at other events but would attribute to Stiemsma a silence which, from my observation, and when compared with other events of record, would be completely out of character for her. l Variations given by Stiemsma are that food service supervisor was a department head job and that she was on the negotiating committee; that as a department head she could not fill that position and be in on the negotiations; and, that because she was in on negotiations, she could not fill that position. Similar variations appear in the testimony of Price. 667 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Stiemsma had a conversation outside the meeting room on November 8, Barker replied: We had a conversation outside of the room in which the negotiations were actually taking place. I again informed Mrs. Stiemsma that apparently she wasn't qualified to be food service supervisor, [I] had no additional information received from her at that time to make any other considerations. And I indicated to her at that time to the effect that we felt that we were really doing her a favor. We explained to her that because of the regulations being what they are, should we promote her to the position, evidently as time would go on and the State would come in, find out that she's not qualified, we would be in a position in which we would have to replace her as food service supervisor . . . She paused briefly as giving thought, and kind of laughingly came back to me and says well, I see that now. Well, I see that .... I shared with her that-the example that Mr. Casper had given today in his testimony. Other than that, there wasn't anything more said. Casper testified that, because of her repeated expressions of interest in the food service supervisor position, he told Barker of an example in the industry: The example was, I have heard of practices where industry might take someone out of the bargaining unit who has been causing a problem and may promote them to a supervisory position, and then relieve them of their duties .... And I further told him that this was absolutely inconsistent with the philosophy of the CM Corporation, and we will not do it and not permit it to be done. And that possibly this explanation-and this should be told to Mrs. Stiemsma so that she can further understand why Mr. Barker took the action he did when he filled the position. Casper suggested to Barker that the latter should speak with Stiemsma and explain to her that: There is a practice which we totally abhor, we don't subscribe to it; but the fact is that it happens, that management sometimes will take an individual out of the bargaining unit, one who has given them trouble- quotes. And will promote them to a position of supervisor and put them in there and then fire them. Running the risk that they'll have to pay Unemploy- ment Compensation. I said, Tom, the CM Corporation doesn't operate this way. But I think it's high time, because of this situation cropping up again and being somewhat disruptive, that maybe she ought to get the message. And I'd like to be there. Tom agreed, felt it was time. And so at an appropriate time, the three of us spoke about it .... And at that time Tom went through the whole thing again .... I don't know that I can quote him, but I can tell you what he said. 12 Stiemsma testified she first learned of the certificate requirement "as a qualification when you apply," sometime in January 1976, prior to which she had assumed that if you received the job you would be sent to school as Wynveen had been. She denied that Barker told her that without the He outlined two things. First of all, that she was not qualified. And I don't really know whether that was a reminder, whether she had heard it. But I just don't know. He said, Helena, you know there are certain qualifications which you did not possess. And, to my knowledge, do not possess now. Probably as important or more important, and I think you should be aware of this, is that this could happen. And then he related the situation that I just related where you could promote somebody and then conceivably fire them. And he continued to say, Dave has told me, I was aware of it. And I subscribe to the fact that the CM Corporation doesn't operate this .... We also spoke about the fact that because she is not qualified by Federal Regula- tions, that at the time the State came in, and they do it periodically and come in unannounced, that it would be necessary for him then to make a change. This was explained to her. Casper fixed the time this took place as at the early December bargaining session or the prior one. Casper was asked by counsel what, if anything, Stiemsma's response was and Casper replied: I can assure the Court that she gave indication by words that she appreciated this. Wasn't necessarily in agreement, but apparently we had brought something to her attention that she was not aware of or at least had not admitted to us and we had never spoken to her about it before. Stiemsma denied that Barker ever told her she was not qualified, ever mentioned her application, or that before Regnerus returned she was told of any requirement that she possess a food service certificate before she could be considered for the position.1 Stiemsma did not mention in her testimony the example given by Casper, and which Barker assertedly repeated to her on this occasion, of the device utilized by some employers to rid themselves of a unit employee who, in Casper's words, gave them "trouble" or a "problem" by promoting that employee to a position of supervisor and then firing her. Stiemsma was not asked on rebuttal to deny such a conversation or to give any different version. The circumstances, including the com- ments at the bargaining table on November 8, preceding the hallway conversation between Barker and Stiemsma, compel me to conclude that Casper was not present when Barker informed Stiemsma of the conflict of interest she would have to resolve if the food service supervisor position were offered her. And, although I do so with deep suspicion that Casper's example may be a concocted story, I shall treat the testimony of Casper and Barker as an admission against interest and conclude that such a conversation occurred at another occasion in November or December when Stiemsma was again removed from the bargaining table setting and subjected to personal pres- sures by Barker and Casper.13 certificate she would have to be terminated when inspectors came and it is admitted that neither the state nor the Federal regulations require such a result. Indeed, Respondent's own experience is to the contrary. 13 The record refers to at least one other occasion, when wages were 668 CONTINENTAL MANOR NURSING HOME Stiemsma further testified that, in the hallway conversa- tion with Barker on November 8, Barker stated he had heard a rumor to the effect that employees were going to strike sometime over the holidays and that employees thought it humorous the Company would have to bring nursing personnel from Madison. Barker informed Stiems- ma he wanted employees to know that if they went on strike they would be fired. Price testified that at the negotiating meetings there had been a lot of talk about a possible strike, and at one point either Casper or Barker said employees could be fired for striking. Price placed the time as being at either the November or the December meeting, but could not recall the context of the remark.' 4 Without specific reference to this testimony or to the November 8, 1975, conversation with Stiemsma, Barker gave a general denial that he ever used a phrase such as "one could be fired if they went out on strike," to any employee in any conversation. I credit Stiemsma's testimo- ny,15 but make no finding with respect to the testimony of Price because of its vagueness as to the date and context. At the end of the bargaining session at Beaver Dam on February 19, as the participants were leaving the meeting area, an exchange occurred between Casper and Union Representative Beatty which Price and Stiemsma wit- nessed. The two employees had ascended a few steps of the stairway and turned to wait for Beatty who was following with Casper. According to Price, as the latter group reached the bottom of the steps, Casper turned to Beatty and, while shaking his fist in Beatty's face, declared that if Beatty continued with these charges' 6 he was asking for trouble. Stiemsma's testimony presented the variation that Casper stated Beatty "would be sorry"; "would be in trouble"; and "there will be trouble." It was her recollec- tion that Beatty replied he "was not worried, he thrived on this," smiled, and walked away. Casper denied that he shakes his fist in anyone's face or that he did so to Beatty. He testified that after every negotiating session there is conversation with "kidding and joshing." " Regarding the particular conversation, Casper stated: I think . . . this came up toward the end of the negotiating session . . . I think maybe probably what Mr. Beatty said was well, you know, maybe we can move along, maybe we can get something. lie's a great bargainer as you can well imagine. And maybe we'll drop these charges. Maybe these negotiations can move along, and we can kind of get what we're looking for. . . I said, as I have read these charges, they're hardly worth even talking about. This, of course, upset him a little bit. being discussed, on which Stiemsma was taken into the hallway by Barker to discuss the financial support of the home by Stiemsma's grandfather, at which time a loud exchange of words between them was heard in the negotiating room, and Casper dramatically emphasized that it was just such occurrences which held up bargaining, although it was Respondent's officials who initiated such hallway encounters with Stiemsma. 14 With respect to the word "fired." Price demonstrated her comprehen- sion of its meaning when she testified that she regarded the word "replaced" to mean "indefinitely" and "if you're not called back I suppose you lose yourjob." However, she did not regard this as the same as being "fired." 15 Price recalled that while employee negotiators were returning to Randolph from the November 8 bargaining session, Stiemsma related to them what had occurred while she and Barker engaged in the private discussion outside the negotiating room. Her testimony of the content of When asked directly whether he told Beatty that there would be trouble if he did not drop the charges, Casper responded: Wouldn't that be a rather assinine statement for me to make? I did not tell him he'd be in trouble, in answer to your question. The evasive and speculative character of Casper's testimo- ny against the straightforward and credible testimony of Stiemsma and Price convinces me that the employees' version is to be accepted as accurate. It further appears that Respondent enrolled two kitchen employees, Marwitz and a newly hired second cook, in the food service supervisor classes at the local technical school in January, and that Regnerus, who reported to work in mid-November 1975, left Respondent's employ so that from that time until the two enrollees completed the 9- month course with intervening summer school closing, Respondent again was without a certificate holder on its dietary staff. It is the contention of the General Counsel that Respondent denied Stiemsma a promotion to the position of food service supervisor because of her activities on behalf of the Union in violation of Section 8(a)(3) of the Act, and that the various incidents occurring at and outside the negotiating sessions reveal Respondent's animus and its real motive for denying Stiemsma the promotion as well as evidence establishing conduct violative of Section 8(aX i). Respondent asserts Stiemsma was not given the supervi- sory position because she did not meet the qualifying requirements and another applicant not only possessed such certificate of qualification but had highly rated experience with Respondent and was recommended for the position by the departing supervisor. There is no disputing that Barker was fully aware of Stiemsma's interest in the supervisory opening, and told her she would be given consideration. I have found that this occurred right after Labor Day shortly after Barker learned of Wynveen's impending departure. It is clear that Stiemsma failed at any time to make available to Barker for consideration her earlier relevant and possibly qualifying experience. Whether or not Barker told her that her old employment application would be used, ordinary diligence would place the responsibility upon the applicant to supply all relevant information to support her interest. Nor did she display individual initiative by investigating and enrolling for the evening course even though it was advertised by the local technical school to begin at a most propitious time relevant to Respondent's needs. Instead she showed the ad Stiemsma's report is consistent with Stiemsma's testimony as to what was said by Barker. However, in determining what was actually said as distinguished from what Stiemsma may have told Price at the time, I rely upon Stiemsma's credibility, the consistency of her testimony, the probabili- ties arising out of the situation, and the harmony of her version with other actions, statements, and conduct of record. 6 The charges herein were filed on February 5. it Price made the observation that as a bargaining tactic Casper often created big emotional scenes in order to get the union committee sidetracked but that she did not so evaluate this scene. Without regard to Price's subjective evaluation, I view actions of the parties away from the bargaining table as a matter apart from the special tolerance accorded parties in the heat of bargaining. 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Barker with the inquiry of whether she ought to be taking the course. I do not consider Barker's response as an indication he regarded the certificate as unnecessary or that he had made any decision regarding Stiemsma's application for the position. On the other hand, this conversation did put Barker on notice that Stiemsma did not possess such a certificate. It makes no difference whether this occurred before or after Barker had offered the position to certificate holder Regnerus whose schooling it had previously financed as insurance against the day when the incumbent staff supervisor might leave. For in either case, Regnerus was obviously the most likely candidate for the position and, if she could not be available, Respondent faced a period of noncompliance with government regulations. Barker could well regard it as unseemly to encourage an employee to enroll in school at her own expense before he had evaluated her qualifications for a position which might not become available to her, particularly in light of Respondent's established precedent of sponsoring otherwise qualified employees in the course to obtain the appropriate certificate. Thus, I cannot find in Respondent's offer of the job to Regnerus or in the performance, by a dietary department employee, of duties related to the position pending Regnerus' resumption of active employment and assumption of the food service supervisory duties, evidence of discrimination against Stiemsma. At such point in time there is no evidence to indicate that Barker had not considered Stiemsma's application when he chose instead a more qualified individual for the position. The fact that Barker did not tell Stiemsma he planned to give Regnerus the job does not require a different conclusion. For as he explained, there was still the outside chance that Regnerus may not be able to return as planned and he would again have to consider the other applicants. Nor do I consider his temporary assignment of most of the duties of the unfilled dietary department position to the first cook as evidence that Stiemsma was not being given consideration. Stiemsma worked in the nursing department and had shown interest only in the food service supervisory position in the dietary department. Organizational efficien- cy would suggest that Marwitz assume the added duties which related so directly to her own work. On the other hand, Stiemsma's continued expressions of interest in the position stated at various negotiating meetings both before and after Regnerus' return and assumption of the food service supervisor's duties were rebuffed. Thus, it is clear that she was given no consideration for the opportunity to participate in the training program as a qualified backup, 18 I have found that Respondent did not tell Stiemsma that she needed a food service certificate and that if given the job without it, upon audit of the facility, she would have to be fired, for which she was also grateful. However, even if she were told this, it is clear that Respondent's officials not only had no knowledge of any such requirement, but had reason to and did believe this would not be so. Thus, if credited, such a statement could only constitute a pretext requiring a further search for the real reason for Respondent's actions with respect to Stiemsma's application for promotion. 19 The General Counsel argues that: Clearly, an employer cannot refuse to hire employees because of their having engaged in, or having been suspected of engaging in union activities. GTE Lenkurt, Incorporated, 204 NLRB 921, 978 (1973). Similarly, an employer cannot refuse to promote a rank and file or "insurance" as Respondent labeled it, against the time when Regnerus might leave Respondent's employ, which in fact occurred after a few months. The credited testimony is that Stiemsma was told she would not receive the position, not because Respondent had ignored her seniority but because of the conflict of interest between her activities on the union side of the bargaining table and the requirements of support for Respondent's negotiating position inherent in the food service supervisor job that disqualified her from consideration. Obviously, if this was the disqualifying factor in considering Stiemsma for the position it was likewise the disqualifying factor in later sending the new kitchen employee instead of her to obtain qualifying training and certification for the position. As I view the allegation of discrimination, although it is couched in terms of a discriminatory denial of a promotion and a continuing refusal to promote for discriminatory reasons, this allegation includes the denial of, and continu- ing refusal to accord to Stiemsma's application, consider- ation because of her union activities, whether or not she would eventually have been appointed on the basis of other considerations.' 8 Such an exclusion from consideration for unlawful discriminatory reasons is equally violative of Section 8(a)(3) and (1) of the Act. Although Respondent proclaims Stiemsma was told they could, but would not, promote her out of the bargaining unit to a supervisory position beyond the protection of the Act and then fire her, as is done by some in the industry with troublesome or problem union adherents, and that she was grateful for this realization, I do not evaluate this testimony as being advanced either to Stiemsma or in this proceeding as a reason for withholding consideration of her application for promotion. Rather, it is a clear threat to her job tenure with a statement of the method by which Respondent "could" deprive her of the Section 7 protection and carry out this threat. In the circumstances, the purpose of such a statement could only be to cause Stiemsma to withdraw from all protected activities (whether bargaining unit, bargaining committee, or pursuit of nondiscriminato- ry consideration for promotion) under threat of being removed from the Act's protection and discharged. I find this to be restraint and coercion which goes to the very heart of the protection accorded employees by the Act and a violation of Section 8(a)(1).19 Additionally, a threat to discharge employees for striking, delivered to an employee member of the bargaining committee with express indica- tion that this was something Respondent wanted employ- ees to know, constitutes restraint and coercion violative of Section 8(a)(1), and I find that Respondent violated that employee to a supervisory position because of that employee's having engaged in union activities. Ann Lee Sportswear, Inc., 220 NLRB 982 (1975). Nor can an employer rescind a granted promotion because of an employee's having engaged in union activities. White Sulphur Springs Company d/b/a Greenbrier Hotel, 216 NLRB 721 (1975). This type of violation is analogus to those where an employer either refuses to transfer employees because of their having engaged in union activities, or transfers employees because of their having engaged in union activities. See, for example, Packerland Packing Company, Inc., 203 NLRB 198 (1973). I find his legal presentation equally applicable to the posture in which I view this case. 670 CONTINENTAL MANOR NURSING HOME Section of the Act by Barker's hallway statement to Stiemsma to that effect. D. The Meetings and Polling as 8(a)(1) Violations Casper, whose home and business address is Sioux City, Iowa, about 450 miles from Randolph, and whose responsibilities cover some 37 or 38 similar facilities of CM Corporation, visited the Randolph nursing home on January 22 and 23, for the purpose of conducting a series of meetings and polling the unit employees there. He took with him two sheets of paper, one marked "WW" (for will work), and the other marked "WNW" (for will not work) and, assertedly, a written statement prepared for him by Respondent's attorney which, admittedly, he did not read verbatim. 20 Although Casper was in charge of negotiations for Respondent with the union bargaining committee, such negotiations were conducted in cities away from the Randolph location involved herein and most of the employees had never met Casper before. Groups of employees were summoned by Barker, and in a few instances by Satter, to attend meetings,2t the length of which varied from 5 to 40 minutes. At each meeting Barker introduced Casper as the official from CM Corporation and Casper proceeded to conduct the meeting. The first group met on Thursday, January 22, at or around 3 p.m. in the O.T. (occupational therapy) room. Present, in addition to company officials 22 and the five or six nursing assistants, were three women 23 who were strangers to the employees and who were not introduced to them or otherwise identified for them. Casper told the group that Barker had received a letter from the Union stating that the employees were going on strike on Monday, January 26. He advised employees emphatically, by pounding with his fist on the table,24 "that he would be damned if the place would ... stop running," and that he was concerned about patient care and could not run the home without employees. Casper had two sheets of paper in his hands. He held these up; told employees he wanted to know who would be on the job Monday; instructed them to sign one sheet or the other; and explained that one paper was to be signed by those who would work while the other was for the signatures of those employees who were going to strike. Casper advised them that if any employee did not sign either paper this 20 Although Casper asserted he read in part from this statement and otherwise "spoke to it." Barker gave his impression that Casper did not read it verbatim and admitted he had not made a close observation on this point. I credit the testimony that Casper did not read a statement and in some meetings had no visible documents before him other than the "WW' sheet. 21 Employees had no advance notice of any meeting. 22 Satter did not attend all meetings. 23 Barker testified that these were newly hired aides who first reported to the facility that day and that when they were hired they were made aware of the impending strike. Sarah Stein, an aide on the shift ending at 7:15 a.m., on January 23, testified that on her shift there were three new women, one in uniform and two in street attire, who spent time in and around the nurses' station. They did not actually take part in the care of patients. 24 It was my observation that Casper was a very demonstrative person, gesticulating and pounding with his hands for emphasis with nearly every positive statement he made. Thus, during his testimony his pounding of the witness chair arm was almost constant. Casper admitted that he probably pounded the table for emphasis at one point in the meetings. I credit the employees' testimony in this respect and find that Casper used a pugilistic mannerism in presenting his thoughts to employees. would mean that person was going on strike. Casper did not tell employees it would make no difference how they voted. Instead he informed employees that those in the last two categories would be replaced. Casper stated that he had to know who was striking because he had to have replacements there Monday morning.25 Other matters, referred to infra, were discussed at the meeting and several employees raised questions about the procedure being followed. One asked Casper why he did not wait until Friday when the employees' strike ballots would be counted. They questioned whether what Casper was doing was legal26 and why a union representative was not present. To the latter question, Casper retorted by asking them whether they were unable to make up their own mind. Casper then stated he would leave the employees alone to talk it over; he would be in Barker's office; and, when they decided what they were going to do they were to come to Barker's office and sign one of the sheets of paper. Casper then left the room followed by Barker, Satter, and the three unidentified women. After a short discussion and a decision to sign the sheet indicating that they would report to work Monday, the employees went to Barker's office where they were presented with a sheet of paper folded where they were to sign so that they could not see whether anything was written on the top. Each signed in the presence of Casper and Barker. Around 4:30 p.m. that same afternoon a group of employees was assembled in the employees' lounge at the direction of their supervisors where they gathered around a table. Casper, who was seated at the head of the table, announced that he had called the meeting because Barker had received the union notice that the employees were going to strike on Monday. He told them that due to the timing of the notice, the strike was illegal, and that since the employees had turned down the Company's contract proposals he had the right to come and speak to them and give the Company's position. Casper advised that the facility was there for two purposes: one was the care of patients, the other was to make money for the stockholders. He asserted that the home was going to run, with or without them. Casper told employees that a reason for the meeting, in addition to stating his views with respect to the negotiations, 27 was to find out who was planning to go on strike on Monday. He took a sheet of paper, laid it on the 25 My finding of what occurred in this and other meetings is based substantially upon the testimony of employees present which is, for the most part, corroborated by Casper and Barker. Although De Jager testified that Casper told them that if they signed to go on strike or did not sign either paper they would be out of a job, she later testified that he said they "would be replaced" which she declared was the same as being out of a job. I find that in this respect De Jager was giving the overlay of her interpretation of the projected effect of replacement on an economic striker rather than reporting a precise recollection of his exact words. 26 Casper told employees it was legal because he had offered them a contract. He added that he had been told the employees were not receiving the correct information concerning the contract negotiations, and displayed a notebook or folder which he said they could look through to learn what had been going on at the negotiations. 27 Casper told employees that the Company had taken abuse from the union bargaining committee at the bargaining table and that he felt the negotiators had not given employees the proper information. He stated that (Continued) 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD table, and told employees he wanted them to sign the paper indicating that they would be at work on Monday, January 26. He added that if they wished to do so they could sign a sheet indicating that they were going to strike, but did not produce such a sheet. Casper added that if they failed to sign either paper, this would be considered an indication that such individual would engage in the walkout and that those who signed the strike sheet as well as those who failed to sign either paper would be replaced on Monday. Casper stated he would prefer to have the facility run by its current employees, but did not indicate that the replacements would be temporary. Casper did not offer to leave the room, and the paper which he had produced for employees to sign was passed around the table. Employees signed in the presence of Casper, Barker, and the other employees present. At or about 7:05 a.m. on Friday, January 23, as Sarah Stein and Stiemsma were filling in patients' charts, preliminary to their departure at the end of their shift at 7:15, Barker approached them and asked the two nurses aides to come to his office for a talk. Stiemsma told Barker they first had to complete the reports, reminding him of the importance of this work to patient care. She told Barker they would come by his office when this work was completed, if there was time. Barker stepped out of the nurses' station for a few words with Casper, then both entered the area. Casper asked Stein and Stiemsma whether they were coming to work on Monday, January 26. Stein asked Casper whether she had given him any reason to believe she would not be at work. Casper stated that since they had a strike vote and he received a letter from the Union that there would be a strike, he had to know. Stiemsma said she did not know yet and suggested that Casper should not be talking with the employees but should have contacted their union representatives Casper told the two that nursing personnel could not strike and that because he had not received a 10-day notice, "If you go on strike, it will be illegal." Casper informed the two aides that the facility would continue to operate with or without them. He said they could sign a paper indicating whether or not they would strike,29 and those signing that they would strike would be replaced. Stein stated she felt Casper did not have a right to ask employees to sign because that was asking how they voted in the strike referendum. Stiemsma stated, "I'm not signing any paper." Casper said that they did not have to sign, but if they did not sign he would sign for them and those not signing would be replaced. After a further exchange of words with Stiemsma,30 Casper stated that if they did not sign, it would mean they were striking and they would be replaced. Stein asked what would happen if since employees had turned down the Company's contract proposals he had the right to come and speak with them and give the Company's position. 2s When Stiemsma challenged Casper's conduct in coming to the home and contacting employees, and questioned why he had not gone through the Union, Casper asked, "who said" he had not contacted the Union. Stiemsma informed Casper she knew he had not because she had called and talked to the union representative about Casper's meetings. 29 Casper had paper rolled in his hand but did not present any to Stein and Stiemsma for their signatures. 0o Stiemsma told Casper he could not do this because he could not know which way she would vote and Casper had no authority to sign her name as she would not allow him to put her name on anything: that she had a right to ascertain whether what he had told them was correct. she showed up on Monday. Casper told her, "We'll worry about that then." At 7:15 Stiemsma announced she was going home. After her departure Casper told Stein, now that the dominating force was not there to influence how she answered, maybe she would feel free to tell him how she really felt. 31 Stein replied that she had told him how she felt; that what she signed would be what she meant; and that she was not signing. Casper said if she did not sign, it would mean she was going on strike; he had to get replacements to run the facility. Around 9 a.m. on Friday, January 23, another group of four or five employees were summoned to a meeting in the O.T. room. Casper opened the meeting by informing employees he had been notified by the Union that it planned to strike on Monday. He said the proposed strike was illegal and that the employees should not be striking at a place like this facility where patients needed around-the- clock care. Casper stated he wanted to know who would be at work on Monday so that he could have replacements there for those who were going on strike. Casper explained to employees that in an economic strike the striking employees can be permanently replaced. He stated that he had people ready to replace them Monday morning and that this "would mean people losing their jobs because he had replacements for each one . . . that would not be there." Nurses' assistant Gretchen Van Lou Blish asked Casper whether he really had replacements for them. Casper replied, "Yes. They would be from the local area .a 20-mile radius." 32 Casper told employees he wanted them to sign a paper indicating that they were going to work on Monday, and if an employee did not sign, this would show that she planned to strike. He added that the information he was seeking was absolutely necessary for the welfare of the patients and that each employee should decide for herself and should not allow anyone to influence her. Casper produced the "will work" sheet which he placed on the table, face down, so that the side which was for the signature of those present was blank. He told employees that if they did not sign this would mean they intended to strike. Casper did not offer to leave the room and the paper which was passed from one employee to another was signed in the presence of all attending the meeting. With few exceptions, Casper did not address his testimony to the statements made at specific meetings. Rather, he presented a general recollection of what he said at all the meetings. Thus, he testified that at each meeting he emphasized that: The prime purpose, the sole purpose of my being there, to determine whether or not these people were going to sI Casper denied that he referred to Stiemsma as a dominating force, but admitted he said to Stein after Stiemsma left that "in privacy she might feel more like talking just between the three of us." 32 This factual finding is based on the credited testimony of Kati Boorsma. Shirley Smitz who attended this same meeting testified that, to her recollection, Casper had said only that he "could get replacements," rather than "would" or "had." Her recollection in other respects was vague. I note that Casper impliedly corroborates, at least in part, the testimony of Boorsma in his testimony that he "presumed" he did say replacements would come "from within a 20-mile radius." 672 CONTINENTAL MANOR NURSING HOME be there. Because our business is taking care of the geriatric residents. We have a moral and legal obliga- tion. And as a representative of the Company, it was my responsibility to see that it was done, and I told them at each meeting that-of my sole purpose for being there and that we would appreciate some indication from them as to whether or not they intended to be there. No harm would come from [sic] them. No benefits would come to them one way or the other. But we had to know because of patient care being the purpose for which we were in business. Along with making a bottom line black mark. Similarly, Barker, who attended each meeting, testified that: Basically he explained his presence there and the purpose of the meeting, which was to ascertain certain information relative to the strike notice that we had received. And indicated to them that we had a nursing center to run. We had to deliver patient care. We had a moral and ethical obligation to do so. And asked their support by indicating with their signatures on two slips of paper whether they, in fact, would work or whether, in fact, they would not work on the day of the strike. Casper admitted that he told employees a strike would be "illegal" or "unlawful" because of the Union's untimely notice-not as his own understanding but on information and advice from legal counsel that the law required a 10- day notice, and that under the circumstances employees who went out on strike "could" be replaced. 3 3 He testified, in this respect, that he told employees there was a legal and moral obligation to go out and get replacements, "come Monday"; that he would seek replacements; and that he presumes he said that replacements would come from within "a 20-mile radius." Casper, corroborated by Barker, denied that he said replacements would be there Monday. Casper testified that he told employees he would never allow the facility to be shut down and that he could not run the home without employees. Casper admitted that an employee asked what would happen if he hired replace- ments and "we come to work" Monday, and that he replied, "We will face that problem when we get to it." Casper also testified that he asked employees whether they were coming to work on Monday, stating to them, "It was our sole intent at this time to find out whether or not 33 Casper denied he said striking employees "would" be replaced and Respondent's witnesses corroborate this, whereas those testifying for the General Counsel insist he said they "would" be replaced. Although I find the difference insignificant in the context of this case, in view of Barker's admission of inattentiveness at these meetings, and Casper's apparent impreciseness in articulating his ideas and recollection, together with his admitted abandonment of his reading the attorney's statement for employees in favor of his own presentation. I find that Casper, for the most part, used the word "would" rather than "could" in these meetings. 34 Many variations appear in Casper's testimony. At one point Casper testified he was asked for the reason why he was seeking this information from them and that he told employees it was because of the untimely stnke notice. On the other hand, Barker was unable to give Respondent's reason for the meetings and the polling. He stated that he did not regard the signed paper as assurance one way or the other as to whether an employee would strike, observing that individual employees could change their minds Sunday night. Barker added that his instructions were merely to get the employees together and to introduce Casper who conducted the meetings. If people were going to be there. And we had to . . . do a head count .... We need to know who is going to work Monday and who will not be there.34 Casper denied that he said striking employees would be "fired" or that he "had obtained replacements for them." Although I find no substantial evidence to establish that Casper said in so many words striking employees would be fired if they did not sign the "will work" sheet, I am convinced, by the unexplained presence of the three strange women at the first meeting; by Casper's allusion to his right to hire permanent replacements for economic strikers; by his repeated statements that those who signed, the strike sheet as well as those who signed neither paper would thereby indicate they would strike and be replaced; by his assertion that a strike by them would be unlawful because of the allegedly untimely strike notice; by his testimony that he "presumed" he said replacements would come from within a 20-mile radius, along with the credited testimony giving the specific context of this comment; and by his admission that he stated he would "when we get to it," face the problem of what to do if both the replacements he hired and the employees came to work on Monday, that Casper not only attempted to lead employees to believe he already had replacements for their jobs but, in fact, so stated in his last group meeting, and that he used this as a means of threatening and coercing employees into signing a paper indicating that they would not strike. With respect to the actual polling, Casper testified that he had two sheets of paper available for employees to sign --one for those who would work and one for those who would strike on Monday. Casper does not dispute the testimony of employees concerning the precedure followed for the polling at each meeting. Although he asserts that he told them they had a "free choice," and that no harm or benefit would inure from such choice, I credit employees who testified that he gave them no assurances whatsoever. Telling employees that he wanted them to make a decision free from any influence by union officials or activists is a matter quite different from assuring to employees freedom from Respondent's coercion or retaliation.3 5 Both Casper and Barker specified in their testimony that Casper did not tell employees they would have to sign one of the papers or they would be replaced, and, indeed, this is not the emphasis of the employees' testimony. I credit the testimony of employees that Casper told them the employ- ees who refused to sign either paper would thereby signify Casper had clearly stated to employees his purpose for the meetings, it would seem that an alert official like Barker who attended all meetings would have caught this if, in fact, such purpose was a legitimate one that Respondent would be willing to reveal. A purpose beyond that for which the attorney's statement for employees was designed would account for Casper's abandonment of that statement in favor of his own comments. 35 I note that Barker stated he did not think Casper used the words, "it's your choice." In this respect particular note is taken of Casper's colloquy with employees at the first mentioned meeting when he inquired of employees whether they were unable to make up their own minds without the union representatives; his comments to Stein with respect to freedom from the dominating influence of Stiemsma after the latter's departure; and his statement at the last meeting that each employee had to decide for herself and "should not let no one influence them," while he remained in the room as each signed the "will work" sheet which was the only one he gave them advising them that if they did not sign, this would mean they intended to strike, and they would be replaced. 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they would strike on Monday, and they would be replaced in the same fashion as those who signed the strike sheet. Stein, Stiemsma, and Price did not sign the "will work" sheet for Casper. None of them were scheduled to report to work before I I p.m. on Monday. Nevertheless, each received a personal call from Satter who, although admittedly she had never previously followed such a procedure, testified that on instructions from Barker she called them to inquire whether they would report to work that day as scheduled, and that she did so in order to make sure that the facility was covered because of a blizzard on Sunday night. Stein received the first call around 10 a.m. To Satter's inquiry, Stein replied she did not know because her car was stuck. Stein testified there had been no blizzard on Sunday night but only an addition to the current snow accumulation; that the snow plow had come through between 8 and 9 o'clock that morning; that the roads were clear; that the sun was shining; and that her car was stuck due to an accident by her husband that morning which she referred to in speaking with Satter. Around 10:30 a.m., Satter called Stiemsma asking whether she would be at work that night due to the weather conditions. Stiemsma replied, "The sun is shining." When Satter called Price, Satter said she wanted to make sure Price would be at work because Stein's car was snowed in. Each testified that Satter had never before called them to verify that they would be at work when they were scheduled to work. I find that these calls were poorly disguised individual inquiries as to the strike intentions of employees who had not signed the "will work" sheet for Casper. Among other matters which transpired at the several meetings, Mary Copeland testified that at the 4:30 p.m. meeting, Casper stated, since employees had turned down the Company's contract proposals, he had the right to come and speak to them and give them the Company's position. During the meeting several employees spoke advising Casper that, if the Company had a written policy employees could refer to, perhaps they would not be confronted with the current situation. Employees pointed out that they did not know where they stood with respect to comparative pay or when they would receive raises, and that they had learned from various employees hired at different times that they had received differing starting pay. The employees told Casper they had also learned that employees hired with no experience were receiving more pay than experienced employees. Casper responded by informing the group that at that time he had a revised company policy sitting on his desk but he was not able to 36 Cathleen Tietz testified that at the January 22, 3 p.m. meeting, Casper stated it was legal for him to speak with them because he had offered them a contract and that, with respect to a raise in pay which employees stated they needed. Casper said employees could go and see Barker. De Jager, who attended the same meeting, recalled that Casper told employees "We should be able to live off of what we are making." Casper admitted that he probably discussed the contract negotiations, and that he did say he felt the proper information regarding negotiations was not given to employees. 37 The reproduced envelope (Resp. Exh. I) fails to contain any postage or reveal any postal cancellation markings. Although in identifying this envelope as the one in which the stnke notice was received, Barker testified that in the upper right-hand corner of the envelope there "certainly appears to be" a meter stamp containing the date January 15. and the General Counsel in his brief seems to accept this as a fact. In my examination of the present it due to the fact that the employees were represented by the Union, or until such time as they were no longer represented by a union. Casper admitted there was some mention made that the corporation was in the process of developing new policies, but asserted that this information was never given to employees by formal announcement. He could not recall whether this occurred at one of these employee meetings, but he was sure it was not mentioned at a bargaining session. Casper's best recollection was that he made this statement in response to a question as to what would happen if employees were not represented by the Union and that his reply was that they would then have personnel policies as before. Casper added that he could have mentioned this matter two or three times. In view of the fact that Casper was such an infrequent visitor at the home, and the absence of any evidence that he ever conducted a meeting with employees other than the ones involved herein, I credit the testimony of the employees that Casper's remarks about new employee policies occurred at these meetings.3 6 The allegations in the complaint are that at these meetings Respondent coercively interrogated its employees regarding their intentions to strike; threatened employees with discharge should they indicate that they were going to strike; and informed employees that benefits were being withheld due to the Union. Initially, Respondent took the position that because the Union had given a notice of intention to strike, which notice was not received timely 37 with respect to the 10-day requirement of Section 8(g) of the Act, Respondent "felt compelled to inform the employees of the untimeliness, and its consequences." 38 Thus, Respondent told employees that such a strike would be "illegal" or "unlawful." At the hearing the impression was also given that Respondent viewed the untimeliness of the strike notice under Section 8(g) as depriving employees of the Section 7 protection of the Act. However, except to the extent quoted above, this argument is not amplified in Respondent's brief. It is without merit, and clearly contrary to the intent of Congress in passing the health care amendments, as reflected in committee reports, and in discussions of the proposed legislation. In legislating the health care amendments, the stated purpose was to extend to employees of nonprofit hospitals "the same rights and protection enjoyed by . . . most all other employees,"3 9 and to assure that employees of such "institutions be accorded the same type of treatment under the law as other employees in our society."4 0 Thus, in establishing the requirement for a 10-day strike notice in photostatic copy supplied for the record, I fail to perceive any such marking. It is incumbent upon a party withdrawing an original and substituting a copy of an exhibit to guarantee an accurate and adequate reproduction of such exhibit. Accordingly, I find, on the basis of the evidence of record, that the date of posting the letter is not established, and therefore that the self- serving testimony as to the date of receipt is not supported. 38 Respondent's brief. 39 S. Rept. 93-766, 93d Cong., 2d sess. 6 (April 2, 1974) on S. 3203, Committee of Labor and Public Welfare, p. 4; H. R. Rept. 93-1051, 93d Cong. (May 20, 1974) on H.R. 13678, Committee on Education and Labor, p. 4. Also see remarks of Senator Alan Cranston of California, Managing S. 3203 on May 2, 1974 at 119 Cong. Rec. S. 6932. 4o Id S. at p. 5, H.R. at p. 6. 674 CONTINENTAL MANOR NURSING HOME Section 8(g) and in amending Section 8(d) to provide for loss of employee status for "any employee who engages in a strike within . . . the appropriate period specified in subsection (g)," it was the express intent of Congress "that the notice not be utilized to deprive employees of their statutory rights. M41 Such loss of employee rights under the law would occur only if the individual employee participat- ed in a strike which was found by the Board to be in violation of Section 8(g).42 As stated by Senator Williams, speaking in support of the conference report: 43 I reject any interpretation that this Committee intended to create a new unfair labor practice whenever mention is made of an intent to withdraw services in violation of Section 8(g). Clearly, the Committee meant precisely what it said and no more, for if it had intended to make such a threat a violation of Section 8(g), it would have said so precisely as the Congress amended the Act in 1949 to make a threat to violate Section 8(b)(4) itself a violation of the Act .... My overriding point is that in carefully tailoring legislation, Congress decided to treat the health care industry uniquely in certain respects. It decided to go so far and no more .... Thus, Congress established as an unfair labor practice a strike instituted by a labor organization against a health care institution without first giving a 10-day notice to enable the health care employer to develop plans for assuring continued patient care, but clearly indicated that a finding of an unlawful strike without such notice should be confined by cautioning that extenuating circumstances must be considered so that any finding of a violation and consequent loss of employee status to participants should be tempered by the rule of reason.44 Accordingly, I conclude that even if the Union's strike notice was untimely received by Respondent this would have no impact upon the protection accorded employees under " Ibid. S. Rept. at pp. 4-5 and House Rept. at p. 6 amplified the intent as follows: Moreover, it is the sense of the Committee that during the ten-day notice period the employer should remain free to take whatever action is necessary to maintain health care, but not to use the ten-day penod to undermine the bargaining relationship that would otherwise exist. For example, the employer would not be free to bring in large numbers of supervisory help. nurses, staff and other personnel from other facilities for replacement purposes. It would clearly be free to receive supplies, but it would not be free to take extraordinary steps.... While not necessarily a violation of the Act, violations of these principles would serve to release the labor organization from its obligation not to engage in economic action during the course of the ten-day notice penod. 42 120 Cong. Rec. E4850. July 18. 1974. extended remarks of Representa- tive John M. Ashbrook of Ohio. Committee on Education and Labor: IT ]he status of stnkers as employees would also be determined by the decision of the Board. Section 8(d) of the Act. which has been amended by this bill, clearly states employees will lose their status as such if they participate in a strike outside of the notice period. Should the labor organization be in violation of Section 8(g). the employees [strikers] would then, according to statute, lose their status as employees. Consequently, the reasonableness of the Board in applying the intent of the Committee to the facts is of major importance. Section 7 of the Act before they actually participated in such proposed action, and Respondent was not, thereby, privileged to engage in any conduct which it could not lawfully pursue under a timely 10-day notice. Relying on Industrial Towel 45 for the proposition that questioning of employees about their strike intentions is not per se unlawful, Respondent also advances the argument that because it is a health care facility with a strike notice in hand it has a reasonable basis for believing that a strike is imminent, as required by Scheaffer Pen,4 6 and, therefore, a legitimate need to ascertain its prospective manpower needs. In these circumstances, Respondent argues, under Mosher Steel, 47 that so long as its questioning of employees concerning their strike intentions is unaccom- panied by threats, promises, or other coercive conduct, its inquiries are lawful. Respondent asserts that it took great pains to assure employees in these respects and that "when asked to state these preferences, they were permitted to do so secretly . . . [although] the Board in Mosher, supra, doesn't require any such secrecy." 48 Acknowledging the legal precedent cited by Respondent, although not necessarily the interpretation or application, the General Counsel concedes that "an employer may be privileged to question its employees as to whether they intend to exercise their Section 7 right to strike if, but only if, a strike appears imminent, and provided the employer has a legitimate reason for seeking this information." He does not contend that "expressed congressional intent and concern underlying Section 8(g) in assuring the contin- uance of uninterrupted patient care cannot provide a legitimate basis for an employer's inquiry concerning the strike intentions of health care employees."4 9 Rather, the General Counsel argues that, because of the inherent coercive impact of employer inquiry concerning Section 7 activities, the employer is under an obligation to follow well established safeguards in order to minimize the 'a Harrison A. Williams, Jr., of New Jersey, Chairman of the Labor and Public Welfare Committee, 120 Cong. Rec. S. 12104-12105, July 10, 1974 on Rept. S. 93-988, Conference Report dated July 8. 1974. 44 Remarks of Representative Ashbrook. on July 11, 1974, Cong. Rec. E4850: The Board in considering extenuating circumstances, is expected to act in a reasonable manner consistent with the Committee's intent as stated in this report. Examples of extenuating circumstances identified are: . . . when the employer has committed . . . what the Board and courts have termed flagrant unfair labor practices. . .where the notice was mailed in a timely fashion and the union was not responsible for the delay, or where under such circumstances, the employer has been provided with more than 12 hours' actual notice .... 45 Industrial Towel & Uniform Service Company, 172 NLRB 2254 (1968). 46 W. A. Sheaffer Pen Company, Division of Textron, Inc., 199 NLRB 242 (1972), enfd 496 F.2d 180 (C.A. 8., 1973). '7 Mosher Steel Company, 220 NLRB 336(1975). 41 Resp.'s brief. ' G. C. brief. 675 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercive character of such inquiry, whether it takes the form of interrogation 50 or of polling.51 I accept the proposition that a strike notice pursuant to Section 8(g) of the Act (whether timely or not) establishes a reasonable basis for concluding that a strike is imminent. Further, in view of the express purpose of Congress in treating health care institutions as unique, warranting the special provisions of Section 8(g), I conclude that receipt of such a notice warrants extending the umbrella of permissi- ble inquiry to permit a health care employer to ascertain from employees, during the 10-day period, the probable number of replacements that will be required in order to maintain continuing care for patients in such institutions during the strike. On the other hand, Congress was concerned that the 10-day notice period should not be utilized by the employer "to undermine the bargaining relationship that would otherwise exist." It certainly could not be said to have intended that the 10-day notice period could be used to erode other Section 7 rights of employees. Parity of treatment with other types of employees with regard to the Act's protections requires that the same safeguards against coercion applicable to other circum- stances involving permissible inquiry 52 should be extended to this type of situation. Accordingly, I conclude that those minimal standards heretofore established to lessen the inherent coercive effect of permissible interrogation and polling are applicable here.53 On the basis of the credited testimony, I find that, rather than endeavoring to minimize the coercive effect of its effort to ascertain its prospective striker replacement needs, Respondent instead set out to make the most of this "foot 50 Johnnie's Poultry Co. and John Bishop Poultry Co., Successor, 146 NLRB 770, 775 (1964). In preparation of a litigation defense, . . the employer must communicate to the employee the purpose of the questioning, assure him that no repnsal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. '1 Struksnes Construction Co., Inc.. 165 NLRB 1062 (1967), under remand from the circuit court with an indication of a need for the Board to exercise its expertise and develop and outline a minimal standard to govern permissible ascertainment of employees' desire respecting bargaining matters, the Board announced the following cinteria: Absent unusual circumstances, the polling of employees by an employer will be violative of Section 8(a)(I) of the Act unless the following safeguards are observed: (I) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees. (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. sZ Fns. 50 and 5 , supra. 53 In so finding, I reject Respondent's insinuation that Mosher Steel. fn. 47, supra, represents an erosion of these criteria. The secret-ballot safeguard had particular reference to taking a poll or referendum of employees' choice with respect to representation, whereas the Mosher case involved systematic individual interrogation as to individual strike participation intention. Moreover, the Mosher reference to "other coercive conduct" would encompass the coercive impact of the method or manner of interrogation, including, in appropriate situations, the absence of secrecy. Frequently these criteria are applied without specific reference to a given factor enumerated in the guideline cases, particularly where there is present specific instances of promises of benefit, threats of reprisal, or identified coercive conduct or in the door" intrusion into its employees' protected area of activity. Thus, employees were assembled and subjected to the authority of a high-powered and highly placed official who was a stranger to them. This personage proceeded to inform employees that if they did not sign a sheet of paper indicating that they would work on Monday, the date of the strike, they would be replaced. As stated, the threat was to replace employees if they signed a document indicating they would participate in the strike or refused to sign any document which would be interpreted by Respondent as an intent to strike. Clearly, Respondent has no replacement rights related to an expression of prospective intent to act, but only to replace those who are actually withholding their services by engaging in a strike. Such a threat is unlawful. However, even accepting Respondent's statement as having been intended arid understood to mean that replacements were being hired to take the place of any employees who concertedly withdrew and withheld their services on Monday, I find little distinction between telling employees you have hired or are hiring their replacements and "bringing in large numbers of . . . staff and other personnel . . . for replacement purposes," a step which Congress identified as a misuse of the 10-day notice period.54 A threat to do what cannot be done lawfully is equally coercive. I find that Respondent thereby violated Section 8(a)(1) of the Act. With respect to Satter's veiled method of ascertaining individually the strike participation intentions of employ- ees not previously polled by Respondent, I find that she did not offend the statute even though the purpose of the comment which are themselves unlawful or which aggravate rather than minimize the inherent coercive effect of the poll or interrogation. E.g, B. C. Hawk Chevrolet, Inc., 226 NLRB 527, 529 (1976) (no legitimate purpose in the circumstances, no assurances against reprisal, the ballot was not secret, and the respondent otherwise created a "coercive atmosphere"); Television Wisconsin, Inc., 224 NLRB 722, 767 (1976) (inquiry concerning alternative intentions of strike or resign from union); Surface Industries, Inc., 224 NLRB 155, 158 (1976) (threat if picket line were observed and promise of benefits if would cross picket line); Distinctive Graphic Arts Corp., 219 NLRB 640, 645 (1975) (polling without established safeguards-missing elements not enumerated); Mr F'S Beef and Bourbon, 212 NLRB 462 (1974) ("acts of omission and commision"-questions outside legitimate purpose and lack of proper assurances); Tamper Inc., 207 NLRB 907 (1973) (not voluntary and no advance safeguards); Vega Industries, Inc., 207 NLRB 14 (1973) (questioning for purpose not involving collective-bargaining rights but growing out of such activities (i.e., disparagement or slander) which did not exceed established standard for legitimate interrogation and was not otherwise coercive). In such circumstances, enumeration and a determina- tion of the presence or absence of the other criteria set forth in the standards would be superfluous. Moreover, such criteria are not rigid rules but rather serve as guidelines of conduct and judgment. It would seem unnecessary to spell out here the coercive effect of open polling or group interrogation by an employer regarding intent to participate in concerted activity, whether employees are required to answer vocally, to place their names on an open petition, or to sign such petition in the presence of one another and/or of the employer. The bandwagon effect as a coercive device is a well-recognized phenomenon. Further, an employee's refusal to answer such an inquiry always carries the risk that the employer by reason of such defiance will be less willing to overlook some shortcoming of the reluctant employee. See The Dayton Tire & Rubber Company, a Division of The Firestone Tire and Rubber Company, 206 NLRB 614(1973). 54 See fn. 41, supra. It seems superfluous to point out that the method of polling adopted by Respondent was itself coercive. lacking in both free choice and secrecy; assurances against reprisal were not given; the atmosphere was not free of employer hostility; and discussions exceeded the necessities of the legitimate area of inquiry. 676 CONTINENTAL MANOR NURSING HOME inquiry was not stated, or more accurately, was misstated. She confined her inquiry to the necessity of ascertaining whether regularly established nursing schedules would be filled that night. Her very approach minimized any coercive impact otherwise inherent therein and had no need for special assurances or precautions. Casper's remarks to the effect that a new company policy was sitting on his desk but was being withheld due to the presence of the Union, even in the face of employees' questions and complaints, were far beyond the necessities of the situation. His testimony that it was a matter he mentioned two or three times and one which he had not mentioned at union bargaining sessions suggests a thinly veiled promise of benefit if employees would abandon union representation. It is not established whether Respon- dent in fact had a new or revised employee policy which it had implemented at its numerous other facilities but had withheld at this institution because employees here were represented by a union, or that such "policy" contained any employee benefit. His statement in this respect, as well as his directive that employees who want a raise should see Barker, is pregnant with promise of benefit by innuendo, clearly tending to interfere with employees' Section 7 rights, and a violation of Section 8(a)(1).55 Finally, although I view Casper's statements to the various assemblages of employees that their union repre- sentatives were not reporting correct information on the contract negotiations, and his reference to bargaining committee member Stiemsma as a dominating influence while speaking with Stein, as criticism indicative of Respondent's attitude toward the Union and its negotia- tors, I do not find therein disparagement of a type violative of the Act.56 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Commercial Management, Inc. d/b/a Continental Manor Nursing Home, is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 150, Service and Hospital Employees Interna- tional Union, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to sponsor Helena Stiemsma for qualifying training and by excluding her from consider- ation for promotion because of her union support and s5 See the Board and court discussions of the withholding of benefits contained in Otis Hospital, 220 NLRB 402 (1976), enfd. 545 F.2d 252 (C.A. 1,. 1976). Also see KDEN Broadcasting Company, a wholly owned subsidiary of North American Broadcasting Company, 225 N LR B 25 (1976). "S Cf. Hoke Janitorial Service et al., 213 NLRB 783, 784 (1974); Television Wisconsin, Inc., 224 NLRB 722. 764 (1976),; Paramount Trends Inc., 220 NLRB 141(1976). activities, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 4. By polling and interrogating employees as to wheth- er they intend to engage in a prospective strike on which notice had been served by their representative, without observing applicable safeguards to minimize the coercion inherent in such polling and interrogation, Respondent has interfered with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act. 5. By threatening retaliation and reprisal through hiring, effective at the beginning of the designated strike date, replacements for all employees who indicated they would strike as well as those who refused to disclose their intentions; by threatening to discharge the employees if they engage in a strike; by, in the presence of employees, threatening their union representative with physical harm for maintaining unfair labor practice charges filed against Respondent; by telling Stiemsma that a troublesome or problem union adherent could be promoted out of the bargaining unit and then fired; and by implying to employees that benefits, being withheld from them because of the presence of the Union, may be forthcoming if employees were not represented, Respondent interfered with, restrained and coerced its employees in violation of Section 8(a)(l) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent excluded Helena Stiemsma from educational training and consideration for promotion because of her union activities, I shall recom- mend that Respondent be ordered to offer Stiemsma the same training opportunity, with the financial support related thereto, which was provided for the other employ- ees and, without discrimination, consider completion of this training together with all her prior relevant experience and seniority against qualifications of the other applicants for the position of food service supervisor as of the date Regnerus terminated her employment in that position, and that Respondent make Stiemsma whole for any loss of earnings she may have suffered by reason of Respondent's unlawful discrimination, with interest thereon at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 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: ORDER 57 The Respondent, Commercial Management, Inc. d/b/a Continental Manor Nursing Home, Randolph, Wisconsin, its officers, agents, successors, and assigns, shall: 5' 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. 677 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 150, Service and Hospital Employees International Union, AFL-CIO, or any other labor organization of its employees, by failing and refusing to sponsor interested employees for qualifying training and considering them for promotion because of their union support or activities, or otherwise discriminating in regard to any term or condition of employment of its employees. (b) Coercively interrogating or polling employees con- cerning their strike intentions, without appropriate safe- guards; threatening reprisals, by replacement and/or discharge, for engaging in protected concerted activities; threatening physical harm for seeking vindication of statutory rights; and promising benefits if employees were to become unrepresented. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Helena Stiemsma an opportunity to obtain the special qualifying training for food service supervisor which she would have received but for the discrimination against her, and consider this together with all her other qualifying experience for the position of food service supervisor, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount she would have earned, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records relevant and necessary to a determination of the amount of backpay, if any, due inder the terms of this Order. (c) Post at its Randolph, Wisconsin, facility copies of the attached notice marked "Appendix."5 8 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. 58 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice: WE WILL NOT discriminate against employees by refusing to grant them opportunities for training and promotion because of their activities on behalf of any union. WE WILL NOT coercively interrogate or poll our employees as to their strike intentions; or threaten our employees with replacement if they indicate they will strike or refuse to indicate whether they will strike; or threaten to discharge employees if they strike; or threaten their union representative with physical harm for maintaining an unfair labor practice charge; or warn employees that troublesome or problem union adherents could be promoted out of the bargaining unit and then fired; or imply that benefits are being withheld because of the Union's representative status and that such benefits will be given if employees abandon their union representation. WE WILL NOT, in any other manner, interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act, or to refrain from any and all such activities. WE WILL offer Helena Stiemsma an opportunity to receive training paid for by us to qualify for a food service supervisor certificate, and consider this training and all her other experience and seniority for the position of food service supervisor, and make her whole for any loss of pay she may have suffered because of our discrimination against her. All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. COMMERCIAL MANAGEMENT, INC. D/B/A CONTINENTAL MANOR NURSING HOME 678