Gold Leaf Convalescent Home

GOLD LEAF CONVALESCENT HOME American Care Centers, Inc., d/b/a Gold Leaf Conva- lescent Home and Public Service and Industrial Employees Union, Local No. 1239, affiliated with the Laborers' International Union of North Ameri- ca, AFL-CIO. Case 19-CA-7228 September 18, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On March 11, 1975, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. We find merit in the General Counsel's exceptions to the Administrative Law Judge's finding that Re- spondent did not violate Section 8(a)(3) in discharg- ing Debra Halverson allegedly for poor job perfor- mance. The Administrative Law Judge concluded that the General Counsel had failed to meet his bur- den of proving that Respondent discharged Halver- son because of her union activities in the absence of evidence that Lynn Campbell, manager of opera- tions, knew of Halverson's views or activities prior to the discharge. We disagree. Respondent operates a nursing home in the State of Washington. Halverson was hired as activities di- rector in May 1973 to stimulate and/or to motivate the patients to participate in the various activities. In the performance of these duties she moved con- stantly about the home contacting patients and staff personnel throughout. Her job also required the preparation and maintenance of certain records. Halverson was very active in the early stages of the union organizing drive. Thus, she signed a union au- thorization card, attended union meetings, and freely disclosed her support of the Union to other employ- ees including telling them whom to see about signing authorization cards and inviting a number of em- ployees to attend a union meeting at her home on May 22, 1974, the day she was discharged. Although Campbell conferred with Halverson 421 about her job duties on two occasions after his arriv- al on May 20, 1974, he did not convey to her any inkling that he was dissatisfied with her job perfor- mance, and during the entire period of her employ- ment, she was never reprimanded, disciplined, or criticized over the quality or quantity of her work. On May 21, 1974, however, at an employee meeting, Campbell, in addition to expressing his antiunion views, indicated that some employees were trouble- makers and that they were going to be fired. Respon- dent had knowledge before Halverson's discharge that the sole issue to be resolved at a representation hearing was whether or not she should be included in the unit. The Administrative Law Judge found that Respondent was hostile to the plans of employees to have a union. He also found that Respondent's ad- ministrator, John Bragg, on July 17, 1974, stated that two union organizers were no longer employed by the Respondent and would never return. The only two employees who had been fired at that time were Halverson and Green, also an active union support- er. We find, in these circumstances, ample evidence that Respondent knew or believed that Halverson was actively engaged in union activity. In view of the above, and especially the fact that Halverson was never warned about her alleged fail- ure to do her work properly, we reject the Adminis- trative Law Judge's conclusion that Halverson was not unlawfully discharged. Consequently, in view of Respondent's threats, and other coercive conduct which was 'directed towards its employees for sup- porting the Union, we are persuaded that Respondent's asserted reliance on Halverson's inade- quate job performance as the reason for discharging her was a pretext and that the discharge of Halver- son, a staunch union activist, was a discriminatory act against Halverson for supporting the Union and, thus, violated Section 8(a)(3) and (1) of the Act. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 3(b) from the Adminis- trative Law Judge's Decision and substitute therefor the following: "(b) Section 8(a)(1) and (3) of the Act by discharg- ing Frances Stanley and Debra Halverson because they engaged in union activities." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, American 220 NLRB No. 44 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Care Centers, Inc., d/b/a Gold Leaf Convalescent Home, Ellensburg, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said Order as modified below: 1. Delete paragraph 2(a) and substitute the follow- ing therefor: "(a) Offer Frances Stanley and Debra Halverson immediate and full reinstatement to their former jobs, or substantially equivalent jobs if their former jobs no longer exist, without prejudice to their senior- ity and other rights and privileges, and make them whole in the manner set forth in the section of the Decision entitled `The Remedy.' " 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT prohibit union solicitation among our employees during their nonworking time on our premises. WE WILL NOT threaten to cease making quar- terly wage reviews and granting wage increases to those of our employees who support or sup- ported Public Service and Industrial Employees' Union, Local No. 1239, affiliated with the La- borers' International Union of North America, AFL-CIO, or any other labor organization. WE WILL NOT threaten to refuse to negotiate with the above Union (or any other labor orga- nization, in the event such labor organization is designated as the exclusive collective-bargaining representative of an appropriate unit of our em- ployees). WE WILL NOT prepare, circulate, and solicit sig- natures to petitions to decertify the above- named Union or any other labor organization duly designated as set out above. WE WILL NOT discharge or discipline our em- ployees for engaging in union activities. WE WILL offer Frances Stanley and Debra Halverson full reinstatement to their former jobs, restoration of all their rights and privileges, and WE WILL make them whole for any wage losses they may have suffered in the period be- tween the date we discharged them for engaging in union activities and the date we reinstate them. AMERICAN CARE CENTERS, INC., d/b/a GOLD LEAF CONVALESCENT HOME DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Administrative Law Judge: On Oc- tober 10 and 11 , 1974,' I conducted a hearing at Ellens- burg, Washington, to try issues raised by a complaint 2 is- sued on September 13 on the basis of a charge and an amended charge filed by the Public Service and Industrial Employees' Union, Local No. 1239, affiliated with the La- borers' International Union of North America, AFL-CIO 3 on July 22 and August 6. The complaint alleged that the American Care Centers, Inc. d/b/a Gold Leaf Convalescent Home 4 violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereinafter called the Act), by: 1. Discharging two union activists during the Union's preelection campaign because of their union activities. 2. Restricting, prior to the election, union solicitation among its employees during nonworking time. 3. Threatening employees, both prior to and after the election, with job loss, termination of business operations, withholding of wage increases, and other reprisals if they persisted in supporting the Union. 4. Initiating, sponsoring, and circulating a decertifica- tion petition among unit employees after the Union won the election. 5. Harassing a union supporter over her support of the Union subsequent to the election. The Company denied the commission of the acts alleged and denied committing any violation of the Act. The issues are: (1) Whether the two discharged employ- ees were discharged for engaging in union activity; (2) whether the Home restricted union solicitation among its employees during nonworking time ; (3) whether the Home threatened employees with job loss , termination of busi- ness operations , withholding of wage increases , and other reprisals if they persisted in supporting the Union; (4) whether the Home initiated , sponsored, and circulated a decertification petition among the unit employees follow- ing the election; (5) whether the Home harassed a union supporter over her support of the Union ; and, if any of the above occurred, (6) whether by such act or acts the Home violated the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, to examine and cross-examine witnesses, to argue and file briefs . Briefs have been received from the General Counsel and the Home. Based upon my review of the entire record,5 observation of the witnesses , perusal of the briefs and research , I enter the following: Read 1974 after all further date references omitting the year. 2 At the outset of the hearing, I permitted the General Counsel to amend pars. 10 and I I of the complaint to renumber paragraphs 10 and I I as pars. 10(A) and II(A) and to add two new paragraphs numbered 10(B) and 11(B), setting out additional alleged 8(a)(1) violations committed by the Home. 3 Hereafter called the Union. 4 Hereafter called the Home or the Company s Errors in the transcript have been noted and corrected. GOLD LEAF CONVALESCENT HOME 423 FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged , the answer admitted, and I find that American Care Centers, Inc., is an Oregon corpora- tion engaged in Ellensburg , Washington, and other loca- tions in Washington and Oregon in the operation of nurs- ing homes caring for the elderly for profit , that it annually does a gross volume of business exceeding $ 100,000 and purchases in excess of $50,000 worth of goods , materials, and services delivered to it from firms located outside Washington and Oregon state . The answer further admits and I find that the corporation conducts such operations at Ellensburg, Washington, under the name of Gold Leaf Convalescent Home and that at all times pertinent, it was engaged in commerce or in a business affecting commerce, and the Union was a labor organization , as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Chronology of Events In late April the Union began an organizational cam- paign among the Home's employees. On May 6, the Union filed a petition (Case 19-RC-7119) with the Regional Of- fice for certification as the exclusive collective-bargaining representative of the Home's employees in a unit consisting of: All employees employed by the employer at its 1015 East Mountain View, Ellensburg, Washington loca- tion who are working as Nurses' Aides, Housekeepers, Laundry Employees, Orderlies, Building Maintenance Employees, Dishwashers, Traygirls, Kitchen Employ- ees, Cooks and Activity Directors, excluding office clerical employees, professional employees, Registered Nurses, Licensed Practical Nurses , Dieticians, guards and supervisors, as defined by the Act. On May 8 the Union notified the Home that it repre- sented a majority of the employees within the unit and asked the Home to recognize it as the exclusive collective- bargaining representative of the unit employees and to meet and to negotiate with the Union for a contract cover- ing their rates of pay, wages, hours, and working condi- tions. On Monday, May 20, Lynn Campbell, the parent corporation's manager of operations ,6 arrived at the Home. As his first act, he discharged the incumbent administrator (Denny) and assumed Denny's duties . Not long thereafter, he replaced Denny's secretary, Diane Green, an active union supporter, with a former secretary? Two days after his arrival on the premises, Campbell discharged Debra Halverson, the Home's activities direc- tor. The complaint alleges that Campbell discharged Hal- verson because of her activities on behalf of the Union and thereby violated the Act. On May 25, a hearing was held on the Union's Petition for Certification. The sole issue was whether or not the activities director classification was includable within the unit. On May 27, John Bragg 8 reported for work as Denny's replacement. Campbell continued to share with Bragg the duties of administrator at the Home until shortly after the election conducted pursuant to the Petition (the election was held on July 19). On June 19, the Regional Director issued his Decision and Direction of Election in the representation case where- in he found the activities director an includable classifica- tion within the unit and directed a July 19 election. On July 17, Bragg met with unit employees . It is alleged in the complaint that, in the course of those meetings, Bragg threatened employees with closure of the Home in the event they chose union representation, told the employ- ees they could not engage in union solicitation on the premises, stated no raises could be given without union approval, stated the Union's two major supporters were no longer employed at the Home, and stated that the parent corporation would not negotiate with the Union, thereby violating the Act. July 17 was Stanley's last day of work; the complaint alleges that the Home discharged her because of her union activities and thereby violated the Act; the Home alleges she voluntarily terminated her services. The election was held on July 19; it was won by the Union. Following the election, Campbell and Bragg pre- pared a petition wherein the signatories disclaimed any de- sire for representation by the Union, circulated the petition among unit employees, and requested that they sign it. The complaint alleges by so doing they violated the Act. On July 23, the Home filed objections to the election. On July 30, 31, and August 2, Bragg allegedly addressed harassing remarks to an outspoken union supporter over her support of the Union. On or about the latter date, Bragg conducted an employee meeting. It is alleged that during that meeting Bragg threatened to withhold from union supporters, the regular, periodic increases normally granted employees during wage reviews each 3 months un- der the Home's wage policy, while granting same to non- supporters of the Union. It is alleged that, by those actions and statements, the Home violated the Act. On August 10, it is alleged that Bragg repeated his Au- gust 2 remarks regarding wage increases and again stated that the parent corporation would not negotiate with the Union, thereby violating the Act. On September 12, the Regional Director overruled the Home's objections to the election and certified the Union's tary during a period in the fall of 1973 when he acted as administrator at the Home during an interim period which began when Denny's predecessor 6 An admitted supervisor and agent of the Home acting on its behalf at all (Hogan) was terminated and ended when Denny began work as Hogan's times pertinent . successor. 7 Green refused to return to her former job within the unit and accepted 8 An admitted supervisor and agent of the Home acting on its behalf at all termination rather than return . Campbell had worked with the former secre- times pertinent. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status as the exclusive collective-bargaining representative of the unit employees. On September 13 the complaint issued. The alleged unfair labor practices shall be taken up in chronological order. B. The Halverson Discharge The earliest alleged unfair labor practice committed by the Home was Halverson 's May 22 discharge. Halverson was hired by Hogan as activities director on May 1, 1973. At the time of her hire, she had a bachelor's degree in sociology from Central Washington State College at Ellensburg. Halverson's job duties consisted of provid- ing entertainment (movies, music, games, etc.), conducting exercise classes, and providing arts and crafts classes and activities. Part of her job was to stimulate or motivate the patients to participate in the various activities she offered. Since a portion of her activities required her to work eve- ning hours, she did not have a regular work shift. The per- formance of her job duties required that she move about constantly, contacting patients and staff throughout the Home. Her job also required the preparation and mainte- nance of certain records? Prior to April, Halverson worked part time ; due to a state requirement that the Home have a full-time activities director, commencing in April, Halverson worked full time. During the period of her employment at the Home, Hal- verson worked under Administrators Hogan, Denny, and Campbell. Until the time she was discharged, she was nev- er reprimanded, disciplined, or criticized over the quality or quantity of her work.10 Halverson signed a union authorization card either in late April or early May. She attended a May 15 union meeting, along with approximately 24 other employees. Halverson freely disclosed her support of the Union in conversations with other employees during the month of May, told several employees to contact Stanley if they wished to sign union authorization cards, and invited a number of employees to attend a union meeting at her home on the evening of May 22. The sole issue at the May 25 representation hearing (of which the Home had notice prior to Halverson's May 22 discharge) was whether or not Halverson should be includ- ed within the unit. Campbell denied having any knowledge of Halverson's union activities prior to discharging her. No direct evi- dence was produced that he did possess such knowledge." As noted heretofore, prior to Campbell's arrival at the 9 A state inspection not long prior to her discharge resulted in instructions from the state inspector to commence a card file and chart on each patient, to record names, birthdates, physical conditions, and activities participated in. 10 While Campbell testified he was dissatisfied with Halverson's job per- formance during the period he filled in as administrator at the Home during the fall of 1973 and instructed Denny to advertise for a replacement for her, he conceded he did not communicate his alleged dissatisfaction to Halver- son and did not make any effort to see that Denny carried out his instruc- tions. 11 To establish Campbell's knowledge of Halverson's union activities prior to discharging her, the General Counsel relies on: (1) evidence that the Home on Monday, May 20, Halverson had never received any reprimand, discipline, or criticism of her work. Campbell conferred with Halverson during the af- ternoon of Monday, May 20. He asked Halverson how long she had been working full time and she replied she had been working full time since April 1. He inquired what she was doing in her activities program and she told him she had just completed a training session, she had received some new ideas , and she was instituting a new exercise class. Campbell brought up the recent state inspection and the inspector's directions with regard to records. Halverson stated she was preparing patient cards and they were al- most completed, but she wasn't sure just exactly what was wanted on the cards. Halverson also advised Campbell she intended to chart the patients ' activities on their medical charts. Halverson asked for Campbell's suggestions con- cerning patient activities . He suggested she have those pa- tients who were not mobile make scrapbooks and mobiles. The next day, Campbell asked Halverson to bring her cards and come into his office . He also called in Gina Bak- er, the director of nurses. Campbell and Baker inspected the cards. Neither Campbell nor Baker made any com- ments concerning the cards.12 Campbell did suggest that Halverson make up a weekly report listing the activities conducted each day and the names of patients who participated in them, as a supple- ment to the card file. Halverson agreed to comply with his suggestion. Campbell began to look for Halverson about 9 a.m. on the following day (Wednesday, May 22). At or about 10 a.m., he saw Halverson walking down the hall next to his office. He went to his secretary's office, from where he could watch her destination through the glass, and saw her go into the TV room. The TV set was on and two patients were watching it (Mr. and Mrs. William Wells). Campbell went to get Baker and asked her to come into his office.13 On Baker's arrival, Campbell went to the TV room and requested that Halverson accompany him to his office. When Halverson and Campbell were seated in Campbell's office, Campbell informed Halverson she was terminated. She asked why. Campbell said he was termi- nating her because he had seen her walking aimlessly in the halls and had just seen her watching television instead of working. She denied she was watching television and stated her job required that she walk through the halls to contact pros and cons of union representation were discussed among the employees in May and it was generally known among them which employees support- ed the Union and which did not; (2) the small size of the unit (32 employ- ees); (3) Campbell's awareness prior to May 22 that the sole issue (to which he and Halverson testified) at the May 25 representation hearing was whether or not Halverson should be included in the unit, with the Union supporting, and the Home resisting, such inclusion; (4) evidence that Camp- bell and Bragg following Halverson 's discharge referred to her as a "trouble- maker" and "union organizer" who had been fired. 12 They both testified they were shocked at the paucity of information on the cards . While Campbell testified he expressed his dissatisfaction to Hal- verson and gave her instructions concerning what he wanted, both Baker and Halverson testified he did not make any comments or suggestions. Their testimony on this point is credited 13 Campbell testified he had Baker observe Halverson in the TV room from the secretary's office when she responded to his request; Baker testi- fied she entered his office and attended the subsequent discharge interview with Halverson, but did not observe Halverson in the TV room . Baker's testimony is credited. GOLD LEAF CONVALESCENT HOME 425 patients and staff. Campbell then commented that her card file was not being properly maintained and he did not think she was doing an adequate job. While Campbell's stated reasons for terminating Halver- son are weak, inasmuch as he had little opportunity to ob- serve Halverson's work performance in the 2 days he was on the job as administrator after firing Denny, he obvious- ly could not have known whether she was on trips connect- ed with her job when moving about the halls during the times he did observe her on the 2 days in question, and her stay in the TV room was brief, in my judgment the General Counsel has failed to meet his burden of proving that Campbell discharged her because of her union views and activities in support of the Union in the absence of evi- dence that Campbell knew of such views or activities prior to the discharge.14 The discharge may as readily be attri- buted to pique over Denny's failure to carry out his in- structions the previous fall as to Halverson's union activi- ties. I therefore shall recommend that those portions of the complaint alleging Halverson was fired for union activities be dismissed. C. The Alleged July 17 Threats In chronological sequence , the next unfair labor practice allegedly occurred on July 17 when Bragg allegedly threat- ened employees with closure of the Home in the event they chose union representation, told them they could not en- gage in union solicitation on the premises , stated no raises could or would be given without union approval , stated that the Union's two major organizers among the employ- ees were no longer employed, and stated the parent corpo- ration would not negotiate with the Union. Bragg and several unit employees verified that Bragg called a meeting of approximately 20 unit employees in the large dining room at the Home on July 17. Employee Gary Chapton testified that, in the course of the meeting, Bragg announced the Home's opposition to union representation of its employees ; stated that he doub- ted the main office would negotiate with the Union if the Union came in; stated that, if the Union did come in, it might be necessary to close the Home; and stated that, if the Union was certified , any raises due the employees would be frozen and employees would have to get any sub- sequent raises through the Union ; 15 after holding up a pa- per announcing a meeting at Halverson's home the next evening, stated that the ntoice was posted in the lounge, that he had removed it, and that it was illegal for the em- ployees to engage in union solicitation on the premises. 14 There is no evidence establishing that Campbell was made aware of the union discussions and views of the employees during the 2 days preceding the discharge; the fact the Union favored inclusion of the activities director classification in the unit does not necessarily mean that the incumbent therein was prounion ; postdischarge statements by Campbell and-Bragg labeling Halverson as a union supporter do not establish that Campbell possessed such knowledge prior to the discharge, inasmuch as Halverson campaigned heavily for the Union after her discharge and their knowledge of her prounion views could have resulted therefrom. is It was undisputed that the Home reviewed wages quarterly and granted increases based on those reviews. Employees Debra Erickson and Frances Stanley substan- tially corroborated Chapton's testimony. Employee Stanley also testified that Bragg also com- mented that the Union's two major organizers were no lon- ger employed by the Home and would never be rehired. Employee Kathy Peacock testified that in a meeting in Bragg's office about the same date, attended by approxi- mately eight employees, Bragg stated the parent corpora- tion would not negotiate with the Union if it was voted in. Bragg conceded he made statements to the effect that it would not be in the employees' best interests to have union representation and he stated reasons for his position. He also corroborated employee testimony that he produced the union meeting notice, which he had removed from the employee lounge, but stated he commented that the em- ployees could not engage in union solicitation on company premises during working time. 16 He denied he made any mention of possible closure of the Home or that two union organizers were no longer employed and would not be re- hired. With reference to negotiations, he testified that he commented that negotiations would be conducted between the parent corporation and the Union concerning the em- ployees' wages, hours, and working conditions if the Union won the election and he would no longer be able to deal with the employees directly concerning these subjects. With reference to raises, Bragg stated it was his belief that, if the Union won the election and negotiated an open shop contract, that contract would only cover those employees who were union members, their raises would be governed by that contract, and he would be free to make whatever adjustments in wages he desired concerning those employ- ees who were not union members and he may have so stat- ed. Employee Katie Stingley corroborated Bragg's testimo- ny that his remarks concerning solicitation were limited to statements to the effect that employees were barred from talking about the Union while they were working. She did not testify concerning the balance of his July 17 talk. I credit the corroborative testimony of Chapton, Erick- son, and Stanley that on July 17 Bragg, after displaying the union meeting notice he had removed from the employees' restroom, announced that it was unlawful for the employ- ees to engage in union solicitations on the premises, with- out qualification, thereby violating the Act. Their testimo- ny was unhesitating and convincing. I do not credit the testimony of Bragg and Stingley (the Home's observer at the election) to the contrary, particularly since Bragg's pre- trial statement corroborates the testimony of Chapton, et al. I also credit employee testimony recited above that Bragg stated on July 17 that employees would cease to receive the periodic wage adjustments they had custom- arily received upon quarterly wage reviews and would have to look to the Union for any future adjustments in the event they chose to be represented by the Union, which was indirectly corroborated by Bragg. In the absence of corroboration by Stanley and Peacock and a denial by Bragg of Chapton's testimony that Bragg 16 Though his written statement did not contain that qualification and he also testified he still believed all union solicitation on the premises was unlawful 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated it might be necessary to close the Home if the Union won the election, Chapton's testimony to that effect is not credited. I credit Stanley's testimony that Bragg stated two union organizers were no longer employed by the Home and would never return , inasmuch as Bragg's denial is contro- verted by his pretrial statement, in which he states he re- ferred to at least one former employee as a union activist during his talk, with Halverson in mind. I do not, however, find that statement coercive. As to the alleged threat to refuse to negotiate with the Union in the event the Union won the election, I credit employee testimony heretofore recited that Bragg stated he doubted that the parent corporation would so negotiate and I do not credit Bragg's ingenious explanation that he meant that he would not be able to deal directly with the employees. I find and conclude that, by coupling a statement that he doubted the parent corporation would negotiate with the Union with a statement that the employees would cease to receive periodic wage adjustments according to past prac- tice in the event the Union came in, Bragg 's July 17 state- ments to the latter effect interfered with, restrained, and coerced the employees' exercise of their right to freely choose whether or not they desired union representation. I further find and conclude that by his July 17 statement that the employees were barred from any union solicitation on the Home's premises, without qualification , Bragg fur- ther violated Section 8(a)(1) of the Act, despite evidence that the Home did not discipline employees for engaging in union activities during break and lunch periods , inasmuch as his statement may well have inhibited such activities during the crucial period preceding the July 19 election. D. The Stanley Discharge Chronologically, the next unfair labor practice alleged is that, on or about July 19, the Home discharged Frances Stanley for engaging in union activities. Frances Stanley was employed as a laundress by the Home between May 1973 and July 17, her last day of work. Stanley was the moving force in the Union's campaign to organize the Home's employees. She initiated contact with the Union in late April, led the Union's organizational campaign among the employees through late April and early May, distributing union authorization cards to em- ployees, actively soliciting signatures to those cards among the employees and their support of the Union, and secur- ing 10 to 15 signed authorization cards from employees by May 5-which cards supported the Union's May petition for certification and May 8 request for recognition and bargaining. By his own testimony, Bragg was assigned by Campbell immediately after his hire (May 27) to maintain a surveillance of Stanley (plus Kim and Chapton, two other union activists) for the ostensible purpose of seeing they devoted all their paid time to work. Sue Sarchin, who replaced Halverson as activities direc- tor, testified that on June I Bragg told her the Home had several "troublemakers," specifying Frances , Diane, and Kim. Frances Stanley was the only employee at the Home with the first name of Frances . Elaine Kim was the only Kim employed at the Home." Debra Erickson also testified that , about the same date, Bragg told her there were "troublemakers" supporting the Union who would soon be gone . About the same time, Campbell made a statement, in the presence of Baker and Kim, that Stanley was a "troublemaker". 18 Between May 27 and July 17, Bragg carried out Campbell's May 27 instructions to maintain a surveillance over Stanley and testified he observed Stanley conferring with Chapton and other employees for what he believed to be excessive periods of time.19 Stanley was scheduled to work on Wednesday, July 17, and worked that day. She was scheduled to be off Thurs- day, July 18, and Friday, July 19, returning to work on Saturday, July 20, and Sunday, July 21. On July 18, Halverson telephoned employee Barbara Holman to request that Holman attend a union meeting at her home that evening . Holman was noncommittal. Hal- verson was insistent that she attend . Holman was vague about whether or not she would 20 When Holman reported for work that afternoon (she was on the evening shift), she went to Bragg and Campbell, told them that Stanley had telephoned her to request she attend a union meeting that evening and called her a vul- gar name when she expressed reluctance, and asked Bragg and Campbell whether she had to undergo such treatment and attend the union meeting . Campbell and Bragg as- sured her she did not have to go to the meeting. Stanley voted at the election conducted by the Board on the following day, July 19, her first day off. That same day, Bragg told Laundress Shelia Cram to get in touch with Stanley and tell her not to come to work as scheduled the following 2 days, Saturday and Sunday (July 20-21), and to see him the following Monday , July 22.21 When Stanley received Cram's message, she interpreted it as a termination . She came to the Home to see Bragg, as instructed, on the morning of July 22 ; Bragg was not in. Stanley asked Bragg's secretary to give her a written state- ment of the reasons for her discharge . The secretary was noncommittal, but did not inform her she had not been discharged . After waiting a while, Stanley left Bragg's of- fice and went to file for unemployment compensation. Stanley telephoned Bragg the following afternoon and asked when she could come in and get her paycheck. In the interim, Bragg received a copy of Stanley 's application for unemployment compensation and reports from other em- 17 Kim and Stanley made the initial contact with the Union and were active in its campaign . While Diane Green left the Company's employ prior to June I , she remained active with fellow exemployee Halverson in the union campaign. 18 The employee testimony to this effect is credited. 19 Bragg testified the employees received a one-half hour lunch period and two 15-minute break periods each day, one break in the morning and one in the afternoon; he further testified there was no time specified for taking the breaks. They were to be taken at a time the workload permitted. 20 Halverson testified without contradiction that she invited Holman to attend the meeting without revealing her identity ; Holman verified that the caller did not reveal her identity but she believed the caller to be Stanley, although conceding she did not know Stanley well. 21 Bragg left Ellensburg on July 19 to spend the weekend with his family in Portland GOLD LEAF CONVALESCENT HOME 427 ployees that Stanley had telephoned them to complain about her discharge . Bragg stated she could come in and get her check the following day, Wednesday, July 24. Stan- ley saw Bragg on July 24 and asked him why she was fired. Bragg stated he had not intended to fire her , he simply did not want her to return to work until he had an opportunity to talk to her concerning reports that Stanley had been taking excessive breaks and calling employees who were not supporters of the Union vulgar names . Stanley denied taking excessive breaks or calling employees vulgar names and asked that he identify and confront her with those who stated to the contrary, so she could prove such reports were untrue. Bragg did not identify the alleged complainants. Bragg commented that he knew the identity of the 17 em- ployees who voted for the Union and thought Stanley put up the union meeting announcement at the time he re- moved it (July 17), but learned since it was another em- ployee. He stated he earlier had intended to give Stanley an opportunity to present her story, but, by this time, she had the employees so stirred up he had no choice but to termi- nate her. Bragg testified that in view of the fact Stanley had already filed for unemployment compensation , he had de- cided to go along with her belief that she had been termi- nated. Certainly Bragg did not schedule Stanley for any work; he also told Shelia Cram shortly thereafter that he did not want Stanley back because, inter alia, Stanley was responsi- ble for getting the Union together .22 Bragg later told Debra Erickson there was no way he would ever permit Stanley to come back. Bragg also testified that, while he believed Stanley took excessive breaks, this alone did not warrant a discharge, he conceded he knew of others who took what he thought were excessive breaks, but never disciplined anyone. He testified it was because the alleged profanity attributed to Stanley by Holman had occurred that he contemplated Stanley's discharge. 3 Based on the foregoing, I find and conclude that the Home, by Bragg, discharged Stanley and that Bragg was motivated at least in part by Stanley's active role in the Union's campaign in deciding to discharge her as demon- strated by Bragg's surveillance of Stanley from the time he came on the job, his and Campbell's reference to Stanley as a "troublemaker," his and Campbell's seizure upon the Holman report as justification for suspending and later ter- minating Stanley, and Bragg's comment to Cram after Stanley's termination that he did not want Stanley em- ployed at the Home because of her role in "getting the Union together." I further find and conclude that, by so discharging Stanley, the Home violated Section 8(a)(1) and (3) of the Act. 22 Cram's testimony to this effect is credited. 23 While Bragg denied at some point in his testimony he discharged Stan- ley, he stated in his pretrial affidavit that he discharged her for excessive breaks and cursing an employee, told her on July 24 her calls to employees caused him to change his decision from one to temporarily suspend her to a decision to terminate her, and told both Cram and Erickson he would not recall her. E. The July 19 Petition The next alleged unfair labor practice was Bragg and Campbell's July 19 preparation and July 19-23 solicitation of, employee signatures to a petition disavowing any desire for continued representation by the Union. Bragg and Campbell admitted that, shortly after the July 19 election resulted in a union victory by a vote of 17 to 15, they prepared a petition containing the following state- ment: We, the undersigned employees of Gold Leaf Conva- lescent Home, 1050 Mountain View Avenue, Ellens- burg, Washington, do not wish to be represented by the Public Service and Industrial Employees Union, Local 1239, affiliated with the Laborers International Union of North America, AFL-CIO. Bragg and Campbell also admitted that between July 19-23 they solicited unit employees to sign the petition, with considerable success? They further conceded they submitted the petition to the Regional Office on the latter date as part of the Home's objections to the election. The Home contends, however, that Campbell and Bragg were acting in good-faith reliance upon advice given to them on July 19 by the Board agent who conducted the election, to the effect that the Home could nullify the elec- tion results by filing a petition within 5 days after the elec- tion supported by not less than 30 percent of the unit em- ployees disclaiming any desire for union representation. The Board's Rules and Regulations (Sec. 102.69) permit the filing of objections to an election or to conduct affect- ing an election within 5 days following the furnishing of a tally of ballots; its rules (Sec. 102.60) also permit an em- ployer to file a petition for investigation of a question con- cerning representation when faced with a request for recog- nition and bargaining and an employee or group of employees, or any individual or labor organization acting on their behalf, and also permits an employer to file a peti- tion for decertification of a currently certified union on the ground it no longer represents a majority of the employees within the unit covered by the certification. However, the Board has ruled that an employer may not petition for such an investigation during the year following the certification of a union as the duly selected bargaining representative of an appropriate unit of his employees and may not participate in any manner in the preparation or circulation or filing of a petition for decertification of a previously certified collective-bargaining representative. I find and conclude that Bragg and Campbell' s testimo- ny that the Board agent advised them they might file what in essence is a decertification petition within 5 days after the election is incredible and I do not credit their testimony to that effect. Rather, I find and conclude that Campbell and Bragg misunderstood and confused the Board agent's advice concerning the time and procedure within which to follow objections to the election or conduct affecting the election with his advice concerning the Home's right at a later date (the end of the certification year) to question the Union's majority representative status. 24 More than a majority of the employees within the unit signed 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However honest their confusion, it is clear their prepara- tion of a petition for decertification and subsequent aggres- sive solicitation of employees to sign same restrained, inter- fered with, and coerced the employees' exercise of their right to freely choose and support the Union, and I so find and conclude. I further find and conclude that, by such action, the Home violated Section 8(a)(1) of the Act. F. Bragg's Alleged Postelection 8(a)(1) Violations 1. Alleged employee harassment The complaint alleges that on July 30 and 31 and August 2 Bragg harassed an outspoken union supporter (Patty Nevins) because of that support and thereby violated Sec- tion 8(a)(1) of the Act. Nevins was employed by the Home as a kitchen aid. She testified that, on July 30, Bragg approached her and said that, "At least we got rid of the one"; that she replied, "Yes, but you still have me." And he closed with the com- ment, "Yes, we have you and Gary." Bragg testified he did speak to Nevins about the time in question but made the statement that at least we got rid of the president (referring to Nixon) and denies making the statements attributed to him by Nevins. At the time of the alleged exchange, Stanley had been recently terminated. Gwen Bentley, another union activist, had terminated her employment, and union activists Gary Chapton and Nevins were still in the Home's employ. Nevins also testified that on the following day Bragg approached her again in the kitchen, stating he had inter- viewed a man for a kitchen job and that, if he hired him, that man would step all over Nevins , since he was anti- union and Nevins was prounion . Nevins testified she re- sponded by stating she was tired of hearing about the Union all the time. Bragg denied the exchange. Nevins further testified that, on August 2, she received a telephone call from Bragg at her home; that while Bragg did not identify himself, she recognized his voice. She testi- fied Bragg stated: "This is the Union calling. There is a meeting tonight. We are going to bomb the Home and since you are so devoted to the Union, we are going to stick dynamite in your nose and ears and light you up." She testified that she laughed and Bragg closed the conversa- tion by advising her to come in later the following day than scheduled. Another employee of the Home, Eva Liggitt, testified she was with Bragg at the time he telephoned Nevins and that Bragg stated: "This is the Union; we are going to bomb Gold Leaf; can we count on you; you will be the bomb; we will put dynamite in your nose and ears and throw you in." Liggitt further confirmed Nevins' testimony that Bragg then instructed Nevins to report later the following day than her normal schedule. Bragg did not deny this ex- change. Both Nevins and her coworker in the kitchen, Kathy Peacock, testified that Bragg regularly kidded and joked with employees. Bragg also testified this was his normal manner in maintaining what he believed to be good em- ployee relations. While I credit Nevins' testimony concerning the July 30 and 31 and August 2 Bragg statements, I do not find that his comments constituted sufficient restraint, interference with, and coercion with Nevins' exercise of her 8(a)(1) rights to warrant a finding that, by those comments, the Home violated that section of the Act. I therefore shall recommend that those portions of the complaint so alleg- ing be dismissed. 2. Bragg's alleged postelection renewal of his threats to withhold wage increases from union supporters and refusal to negotiate with the Union The complaint alleges that, on or about August 2, Bragg renewed his July 17 threat to withhold from union support- ers the regular periodic increases granted to employees upon the Home's quarterly wage reviews while continuing to grant them to nonsupporters of the Union, and that, on August 10, he repeated that threat and his July 17 threat to refuse to negotiate with the Union. Nevins testified that, on approximately August 8, Bragg conversed with her in his office and that, in the course of that conversation stated if the Union came in, those who signed up with the Union would not receive any further raises at the quarterly wage reviews while those who were against the Union would continue to receive them. Debra Erickson was supported by Kathy Peacock in her testimony that, on August 10 in his office, Bragg stated if the Union came in, there would probably be an open shop and those with the Union would not receive any further raises while those who were against the Union would con- tinue to receive periodic increases and also stated he did not think Portland would negotiate with the Union. Bragg conceded he commented that, if an open shop contract were to result from negotiations between the cor- poration and the Union, the union employees' wages would be governed by contract, while the nonunion em- ployees' wages would continue to be adjusted quarterly by him. Bragg denied that he also said the corporation would not negotiate with the Union, but rather stated that all negotiations would be conducted by representatives of the parent corporation and the Union and he would no longer deal directly with the employees concerning their rates of pay, wages, hours, and working conditions. I credit the testimony of Nevins, Erickson, and Peacock, as partially corroborated by Bragg, and find and conclude that Bragg, on two occasions in August, noted, repeated his July 17 comments that there would not be any negotiations between the Union and the Company and that, in the event any negotiations did occur, an open shop would re- sult and those employees who supported the Union would have their wages governed by the contract, while he would be free to continue to grant periodic adjustments to non- supporters of the Union. I further find and conclude that, by so commenting, Bragg restrained, interfered with, and coerced those em- ployees' exercise of their Section 7 rights and thereby vio- lated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. At all times pertinent, the Home was an employer GOLD LEAF CONVALESCENT HOME 429 engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent, Lynn Campbell and John Bragg were supervisors and agents of the Home acting on its behalf. 3. The Home violated: (a) Section 8(a)(1) of the Act by (1) Bragg's July 17 pro- hibition of union solicitation on the premises of the Home; (2) Bragg's July 17 and August 2 and 10 threats to cease the Home's previous practice of granting quarterly wage re- views and increases to employees supporting the Union; (3) Bragg's July 17 and August 10 threats that the parent corporation would not negotiate with the Union; and (4) Bragg and Campbell's July 19-23 preparation of a decerti- fication petition and solicitation of employee signatures thereto. (b) Section 8(a)(1) and (3) of the Act by discharging Frances Stanley because she engaged in union activities. 4. The Home did not otherwise violate the Act. The aforesaid unfair labor practices affect interstate commerce as defined in the Act. THE REMEDY Having found that the Home engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Home be directed to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the purposes of the Act. It shall be recommended that the Home be ordered to cease and desist from prohibiting its employees' engage- ment in union solicitation during their nonworking periods on the premises of the Home, threatening to withhold and withholding quarterly wage reviews and increases from those of its employees who support or supported the Union, threatening to refuse to negotiate with the Union (or any other labor organization which is certified as the exclusive collective-bargaining representative of the Home's employees) concerning their rates of pay, wages, hours, and working conditions, 5 preparing petitions to de- certify the Union (or any other labor organization previ- ously certified as the exclusive collective-bargaining repre- sentative of its employees) and soliciting its employees' signatures thereto, and discharging or otherwise disciplin- ing its employees for engaging in activities on behalf of the Union or any other labor organization. It shall also be recommended that the Home be ordered to offer Frances Stanley immediate and full reinstatement to her former job or, if her former job no longer exists, to a substantially equivalent job without prejudice to her se- niority and other rights and privileges, and to make her whole for any wage losses she may have suffered by pay- ment to her of the sum of money she would have earned 25 On February 7, 1974, the Regional Director for Region 19 issued an order granting the Union's petition to revoke its September 12, 1974, certifi- cation upon its disclaimer of any continued interest in representing the Home's employees. from the date of her discharge to the date she is reinstated, less any ret earnings she may have received during the period. Her lost wages shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum, computed in accordance with the formula prescribed in Isis Plumbing and Heating Co., 138 NLRB 716 (1962). It shall be further recommended that those portions of the complaint alleging unfair labor practices other than those found heretofore be dismissed. Upon the basis of the foregoing findings of fact, conclu- sions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 26 Respondent, American Care Centers, Inc., d/b/a Gold Leaf Convalescent Home, Ellensburg, Washington, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting its employees from engaging in union so- licitation during their nonworking hours on the premises of the Home. (b) Threatening to withhold and withholding quarterly wage reviews and increases from those of its employees who support or supported the Union or any other labor organization. (c) Threatening to refuse to negotiate with the Union (or any other labor organization when and if certified) as the exclusive collective-bargaining representative of an appro- priate unit of the Home's employees concerning their rates of pay, wages, hours, and working conditions. (d) Preparing, circulating, and soliciting signatures to decertification petitions designed to nullify the previous certification of the Union or any other labor organization as the exclusive collective-bargaining representative of an appropriate unit of the Home's employees. (e) Discharging or otherwise disciplining its employees for engaging in union activities. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Offer Frances Stanley immediate and full reinstate- ment to her former job or, if her former job no longer exists, to a substantially equivalent job without prejudice to her seniority and other rights and privileges, and make her whole in the manner set forth in the "Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all rec- ords necessary for the determination of the amount of backpay and other payments and obligations due under this recommended Order; 26 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 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its Ellensburg, Washington, premises copies upon receipt thereof, and be maintained by it for 60 con- of the enclosed notice marked "Appendix B." 27 Copies of secutive days thereafter, in conspicuous places, including said notice, on forms provided by the Regional Director all places where notices to employees are customarily post- for Region 19, after being duly signed by an authorized ed. Reasonable steps shall be taken by the Home to ensure representative of the Home, shall be posted immediately that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- 27In the event that the Board's Order is enforced by a Judgment of a dent has taken to comply herewith. United States Court of Appeals, the words in the notice reading "Posted by IT IS FURTHER ORDERED that the complaint be dismissed 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 insofar as it alleges violations of the Act not specifically the National Labor Relations Board" found.