Goodwater Nursing Home, Inc.

GOODWATER NURSING HOME 149 Goodwater Nursing Home, Inc. and Lillie H. Russell. Case 10-CA-11171 January 12, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 5, 1975, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions.' 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 has decided to affirm the rulings, findings,2 and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Goodwater Nursing Home, - Inc., Goodwater, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on July 8, 1975, at Alexander City, Alabama. The charge was filed on March 20, 1975, and an amend- ed charge was filed on April 29, 1975. The complaint in this matter was issued on May 28, 1975. The issues concern whether the Respondent has violated Section 8 (a)(1) of the Act by refusing to hire Lillie H. Russell on and after Feb- ruary 1, 1975. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admis- sions therein. Goodwater Nursing Home, Inc., the Respondent, is, and has been at all times material herein, an Alabama corpora- tion with an office and place of business located at Good- water, Alabama, where it is engaged in the operation of a proprietary nursing home which provides resident care for aged and infirm persons. Respondent, during the past cal- endar year, which period is representative of all times ma- terial herein, received gross revenues in excess of $100,000. During calendar year 1974, Respondent received payments of approximately $168,000 from Medicaid, a program ad- ministered by the United States Department of Health, Education and Welfare. As conceded by Respondent and based on the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' The Respondent has requested oral argument. This request is denied as the record and exceptions adequately present the issues and the positions of the parties 2 The Administrative Law Judge properly considered the testimony relat- ing to the statements made by Respondent's deceased former administrator, Fletcher Swindall The Board has long held that statements attributed to deceased persons may be considered, although such testimony is carefully scrutinized See Daniel A. Donovan, Charles Brennick and John Brennick, Co-Partners doing business under the trade name and style of Daniel A Dono- van d/b/a New Fairview Hall Convalescent Home, 206 NLRB 688, 701 (1973), and Sam Wallick and Sam K Schwalm, d/b/a Wallick and Schwalm Company, et al., 95 NLRB 1262, 1263 (1951), enfd. 198 F.2d 477 (C A. 3, 1952). Furthermore, the credited testimony regarding the conversation be- tween Attorney William Densen and Assistant Administrator Robbins clearly establishes that Robbins refused to consider Russell for employment because of Robbins' belief that Russell had engaged in protected concerted activity in the past and therefore fully supports the 8(a)(1) violation found by the Administrative Law Judge DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-' 1. Lillie H. Russell2 was formerly employed by the Re- spondent as a nurses aide from on or about December 10, 1969, until on or about June 10, 1973. Around mid-April to the last of April 1973, some of Respondent's employees engaged in discussions concern- ing the obtaining of a raise. During this period of time, mid-April to the last of April 1973, Russell's involvement in such activity, described above, was extremely limited. Thus, on one occasion dur- ing the time period previously described, Russell was asked by a fellow employee, unidentified otherwise, to sign a peti- i The facts are based on a composite of stipulations and the credited aspects of the testimony of Russell, Thomas, and Leverette The critical issue in this case is whether the Respondent has refused to employ Russell on and about February 1, 1975, and-thereafter because she engaged in protected concerted activities, or ,Respondent so believed, in 1973. 222 NLRB No. 32 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to get a raise. Russell told such employee that she would not sign the petition. Russell, however, suggested to such employee that all of the employees get together with Mr. Fletcher Swindall (Respondent's administrator) and that maybe they could' work something out about a raise. On the same day, either before Russell's conversation with the unidentified employee or after such conversation, Administrator Fletcher Swindall spoke to employee Thom- as about Russell. What was said by Swindall is revealed by the following credited excerpts from Thomas' testimony.3 A. So he told me, he was talking to me- Q. This is Fletcher Swindall? A. He said he was going to turn her around at the door. Thomas also credibly testified that on the same day Swindall made another remark about Russell. Whether this remark was made at the same time that Swindall said he would turn Russell around at the door, or later in the eve- ning, is not clear. The remark made by Swindall is revealed by the following credited excerpts from Thomas' testimo- ny A. He said, "She wouldn't get nary another job no where else, especially right away." Q. When did he say that? A. The same evening he was talking to me. On the same-day and following Administrator Fletcher Swindall's remarks to Thomas concerning turning Russell around at the door, Russell spoke to a small group of em- ployees, one of whom was Thomas. At such time the small group of employees were leaving from work as-Russell was coming to go to work. What occurred is revealed by the following credited excerpts from Thomas' testimony. A. Mrs. Russell, and she stopped and asked us if we were going to be at the meeting and I said meeting where and she said, "You haven't heard about it." And I said, "No." And she said that we were going to ask for a raise and I said, "Well, I didn't know nothing about it," and so we just went on. On the same day as the foregoing conversations and fol- lowing the same conversations, Administrator Fletcher Swindall spoke to Russell, accused her of having stirred the employees- up concerning a raise, and told her she should find a job elsewhere. Shortly thereafter Russell was transferred from shift hours of 3 p.m. to 11 p.m. to hours from 7 a.m. to 3 p.m. Russell was also told by her supervisor that she should not talk to other employees. Russell worked until sometime ap- parently after mid-May, took a vacation for 15 days, re- 3 Fletcher Swindall died on or about January 31, 1974 The Respondent contends that the testimoify--by Thomas, by Russell, and the testimony by Densen relating in effect directly or indirectly to statements by Swindall is inadmissible because of Alabama's Dead Man Statute (Code of Alabama, Title 7, §433). Assuming such statute to have evidentiary effect in this pro- ceeding, I am persuaded that the testimony of Thomas and Densen is clear- ly admissible within the purview of the statute However, Rule 601 of the Federal Rules of-Evidence, approved January 2, 1975, and effective on July 1, 1975, controls the question of admissibility of such evidence and warrants the receipt and consideration of all of the testimony alluding to statements by Fletcher Swindall. turned and worked for several days, and resigned her job on June 10, 1973. At the time that Russell resigned her job on June 10, 1973, she told Administrator Fletcher Swindall 4 that here was the resignation he wanted and handed him a written resignation in a sealed envelope. The written resignation was to the following effect: June 10, 1973 TO WHOM IT MAY CONCERN. I, LILLIE H RUSSELL, DUE TO WORKING CONDITIONS, AND AT THE REQUEST OF MR FLETCHER SWINDALL, I RESIGN MY JOB I WAS TAKEN OFF MY REGULAR JOB, WHICH WAS THE 3 TO 11 SHIFT, BECAUSE OF A RUMOR THAT I WAS TRYING TO GET ALL THE EM- PLOYEES TO MEET WITH MR SWINDALL TO TALK OVER A RAISE IN SALARY, WE HAD NOT HAD ONE IN THREE YEARS MR SWINDALL WAS VERY ANGRY WITH ME AND I WAS TOLD TO LEAVE, THAT HE THOUGHT IT WAS BEST. IN OTHER WORDS I WAS FIRED AS I SEE IT, ALL THE BLAME WAS ON ME, ALTHO, I WAS NOT THE HEAD OF IT, BUT, I WENT ALONG WITH THE OTHERS. AS I SEE IT, I AM BEING MADE AN EXAMPLE OF. 2. Background evidence was presented by the Respon- dent relating to incidents and occasions wherein Respondent's nursing supervisor, Leverette, criticized or counseled Russell during the period of time from Decem- ber 1969, to January 23, 1973.5 Background evidence was also presented by the Respon- dent to the effect that Administrator Fletcher Swindall was concerned about the "rehabilitation" or saving of Russell as an employee in 1973 and had sought the aid of William Resha. Resha was classified as a medical social worker consultant to the Respondent. Resha's responsibilities in- cluded providing a social and a pschological workup on new admissions (patients), counseling of patients, confer- ring with Respondent's officials on personnel problems that might be job related, and in providing in-service train- ing. Resha is not, has not been educated as such, and has not been trained as a physician. He is not and has not been a psychiatrist. His educational degrees, and 10 years' experi- ence, have been in the related fields of psychiatric social work, and social work and psychology. Resha described his experience in effect as being 10 years of psychiatric experi- ence working in mental health centers. Resha, at Fletcher Swindall's request, commencing about 9 months before June 10, 1973, observed Russell'on ° Swindall's brother-in-law, Mountcastle, was present at the time. 5 I credit Leverette's testimony over Russell's where such testimony is in conflict. I found Leverette to be a completely frank, forthright, and truthful witness Although, in general, I found Russell to appear to-be a truthful witness, I did not find her to be a completely frank and forthright witness concerning complaints or criticism made to her In some respects Russell appeared to be attempting to present her testimony in a light she thought favorable to herself In some respects Russell in her testimony became too much of an advocate . In other respects, as to whether she was a "leader" or spokesman, Russell appeared to be meticulous in telling the truth. I note that I am persuaded that Russell, on her May 31, 1974, application wrote the word "vacation" as indicating the reason for her leaving Respondent's employment I find that a comparison of the handwriting on such applica- tion and known specimens of Russell's handwriting establishes that she wrote the word "vacation" on such application I am persuaded that in an attempt to get work in 1974, Russell attempted to avoid reference to the real reason for her having left Respondent's employment in 1973 1 discredit her denial that she wrote the word "vacation" on such application. GOODWATER NURSING HOME a few brief and sporadic occasions. Since the time he spent at the Respondent's location was essentially limited, it is clear that he did not spend a great deal of time or effort concerning his observation of Russell. Resha's testimony revealed that he was told that Russell had exhibited signs of being unhappy with the Respondent. Resha testified that he observed Russell as 'he worked with patients, and that he spoke to her and observed her on several occasions during breaks. Resha's testimony revealed that he visited the Respon- dent about once a month for about 4 hours, and saw about 10 to 1-5 patients per visit. Resha testified that he made the following recommenda- tion to Fletcher Swindall as is revealed by the following credited excerpts from Resha's testimony. A. Yes, I recommended, number one, that he be fair to the employee, document any problems that he was having with her; number two, that they be brought to her attention ; and number three, after fair warning if it was not working out to her best and to the best of the nursing home that I felt that from a personal and emotional point of view that it would be best for her not to continue working there. Resha credibly testified to the effect that the recommen- dation, set forth above, was made approximately 5 or 6 months before June 10, 1973.6 Resha testified to the effect that he was of the opinion, based on his observations , that Russell was not temper- mentally suited to be a nurses aide at the Respondent's nursing home. Resha, however, did-not express this opin- ion to Fletcher Swindall.7 3. Administrator Fletcher Swindall died on or about January 31, 1974. Sometime after the death of Fletcher Swindall, Russell returned to Respondent's nursing home and made an ap- plication for employment.8 Russell first saw her former supervisor , Leverette, and was told that she no longer handled applications, that Mrs. Robbins handled such applications. 6 It is interesting to note that Nursing Supervisor Leverette's last entry of counseling to Russell occurred on January 23, 1973, apparently 5 months before the termination of Russell on June 10, 1973. 7I do not credit or believe Resha's testimony relating to his "opinion" that Russell was not temperamentally suited to be a nurses aide at Respondent's nursing home. Resha testified, and I believe such testimony, that he was interested in the welfare of patients. The purpose of a nursing home would appear to be primarily directed to the welfare of its patients This being so, if Resha were aware of such problems with Russell, I am persuaded that he would have formulated such opinion in 1973 and would have communicated the same to Fletcher Swindall. Since he did not do so, I am persuaded that his testimonial opinion is mere rationalization. Further, Resha testified to the effect that he was not saying that Russell was not qualified to be a nurses aide, merely that she was not tempermentally quali- fied to be a nurses aide at Respondent's-nursing home. In sum, I am per- suaded that Resha has strained to appear to be an expert and to have an expert opinion in this case. The quality of his testimonial expertness ap- peared unobjective and unreliable 8 Whether the application involved is the application in evidence in this proceeding is not clear Russell testified to making three written applica- tions. One application, dated May 31, 1974, is in evidence Russell testified that her latest application was made on May 9, 1975. The General Counsel's opening statement alluded to an application being made in the winter of 1975. No specific evidence, however, was adduced to such fact. 151 The facts are clear that after filing her application for employment with Mrs. Robbins, Russell called Mrs. Rob- bins on several occasions and spoke about her application. Russell also later filed another application for employment with Mrs. Robbins .9 As of around February 1, 1975, Rus- sell had been unable to secure employment at the Respondent's nursing home. - The General Counsel apparently attempted to establish that the Respondent has hired nurses aides following Russell's application for employment with the Respondent in 1974, and has hired or was seeking to hire nurses aides on or around February 1, 1975. The evidence, however, is insufficient to so establish. Thus, Thomas, an employee until the last of 1974, testified to the effect that he saw several new employees working as nurses aides for a day or two at some point of time after _June 10, 1973. Such evi- dence is insufficient to establish that nurses aides were hired on a full-time or permanent basis. Such evidence is also so imprecise that one would have to speculate as to when the hirings occurred, whether after June 10, 1973, and before January 31, 1974, or thereafter and until De- cember 31, 1974. A former employee, Griffin, testified to the effect that around February 1, 1975, she had an occa- sion to speak to Assistant Administrator Robbins about her (Griffin's) sister's W-2 form, was questioned concern- ing papers that Robbins needed to fill out concerning an unemployment claim filed by Griffin. According to Grif- fin, Robbins wanted to know why Griffin had quit and if she were looking for a job. A few days later Robbins tele- phoned Griffin and wanted to know what date Griffin had quit. Robbins also asked Griffin if she still wanted work and Griffin told Robbins that she did not. Robbins credi- bly denied that there were openings for work at the time she spoke to Griffin. Robbins also denied asking Griffin if she wanted a job. I am persuaded from all the facts that Robbins may have asked Griffin if she wanted a job. How- ever, I am persuaded that such question was related to the "unemployment" forms being filled out and in- effect relat- ed to whether Griffin was unemployed and seeking work. I credit Robbins' testimony to the effect that there were no job openings for a nurses aide around February 1, 1975. The overall evidence also fails to reveal that there have been any job openings for nurses aides following February 1, 1975. B. The Alleged Unfair Labor Practices After Christmas 1974, and prior to January 15, 1975, Russell went to the office of Attorney William Densen and discussed her need for employment. At this time or at a later time Russell discussed her belief that in 1973 she had 9 A May 31, 1974, application form completed by Russell and filed with the Respondent was received into evidence. This May 31, 1974, application was either the first or second application completed and filed by Russell with the Respondent. On the May 31, 1974, application form the word "vacation" is written as the reason Russell left Respondent's employment in 1973. Russell in her testimony disputes that this word is her handwriting An examination of the writing on the document and the word " vacation" as written on an exhibit, for purposes of the hearing, convinces me that the word as written was in Russell's handwriting. Although Russell was a cred- ible witness as to most of her testimony, I do not find her credible on the point involved, nor did I find her credible as to much of her testimony concerning complaints about her work. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been asked to seek other employment because of Respondent's belief that she had engaged in activity in trying to stir employees up to obtain a raise. Around February 1, 1975, Attorney Densen telephoned the Goodwater nursing home and spoke to Assistant Ad- ministrator Robbins. Densen testified to the effect that the conversation be- tween him and Robbins was as follows: A. Well, it was in the last part of January that I telephoned Mrs. Robbins at the Goodwater Nursing Home and I mentioned to her my objective in calling and asked if there was a possibility that Mrs. Russell could obtain employment and Mrs. Robbins, as I re- call the conversation, stated to me by way of tele- phone that there were several or a number of applica- tions on the file and that they were not hiring anybody at that particular time. And, that she could not hire Mrs. Russell again, or could not hire her period, because of the position of the Swindalls, and she said this position grew out of Mrs. Russell's prior efforts to get a raise for herself and her fellow employees. Robbins initially testified to the effect that the conversa- tion essentially occurred as described by Densen excepting that she did not tell Densen that she could not hire Russell because of the position of the Swindalls and that the posi- tion grew out of. Mrs. Russell's trying to get a raise for herself and her fellow employees. Robbins, however, later testified to the effect that, on one of the occasions when Russell talked to her, Russell had told her of a misunderstanding with Fletcher Swindall and that it was possible that she had told this to Densen. Robbins testified to the effect that she had not been aware of Russell's past difficulties and had not had discus- sions with the Swindalls about such problems prior to her conversation with Densen.10 Dr. Jerry Swindall, who suc- ceeded Fletcher Swindall as administrator, testified credi- bly to the effect that he had not had any discussions with Fletcher Swindall concerning Russell and the "raise" ques- tion in 1973. Considering all of the facts and the testimonial demean- or of the witnesses, I credit Densen's version of his conver- sation with Robbins over that of Robbins'. I have consid- ered the fact that Densen had a copy of his hearing affidavit with him when first presented as a witness. His testimony, however, at a time when the affidavit was not in front of him was essentially the same as when the affidavit had been in front of him. Densen appeared to be a fully frank, forthright, and truthful witness. Although there is no evidence that Densen had been retained by Mrs. Russell when he made his telephone call to Robbins, I am not persuaded that if he had been so retained that such retain- ment would have caused him to falsify facts. I have consid- ered whether Densen could have confused what Russell had related to him with the remarks by Robbins. Consider- ing the fact, however, as testified to by Robbins, that Rus- sell had related to Robbins details of her misunderstanding 10 As indicated later, I do not credit Robbins' testimony in such regard with Fletcher Swmdall and Robbins' testimony to the ef- fect that she could have possibly related the same to Den- sen and all of the testimony and facts, I find Densen's version of facts more reliable than Robbins'. Considering all of the facts and the foregoing, I conclude and find that the facts preponderate for a finding that the Respondent, from on or about February 1, 1975, and thereafter, has discriminatorily considered that it would not employ Russell as a nurses aide because of its_ belief that she had engaged in protected concerted activity in 1973. The facts are clear that Russell engaged in protected concerted activity around April and May 1973, that the Respondent believed at such time that Russell was a leader in such activity, and that Respondent at that time was dis- cnminatorily motivated against the employment of Russell because of such belief that she had engaged in such pro- tected concerted activity. I am persuaded from all the facts that Nursing Supervi- sor Leverette and others would be aware of Administrator Fletcher Swindall's hostility toward Russell because of his belief that she had been a leader in protected concerted activity in 1973. Under these circumstances, I am persuad- ed that Assistant Administrator Robbins would have been made aware of such belief that Russell had engaged in protected concerted activity and of Respondent's hostility toward her when Russell initially applied for work again in 1974.11 Whether such awareness came from the Swindalls or from other supervisors such as Leverette is not material. Furthermore, even if Robbins had not been aware of Respondent's past hostility toward Russell because of her engagement in past protected concerted activity, the facts compel a finding that Robbins adopted such hostility fol- lowing Russell's revelation to her of Russell's problems with Fletcher Swindall. In sum, the preponderance of the facts reveal that the Respondent has violated Section 8(a)(1) of the Act by re- fusing to consider Russell as an applicant for employment on a nondiscriminatory basis as regards its belief of her engagement in past protected concerted activity.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 11 1 credit, however, Dr. Jerry Swindall's denial that he was aware of Russell's past protected concerted activities or her problems with Fletcher Swindall 12 The facts do not establish that there has been a job opening for a nurses aide during the pertinent time involved herein. It is, however, violative of the Act for a respondent to consider the status of an applicant for employ- ment on a discriminatory basis, to in effect have a fixed intention to refuse to hire an employee because she has engaged in protected concerted activi- ty Essentially, the presence or absence of a job opening in such circum- stances is a matter for compliance. See G C Lingerie Corp, 146 NLRB 690 (1964). GOODWATER NURSING HOME 153 V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. It having been found that the Respondent has refused to consider Lillie H. Russell for employment as a nurses aide on a nondiscriminatory basis and without regard for its belief that she has engaged in past protected concerted ac- tivity, in violation of Section 8(a)(1) of the Act, it will be recommended that the Respondent offer her employment in such position of nurses aide as she would have been hired, if such position has been available and filled prior to the date of the offer herein referred to, or if such opening has not occurred prior thereto, consider her for future job openings (nurses aide) on a nondiscriminatory basis and without regard to belief of her past protected concerted activity. It will also be recommended that the Respondent make Lillie H. Russell whole for loss of earnings, if any, resulting from its refusal to consider her for employment on a non- discriminatory basis and without regard to its belief that she has engaged in past protected concerted activity.I3 Although Respondent through witness, Resha, attempt- ed to establish that Russell was not a suitable employee for reemployment, I reject any contention in such regard. As indicated, Resha's testimony in such regard was not objec- tive and is not reliable. On the contrary, Resha's own testi- mony establishes that Russell is qualified to be a nurses aide. CONCLUSIONS OF LAW 1. Goodwater Nursing Home, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to consider Lillie H. Russell for employ- ment on a nondiscriminatory basis and without regard for its belief that she has engaged in past protected concerted activity, the Respondent has violated Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Lillie H. Russell immediate employment in such position of nurses aide as she would have been hired, if such position has been available and filled subsequent to February 1, 1975, or, if such position no longer exists, to a substantially equivalent position, without prejudice to se- niority or other rights, or if such position has not been available and filled, consider her for employment for any future job openings (nurses aide) on a nondiscriminatory basis and without regard to its belief that she has engaged in past protected concerted activity. (b) Make Lillie H. Russell whole for loss of earnings, if any, resulting from its refusal to consider her for employ- ment on a nondiscriminatory basis and without regard to its belief that she has engaged in past protected concerted activity. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at Respondent's nursing home at Goodwater, Alabama, copies of the attached notice marked "Appen- dix." 15 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by Re- spondent for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 13 Earnings to be computed in accord with F. W Woolworth Company, 90 NLRB 289 (1950); and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 14 In the event no exceptions are filed as provided by Sec. 102 48 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. i5 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Respondent, Goodwater Nursing Home, Inc., Goodwa- ter, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to consider Lillie H. Russell for employ- ment as a nurses aide on a nondiscriminatory basis and without regard for its belief that she has engaged in past protected concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Lillie H. Russell immediate employ- ment in such position as nurses aide, as she would have been hired, if such position has been available 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and filled subsequent to February 1, 1975, or, if such position no longer exists, to a substantially equivalent position, without prejudice to seniority and other rights, or if such position has not been available and filled, consider her for employment for any future job openings (nurses aide) on a nondiscriminatory basis and without regard to our belief that she has engaged in past protected concerted activity. WE WILL make Lillie H. Russell whole for loss of earnings, if any, resulting from our refusal to consider her for employment on a nondiscriminatory basis and without regard to our belief that she has engaged in past protected concerted activity. WE WILL NOT refuse to consider Lillie H . Russell for employment on a nondiscriminatory basis and with- out regard to our belief that she has engaged in past protected concerted activity. WE WILL NOT in .any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 -of the Act. GOODWATER NURSING HOME, INC.