Ascot Nursing Centre

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dan Lipman, Norman Ruttenberg, and Abe Goldstein, a Partnership, d/b/a Ascot Nursing Centre and Local 222, United Nursing Home and Hospital Employees' Federation and National Union of Hospital and Health Care Employees /RWDSU, AFL-CIO and Betty Zollicoffer and National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. Cases 30-CA-2590, 30- CA-2611, and 30-CA-2634 February 21, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 10, 1974, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, both Respondent and the General Counsel filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order as modified herein. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) of the Act by discharging seven employees who were engaged in protected concerted activities in connection with a walkout by Respondent's third-shift employees. We affirm this finding. We disagree, however, with the Administrative Law Judge's failure to find violations of Section 8(a)(1) with respect to the termination of Cora Reed's employment and the interrogation of Father Stehlik, and a violation of Section 8(a)(3) and (1) in the discharge of Patricia Bounds. Cora Reed's Termination Cora Reed was a third-shift nurses aide who had not worked the night of the walkout. According to her testimony, which was credited by the Adminis- trative Law Judge, the nursing director called her the following morning, and told her that "the third shift girls walked out" and "I want you to know that they were fired because they walked out." She then inquired whether Reed was coming in to work that night. Reed "told her no, because I was part of the third shift." Upon further inquiry as to her reasons, Reed referred to the cut in compensable hours and extra work-the two matters which had precipitated 216 NLRB No. 123 the dispute and walkout the previous night. Upon being asked again whether she was coming in to work, she "said no. You can put on my paper I quit, or either I'm fired." According to Respondent's records, Reed "terminated herself effective immedi- ately" and her termination notice is checked in both "quit" and "discharged" squares. The notice also indicated she was not eligible for rehire. Later in the day she received a telegram from Respondent stating her resignation had been accepted and that she should "not appear on these premises." The Admin- istrative Law Judge concluded that Reed was not discharged, but voluntarily resigned because she did not like the working conditions. A more realistic appraisal of the Reed termination appears to be that she had the same grievances as the third-shift nurses, made common cause with them by joining in their walkout, and was willing to suffer the consequences of termination by refusing to return to work. It must be remembered that the nursing director began her telephone conversation with Reed by advising her that the third-shift aides had walked out and were fired as a result. Reed's response was that she would not come in to work because she "was part of the third shift." Clearly, then, she was joining the third-shift aides in the walkout with the under- standing that this meant she would be discharged. Her further explanation, upon being pressed, was to recite the grievances that occasioned the walkout thus further identifying herself with the third-shift aides. In the circumstances, her statement that her records could reflect that "I quit, or either I'm fired" was nothing more than an expression of willingness to accept the consequence of discharge, along with the other third-shift aides, for joining the walkout. The nursing director's introductory statement made clear to Reed that her refusal to work would result in her discharge. Thus, she was confronted with the choice of being discharged or breaking ranks with the protected concerted activity of the third-shift aides. Her determination not to break ranks, of which she advised the nursing director, meant that she was fired. Her statement accepting this result did not convert her discharge into a resignation. This interpretation is fortified by the notations in Re- spondent's records that she was discharged as well as that she quit, and that she was not eligible for rehire, and the further direction that she not appear on Respondent's premises. The circumstances warrant and indeed compel the conclusion that she was discharged in violation of Section 8(a)(1) and should be treated in the same manner as the other third-shift aides with whom she made common cause. Even if her conduct were to be construed as a resignation, the further indication in her termination notice that she was discharged and that she was not eligible for ASCOT NURSING CENTRE rehire, together with the telegraphic instruction that she "not appear on these premises," in themselves constitute discriminatory action in violation of Section 8(a)(1) for having engaged in protected concerted activity. Father Stehlik's Interrogation Although the complaint was amended to allege a violation of Section 8(a)(1) by interrogating an employee concerning union sympathies, the Admin- istrative Law Judge appears to discuss the question- ing of Father Stehlik by supervisory employees not as a separate violation but only as evidence of union animus in connection with the discharge of employee Patricia Bounds. He found Father Stehlik's testimo- ny insufficient to provide proof of animus as to Bounds and also, possibly as a disposition of the claimed 8(a)(1) violation, "that Respondent did not coercively interrogate Fr. Stehlik." 1 A day or two after the walkout of the third-shift aides Father Stehlik was interviewed as a possible replacement nurses aide by the administrator, the director of nurses, and the assistant director. He was hired a few days later. He had been told about the walkout, which the assistant director of nurses attributed to "a Union coming into the place." In an initial interview with the administrator, he was asked what he thought of unions. After giving an equivocal response, the administrator told Father Stehlik that he didn't like unions. In an interview which followed, the director and assistant director of nurses also asked him his feelings about unions. Against the background of the recent work stoppage which the supervisory employees attributed to the Union and the discharge only a day or so earlier of a number of employees for protected, concerted activity and of a union steward because of a belief that she influenced the walkout, the interro- gation of a prospective employee by Respondent's three top supervisors concerning his attitude toward unions and the expression of dislike for unions by the administrator can only be regarded as coercive, and therefore violative of Section 8(a)(1).2 The Discharge of Patricia Bounds Patricia Bounds, an aide on the second shift, was discharged on February 17, purportedly for having the previous day threatened Administrator Burns' son, who was also an employee. The Administrative I The Administrative Law Judge made his finding on the basis of accepting Father Stehlik's testimony without consideration of the differing version of Respondent's supervisory employees. In general, he did not credit the testimony of the supervisory employees which conflicted with that of the employees who were antagonists in the dispute. Father Stehlik was not involved in the dispute and was hired as a replacement after the walkout. In the circumstances, we deem it appropriate to credit his testimony 681 Law Judge found that Bounds did not threaten Burns' son in any way, noted that Burns made no effort to investigate the incident, did not accept Burns' claim that he believed a threat had been made, rejected Respondent's claimed reason for the discharge as pretextual, and stated that he did not know why Respondent discharged Bounds. He held, nevertheless, that the record did not support a finding of an 8(a)(3) violation because the General Counsel had not established affirmatively that she had been discharged for union or other protected activities. Where no real attempt is made to investigate the alleged ground for a discharge and the reason given for the discharge is false, there is basis for an inference that there was an unlawful motive for the discharge which the employer desired to conceal, at least where the surrounding circumstances tend to reinforce that inference. Shattuck Denn Mining Corporation v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9, 1966); Reidbord Bros. Co., 189 NLRB 158, 170 (1971). The surrounding circumstances in the present case provide substantial support for the inference that Bounds was discharged for her union activity. Animus toward protected concerted action and unions is evidenced by Respondent's unlawful discharge of the third-shift aides, the unlawful discharge of Union Steward Betty Zollicoffer, the unlawful interrogation of a prospective employee concerning his attitude toward unions, and Adminis- trator Burns' statement that he did not like unions. Patricia Bounds was closely identified with the union endeavors. She questioned Burns on January 10 as to his reasons for firing Union Steward Betty Zollicoffer and with respect to other employee grievances. She was also very active in the apparently successful election campaign for the merger of Local 222 with the National Union of Hospital and Health Care Employees. In this connection she solicited Kevin Burns, son of the administrator, to support the merger. The merger election was held on February 12, and was supported by Bounds because she believed it would result in more effective collective bargaining. In light of the background of unfair labor practices by Respondent and Bounds' prominent role in union affairs, the pretextual reason for her discharge warrants the inference, which we make, that she was fired in violation of Section 8(a)(3).3 2 Ohio Hoist Manufacturing Co, 188 NLRB 902 (1971). 3 For the reasons fully set forth in the Administrative Law Judge's Decision, Member Kennedy agrees with the Administrative Law Judge that the General Counsel has not established that Patricia Bounds was discharged in violation of Sec. 8(a)(3) of the Act. Accordingly, Member Kennedy would adopt the Administrative Law Judge's recommended dismissal of the complaint allegations as to Patricia Bounds. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amended Conclusions of Law Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. By discharging Hosea Simmons , Billie Thom- as, Ella Jordan, Gladys Peeler, Joan Holifield, Mary Perkins, Cora Reed, and Betty Zollicoffer, Respond- ent has violated Section 8(a)(1) of the Act; and by subsequently discharging Patricia Bounds , Respond- ent has violated Section 8(a)(3) and (1) of the Act." Add the following, renumbering the present Con- clusion of Law 4 as 5: "4. By interrogating Father Edward Stehlik con- cerning his attitude toward unions, Respondent has violated Section 8(a)(1) of the Act." WE WILL NOT discharge employees in reprisal for union or other protected concerted activities including the presentation of grievances or lawfully striking in support thereof. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. DAN LIPMAN, NORMAN RUTTENBERG AND ABE GOLDSTEIN, A PARTNERSHIP, D/B/A ASCOT NURSING CENTRE DECISION 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 as modified below and hereby orders that Respondent, Dan Lipman, Norman Ruttenberg and Abe Gold- stein, a Partnership, d/b/a Ascot Nursing Centre, Milwaukee, Wisconsin, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add as paragraph 1(b) the following, reletter- ing the present paragraph (b) as (c): "(b) Interrogating applicants or employees con- cerning their attitudes toward unions." 2. Add to the names listed in paragraph 2(a) the names of Cora Reed and Patricia Bounds. 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL reinstate the following named em- ployees to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and make them whole for earnings lost since their discharges: Hosea Simmons Joan Holifield Billie Thomas Mary, Perkins Ella Jordan Betty Zollicoffer Gladys Peeler Cora Reed Patricia Bounds WE WILL NOT interrogate applicants or employ- ees concerning their attitudes toward unions. STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Hearing in this matter was held on April 30 - May 2, 1974, upon a complaint issued by the General Counsel on March 29, 1974, and Respondent's amended answer. Upon the entire record in this case, including my observation of the demeanor of witnesses and upon consideration of briefs and supplemental memoranda, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent partnership operates a nursing care facility in Milwaukee, Wisconsin, and I find, as all parties agree, that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 222, United Nursing Home and Hospital Employ- ees' Federation (herein called Local 222) and National Union of Hospital and Health Care Employees/RWDSU, AFL-CIO (herein called Hospital Employees), are labor organizations within Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES All dates herein are in 1974 unless otherwise indicated. The complaint, as amended at the hearing, alleges that Respondent discharged nine nurses aides (eight on January 10 and one on February 17) and also constructively discharged one of these nine , "all because of their membership in and activities on behalf of Local 222 and/or Hospital Employees and/or because of their protected concerted activities." The principal questions in most of these cases are whether the aides quit or were discharged for walking out concertedly and, if the latter, whether the walkout was protected concerted activity in the circumstances hereinafter discussed. Respondent purchased and assumed effective control of the subject nursing facility on January 1, 1974. It renamed the facility Ascot Nursing Centre and also took over the personnel of its predecessor. Respondent's management ASCOT NURSING CENTRE team includes Administrator Donald Burns, Director of Nursing Sandra Chmielewski, and Assistant Director of Nurses Marsha Schmidt. Ascot is a three-shift operation with some 70 employees in all departments, including registered and practical nurses and nurses aides; at relevant times it had approxi- mately 120 patients, at least half being bed patients. Local 222, United Nursing Home and Hospital Employ- ees' Federation, was certified by the Board on October 30, 1973, upon an election in an appropriate bargaining unit which included nurses aides then employed by Respond- ent's predecessor. Local 222 did not adopt a contract with Respondent's predecessor. Respondent recognized Local 222 in December 1973 and Administrator Burns thereafter had several conversations with Local 222 Representative Kenneth Islo and Local 222 Steward Betty Zollicoffer, during which they discussed matters relating to wages, hours and working conditions. Among the matters dis- cussed was a proposal by Burns to shorten the work shifts from 8-1/2 hours to 8 hours, including an unpaid lunch period of 1/2 hour, with an accompanying increase in the hourly wage rate . This increase would raise the hourly rate to compensate the employees for the cut in hours and would in effect also raise their weekly gross pay by 8 or 9 cents an hour. Islo accepted Burns' proposal, subject to the aides' approval. On January 2 and 3, Burns held afternoon meetings open to aides on all shifts, but which - because of the timing of the meetings - were attended by first-and second-shift employees and not by third-shift personnel. Burns ex- plained, and aides of the first two shifts approved, the proposed changes. Although the third-shift aides had requested that Burns meet with them, no such meeting was scheduled and Burns never did discuss the changes or other related matters with them before the events under consideration here. The mentioned changes were implemented retroactively to January 1; and when third-shift nurses aides reported for work shortly before their 11 p.m. starting time on January 9 they noticed for the first time that their time cards credited them with only 7.5 hours of work instead of 8 hours which they had actually worked. While the record establishes that Respondent did not intend to "short- change" the employees, the record does show that the employees believed this to be the case. This resulted from the mentioned lack of communication respecting the wage hour changes as well as confusion in processing employee records, a situation which extended even beyond the January 10 walkout herein. In any event, the third-shift aides were much upset when they saw their time cards on January 9. Further upsetting the aides when they reported for work on January 9 (Wednesday) was the fact, in addition to other matters, that third-shift aides Hosea Simmons and Billie Thomas found warning slips stating they would be terminated if they refused to sterilize bedpans in an autoclaving device. The previous night Simmons and Thomas had been instructed to sterilize a large number of stacked bedpans through use of an autoclaver. They refused on the grounds, which I credit, that they did not know how to use that equipment and had never been 683 instructed in its use, an excuse which their immediate supervisor, Nurse Rogers, fully accepted at the time. Although Nursing Director Chmielewski testified that one or some of the third-shift aides had been taught to operate this machine, such function had not previously been performed on the shift, and Chmielewski was unable to say definitely that either Simmons, Thomas, or even Nurse Rogers had ever been taught how to operate the machine. The third-shift aides upon reporting for work on January thus were upset and concerned about being "cheated on their paychecks," according to Schmidt's own testimony, and by the warnings given Simmons and Thomas; the aides discussed the situation and decided to request an immediate meeting with Bums concerning these and other employment problems. They meanwhile did not go about their regular duties, and they registered their complaints with nurses Calvin and Rogers (whom the parties stipulat- ed were statutory supervisors). Calvin notified Assistant Director Schmidt by telephone that the aides were not working and were upset about certain grievances and wanted to meet with Burns "right away." Burns was at his own residence at the time, a block or two away. Bums and Schmidt discussed the matter and decided it would be a bad managerial decision to grant the aides' request for an immediate meeting, and Bums and Schmidt decided instead to hold such meeting at 6 a.m. (Thursday). The aides were advised accordingly. Meanwhile, the second shift ended and the second-shift aides left the Centre, and there were further phone calls and discussions. In the words of third-shift aide Joan Holifield, "All in all it was total chaos. Everybody was very upset." Although Re- spondent claims that the aides had agreed to wait until 6 a.m. to meet with Burns and even though Bums might have been informed to such effect by his subordinate supervi- sors, the record does not establish any understanding between the aides and management that the aides would remain and perform their normal duties and wait until 6 a.m. to meet with Bums. Rebuffed in their repeated efforts for 1-1/2 hours to have Bums meet with them "immediately" to discuss their grievances, the third-shift aides walked out at 12:30 a.m. (January 10). No aide said a word 'at the time about quitting permanently or to indicate that their walkout was anything other than a protest over grievances and Respondent's refusal to meet with them at once. Upon being advised of the walkout, Bums and his son (also employed by Respondent) and Chmielewski and Schmidt shortly went to the Centre to replace the third-shift aides. Joan Holifield, one of the third-shift aides who punched in on January 9, had not been scheduled to work that night, although she had worked on Wednesday night as a rule, and regularly had Tuesday nights off, as she did on January 8. She was not aware of this change in schedule until after she checked in on January 9 and the commotion developed. After one of the supervisors noticed she was unscheduled, Holifield offered to leave, but waited at the request of the other aides so that she might give them a ride home, which she did after the walkout. She apparently clocked out with the other aides at 12: 30 a.m. Holifield then called Betty Zollicoffer, a second-shift aide and a union steward, telling her what happened. At 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approximately 1:30 a.m. on January 10 Zollicoffer phoned the Centre, and told Bums that the second-shift aides also might walk out unless he would meet with them to discuss various described grievances . This was the only conversa- tion Bums had with any of the aides that entire evening. Thursday morning (January 10), Chmielewski called Joan Holifield, the third-shift aide who had been present at the walkout but had not been scheduled to work. Chmielewski at the time was unaware that Holifield had punched in and left with the other aides the night before, and asked if Holifield would report to work that evening. Holifield said this was doubtful, because her daughter was hospitalized with a difficult pregnancy and she wanted to be with her daughter at the hospital. But she would call if it became possible for her to work, Holifield promised. Neither Holifield nor Chmielewski gave any indication in this conversation that Holifield had quit or been otherwise terminated from her job . That evening, in fact, Holifield had a friend notify Respondent of her inability to work that night because of her daughter's condition. Chmielewski also received a call that morning from Hosea Simmons, whom Chmielewski had tried to call shortly after the walkout and who was returning that call. Chmielewski inquired why Simmons had walked out and told Simmons that she was terminated. Simmons respond- ed, "You didn't terminate me, I terminated myself," and the call ended. (Simmons credibly testified that she did not quit.) By this time the decision had clearly been made to terminate those aides who had walked out. About 11 a.m. that morning Bums instructed that termination notices be prepared, and the following telegram was accordingly sent to third-shift aides Hosea Simmons, Billie Thomas, Ella Jordan, Gladys Peeler, Joan Holifield, and Mary Perkins. Your employment . . . has been terminated. Final pay has been mailed to your home . Do not appear on these premises. A similar telegram was also sent to, but apparently not received by, second-shift aide Betty Zollicoffer. Zollicoffer thus reported for work a few hours later on her regular shift on January 10, at which time Burns orally discharged her. Second-shift employees witnessed the discharge of Union Steward Zollicoffer and were upset by such action. They discussed walking out in protest of their steward's discharge,'but Zollicoffer told them not to do so and they did not. Later that day, second-shift aide Pat Bounds and another aide pressed Bums on his reason for discharging Zollicoffer, and he replied that it was for influencing the third-shift walkout. Respondent's subsequent discharge of Bounds is discussed hereinafter. A. Discharge or Quit? Respondent claims that the third-shift aides quit work individually and not concertedly and that its discharge of the aides "was simply confirming the fact that they had all quit by walking off the job" (Reap. br.). Such claim strains credulity in the circumstances of this case 1, and in my opinion warrants no further discussion, except to reject it. I accordingly find that Respondent discharged the third- shift aides because of their concerted walkout . While it is not entirely clear that Holifield joined the walkout or that she merely waited to drive other employees home after a supervisor had told her she was not scheduled to work that night,- her case is essentially no different from the discharge of the other third-shift aides and Burns testified that Respondent treated her as if she had walked out. Respondent's own records thus show that Respondent discharged her for "verbally expressing complaints about pay, job responsibilities, etc. Walked off the job . . . 12:30 a.m." - substantially the same purported reasons con- tained in Respondent's records for discharging the other aides. B. Was the Walkout Protected Concerted Activity? Respondent's principal defense is that , even assuming Respondent discharged the third -shift aides for a concerted walkout, the discharges are not violative of the Act because the attendant circumstances were purportedly such as to remove the walkout from the protection of the Act. Respondent relies, in this connection, on the fact that only two LPN's were alone on duty to take care of 120 patients when the aides walked out, that the aides left the facility at night without reasonable notice to enable Respondent to care for the patients, that the aides - before leaving that night - "acted in a loud, argumentative fashion which resulted in chaos and confusion," and that two supervisors resigned because of the aides ' actions and a third became ill. All of this s, contends Respondent, "clearly endangered the health and safety of the patients." The General Counsel urges in reply that the record is bereft - and it is - of any showing that ill effects were in fact visited upon any patients because of the walkout. The General Counsel further asserts that supervisory personnel were available and did come to the Centre to tend the patients' needs when the aides left, and that the principal, if not only,. actual detriment was inconvenience caused to management rather than to patients ; and the General Counsel, in effect, also asserts that Respondent itself could have averted the walkout by granting the aides' request for an immediate meeting rather than put off such meeting until 6 a.m. It is relevant, in this connection, that Respondent had not explained the wage-hour changes to the third-shift employees despite their earlier requests for a discussion with Burns and that such changes were among their principal concerns in seeking an immediate meeting that night. It is noted, moreover, that the employees in question are low paid , unsophisticated individuals who were upset because they believed they were being "c- heated" and all they were seeking was a prompt meeting with their employer to discuss grievances . It should be mentioned in fairness to Respondent , that Respondent had recently taken over the facility, and was at the time undergoing licensure inspection by the State, all at a time Indeed, in its opening statement, for example, Respondent listed 2 Respondent also claims, but without trustworthy record support, that various purported reasons for discharging these employees , and its own unidentified aides made threats to personal safety and property. internal records establish the fact of discharge. ASCOT NURSING CENTRE 685 when it was attempting to establish its own management procedures in a newly acquired facility. Concerted activity, including a work stoppage, is protected under the Act where employees pursue genuine grievances whether or not the grievances be "soundly based." The Masonic and Eastern Star Home of the District of Columbia, 206 NLRB 789 (1973). And the Board applies or has applied the same standard of conduct to nursing homes as it does to other employers engaged in other businesses (ibid). "We are aware that the resort to collective action by the ["nurses aides, orderlies and housekeeping"] employees . . . exerts unusual pressure because of the need for the employer's customers or clients to have uninterrupt- ed service. However, protection of the Act will not be denied merely because someone not directly affected by the controversy might consider the work stoppage to be ill- timed, unreasonable or showing poor judgment" or because concerted activities in nursing homes "might `disturb' the patients" (ibid). In recent amendments to the Act, effective August 25, 1974, -Public Law 93-360 generally makes it an unfair labor practice for a union to strike a "health care institution" without giving 10 days notice and also provides that employees lose their employee status for engaging in a strike absent such notice. "It is in the public interest to insure the continuity of health care to the community and the care and well being of patients by providing for a statutory advance notice of any anticipated strike or picketing" and the "10-day notice [in amended Section 8(g) of the Act] is intended to give health care institutions sufficient advance notice of a strike . . . to permit them to make arrangement for the continuity of patient care." S. Rep. No. 93-766, 93d Cong., 2d Sess. 4 (1974). Referring to this new Section 8(g), Respondent urges that such amendment merely articulates preexisting standards applicable 'to health care institutions and that the walkout is unprotected in the present case because of the employ- ees' peremptory conduct in that connection. The General Counsel, on the other hand, contends that Section 8(g) involves new proscriptions heretofore not part of our jurisprudence and that, as new statutory requirements, they may not be applied retroactively. The Masonic and Eastern Star Home case supports the General Counsel's views respecting preexisting standards. The new amendments, therefore, do modify existing law in the above-mentioned respects and thus may not be given retroactive effect. Viewing the fact and circumstances of this case within the principles of Masonic and Eastern Star Home, supra, and cases cited therein, I conclude that the aides, by presenting common grievances and walking out concertedly, were engaged in protected concerted activity within Section 7 of the Act and that Respondent violated Section 8(axl) by discharging the aides3 for such activity. Cf. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 14- 16 (1962); N.L.R.B. v. Pioneer Plastics Corp., 379 F.2d. 301, 307 (C.A. 1, 1967); N.LRB. v. Trumbull Asphalt Company of Delaware, 327 F.2d, 841, 843 (C.A. 8, 1964); Electromec Design and Development Co., Inc. v. N.LRB., 409 F.2d. 631, 634 (C.A. 9, 1969); Salt River Valley Water Users' Association v. N.LR.B., 206 F.2d 235, 329 (C.A. 9, 1953). Respondent claims that it discharged Zollicoffer for the same reasons associated with its action in discharging the third-shift aides. Bums testified that he believed Zollicoffer was "aligned with and part of [the walkout]" and he told Respondent bookkeeper Sandy Caravella that he was terminating Zollicoffer for influencing the third-shift walkout and for threatening a walkout by the second shift concerning grievances . Zollicoffer, the shop steward, did not participate in or encourage the walkout in any respect, nor is her aforementioned call to Burns a • threat of unlawful concerted action. The call itself is within the ambit of protected activities. As Respondent's discharge of the third-shift aides was unlawful, its discharge of Zollicoffer was at least equally so. Respondent, by discharging union steward Zollicoffer, violated Section 8(a)(1) of the Act. C. Cora Reed's Separation About 10 a.m. Thursday morning (January 10), Nursing Director Chmielewski called Cora Reed, a third-shift aide who had not reported for work on Wednesday. Reed credibly testified as follows concerning this conversation: "She [Chmielewski] asked me if I heard what happened the night before. And, I asked her what happened. And, she said, apparently, you don't know. And, I asked her again, what happened. She say, the third shift girls walked out last night. And, I says, why. And, she says, I don't quite know. But, I want you to know that they were fired because they walked out. And then, she asked me if I was coming in that night. And I told her no, because I was part of the third shift. And, then, she asked me why. I says, because I had worked some eight hour days and only got seven and a half hours for them. Plus, they had a lot of extra work there for us to do. And, then, she asked me, if my hours were straightened out, would I come in. And, I told her, no. And, she says, why. I said, well, I wasn't making nothing as it was. And, since they had cut it down to seven and a half hours, I wasn't making enough to come over there for. And, then, she asked me, was I coming. I said no. You can put on my paper I quit, or either I'm fired. And, she says, okay, and she hung up. Respondent's records state that Reed "terminated herself effective immediately," and her termination notice is checked in both "quit" and "discharged" squares, and the notice also indicates that she was not eligible for rehire. Later in the day of her conversation with Chmielewski, Reed received a telegram from Respondent stating that her resignation had been accepted and that she should "not appear on these premises." The General Counsel contends that Reed's separation was violative of the Act, and he urges various theories in such connection. The General Counsel thus claims alternatively, inter alia, that Reed was actually discharged for making common cause with the discharged aides who had walked out and constructively discharged as well. As I see her case, Reed advised Respondent that she was no longer an employee of Respondent and that she didn't care 3 Simmons, Thomas, Jordan, Peeler, Holil'ield, and Perkins. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether Respondent called it a quit or a discharge. She advised Respondent, in effect, that she was severing her employment because she didn't like the working conditions and not because Respondent induced her to quit by making her employment intolerable for union or other protected reasons. This is neither a discharge nor a constructive discharge, and I shall recommend dismissing the complaint as to Reed. D. Discharge of Patricia Bounds Patricia Bounds, an aide on the second shift, was discharged on February 17, purportedly for threatening another employee the previous day. The supposedly threatened employee was Kevin Bums, the 17-year-old son of Administrator Bums. The General Counsel alleges that the real reason for Bound's discharge was her prominence in challenging Respondent concerning Zollicoffer's dis- charge, in pressing other grievances, and her active role in a campaign to have Local 222 merge with Hospital Employees. A merger election was held on February 12 and the merger resolution apparently prevailed. Bounds and another employee, as indicated above, did question a reluctant Bums on January 10 concerning the reasons for Zollicoffer's discharge and in discussing various employee grievances with Bums that same day. And the record also establishes that Bounds did take an active role in the union-merger campaign. Burns denied any knowledge of Bounds' activity in that campaign and the record does not permit the inference that he had such knowledge. Burns testified that he discharged Bounds on the basis of a report to him by his son, Kevin, that Bounds had threatened Kevin on February 16, and he sent the discharge notice without even discussing the matter with Bounds. Bounds was a completely credible witness and she denied making the threat. Bounds and another credible corroborating witness explained the innocent context of the allegedly threatening remark, and Respondent called neither Kevin nor any other witness to establish Kevin's alleged hearsay report to his father, and I find that Bounds did not threaten Kevin in any respect. As indicated above, Bums discharged Bounds without even discussing the matter with Bounds or any other individual present at the incident and he testified that he relied entirely on his son's version of the matter. Burns did not investigate the matter even after Bounds denied to him that she had threatened his son. Considering the circumstances of the discharge, I have difficulty accepting Bum's claim that he himself believed Bounds to have made the threat as purportedly reported to him by Kevin. However, that does not answer the question here. One may speculate, for example, that familial considerations may have entered into the situation whether or not one accepts Bum's testimony that Kevin did make the report to his father. To find an unlawful discharge of Bounds it is not enough that I reject Respondent's claimed reason as pretextual . For the General Counsel still must make a preponderant showing that Respondent discharged Bounds for impermissible reasons. The difficulty in this matter is an absence of a showing of animus toward Bounds for union or other protected reasons. Respondent did discharge the strikers, but, so far as the record establishes, that was in reprisal for strike activities and not for conventional union reasons. Bounds did press Bums concerning the Zollicoffer discharge and related matters, but that was more than a month earlier and there is no independent showing in the record of Respondent animosity toward Bounds in such connection. Bounds was active in the union merger movement, and even assuming, arguendo only, that Bums knew of such activity, the record is barren - or practically so - of any showing that Burns was opposed to the merger. The only evidentiary item adduced in this connection is the testimony of Fr. Edward Stehlik who applied for an aides job a day or two after the January 10 walkout and who was hired a few days later. Fr. Stehlik testified in relevant part as follows concerning a job interview with Bums: A. Well, I had to go through an explanation of what Old Catholic was. And he asked me why a priest wanted to get into nursing. And, I told him of my experience that I had worked as an orderly at another nursing home. And, he also had mentioned the fact that they were rehiring employees for the third shift, because of a walkout that had taken place. And that there were Union negotiations going on right now, or at that time. And, I asked him if it was like an open or closed shop. And, he said, well, you know, you didn't have to join the Union, at that time, if you didn't want to. And then, he asked me what I thought of Unions. And, I said that I was a professional person all my life, and it didn't make any difference one way or another. Unions could be good or bad, you know. Depending on the situation. And then, he said he didn't like Unions. That was the gist of of the conversation. And then, I went and saw the director of nurses and the assistant director. Q. And, where did you see them? A. In their office up on the first floor. When it was on first floor. Q. And, what, if anything, was said? A. They discussed also that they were rehiring employees for the third shift. And, that they were - would strongly consider me for the job of orderly. And let me think now. They mentioned the walkout. And, I asked, just briefly, what the walkout was about. And, I believe Marsha Schmidt said it had to do with a Union coming into the place. And then, they asked me my feelings about the Union. And, I said relatively the same thing that I had said to Mr. Burns. Even accepting Fr. Stehlik's testimony without consider- ation of Respondent witnesses' differing version of the interview, I find it insufficient, either separately or in combination with all other evidentiary matters urged by the General Counsel, to supply the needed proof of animus as to Bounds to establish that Respondent discharged Bounds for union or other protected considerations. I do not know why Respondent discharged Bounds, but I do conclude that the record does not satisfy the statutory requirements of proof to sustain a violation respecting her discharge. Considering the entire tenor and context of the ASCOT NURSING CENTRE 687 Fr. Stehlik testimony, I also find that Respondent did not coercively interrogate Fr. Stehlik. CONCLUSIONS OF LAW 1. Respondent partnership, doing business as Ascot Nursing Centre, is an employer within Section 2(6) and (7) of the Act. 2. Local 222 and Hospital Employees are labor organizations within Section 2(5) of the Act. 3. By discharging Hosea Simmons, Billie Thomas, Ella Jordan, Gladys Peeler, Joan Holifield, Mary Perkins, and Betty Zollicoffer, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies and purposes of the Act. Among other things, the recommended Order shall require Respondent to reinstate and make whole the below-named employees in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings, and the entire record and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER4 Respondent, Dan Lipman, Norman Ruttenberg and Abe Goldstein, a partnership, d/b/a Ascot Nursing Centre, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for engaging in union or other protected concerted activities, including but not limited to presenting a 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. grievances and engaging in a strike or work stoppage in support of grievances. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer to the following named employees immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay that they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled the "Remedy": Hosea Simmons Joan Holifield Billie Thomas Mary Perkins Ella Jordan Betty Zollicoffer Gladys Peeler (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at Respondent's Ascot Nursing Centre, Milwau- kee, Wisconsin, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily placed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered over by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Insofar as the complaint alleges matters not found herein to have violated the Act, the complaint is hereby dismissed. S In the event that 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 Appeals Enforcing an Order of the National Relations Board "