Summer Hill Nursing Home

SUMMER HILL NURSING HOME 433 Neil Kerman, Melvin Feigenbaum, Jacob Kresch and David Kerman, a Co-Partnership, d/b/a Summer Hill Nursing Home' and Charlene Goerke. Case 22-CA-6252 Janauary 19, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On October 3, 1975, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings , findings 2 and conclusions of the Administrative Law Judge and to adopt her 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, Neil Kerman, Melvin Feigenbaum, Jacob Kresch and David Kerman, a Co-Partnership, d/b/a Summer Hill Nursing Home, Old Bridge, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. The questions presented are whether Respondents, in vio- lation of Section 8(a)(1) of the National Labor Relations Act, as amended, (the Act) interrogated and threatened their employees concerning their membership in, activities on behalf of, and sympathy for District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO (the Union or District 1199); and, in violation of Section 8(a)(3) and (1) of the Act, reduced the hours and changed the working status of employee Charlene Goerke (Miss Goerke), and thereafter discharged her, because she joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or mutual aid and protection. Upon the entire record, including my observation of the witnesses, and after due consideration of the oral argu- ments of both parties at the conclusion of the hearing, the brief filed by Respondents, and the "additional argument" submitted in a letter dated July 25, 1975, from counsel for the General Counsel (the General Counsel) with a copy to Respondents' counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondents are a co-partnership doing business under the trade name of Summer Hill Nursing Home. Respon- dents maintain their principal office and place of business in Old Bridge, New Jersey, where they provide nursing home and related services. During the respective years pre- ceding the issuance of the complaint and amended com- plaint, constituting representative periods, Respondents caused to be purchased, transferred to, and delivered to their Old Bridge facility medical supplies and equipment, drugs, and other goods and materials valued in excess of $50,000 in interstate commerce directly from States other than New Jersey. I find that, as Respondents concede, Re- spondents are engaged in commerce within the meaning of the Act, and that assertion of jurisdiction herein will effec- tuate the policies of the Act. District 1199 is a labor organization within the meaning of the Act. The name of Respondent Neil Kerman appears as amended at the hear- m§ The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544'(1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding was heard at Newark, New Jersey, on June 12, 13, 16, 17, and 18, 1975, pursuant to a charge filed on February 24, 1975, and a complaint issued on April 11, 1975, and amended on May 22, 1975, and May 28, 1975. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background About spring 1974, the Teamsters began an organizing campaign at Summer Hill Nursing Home (the Home). In September 1974, the Board certified that the Teamsters had lost a representation election conducted in August 1974. On several occasions within a 3 -week period during the Teamsters' campaign, including 3 occasions on a single day, Respondent Neil Kerman,' Respondent Melvin Feig- enbaum, and/or Supervisor George McCraw 2 instructed 'Hereafter referred to as Kerman Respondent David Kerman will be referred to by his full name. Z McCraw's supervisory status is alleged in paragraph 7a of the amended Continued 222 NLRB No. 71 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then switchboard operator Jean Green to call the police to remove union men from the property.3 At, an employee meeting in June 1974, when management discussed wage increases and a medical and dental insurance plan, Feigen- baum or (probably) Kerman told the employees that they would not get better wages and benefits if a union were seeking them.4 In the course of the Teamsters campaign, employee Green provided Kerman with all but two of the pieces of literature which her sister (employed by Respondents until about late May 1974) received from the Teamsters. Mrs. Green offered him one piece of the remaining literature as well, but he said that he had already obtained it from em- ployee Phyllis Goerke.5.On one occasion during this pen- od, when then switchboard operator Green advised Ker- man that she had put on "hold" a telephone call to employee Hartley from a Teamsters representative, Ker- man asked Mrs. Green to arrange for him to listen in on the conversation. When she replied that she did not know how to arrange this, he asked her to listen in on the call. She did so, and then reported to Kerman that there would be a Teamsters meeting that night at a specified restaurant in the area. He replied, ". . . okay." 6 Also during the Teamsters campaign, Feigenbaum asked Mrs. Goerke, a registered nurse who had been doing some administrative and related work at the Home and with whom he and Kerman were then personal friends,? which staff members favored the Union and which did not. Mrs. complaint, and admitted in paragraph 7 of Respondents' "Answer to amended amended complaint " 3 This finding is based on the testimony of Mrs. Green, not actively em- ployed by Respondents at the time of the hearing, whom the General Coun- sel called as a rebuttal witness - She.impressed me as an honest witness, and her testimony about these calls was persuasively specific. McCraw was not asked about these incidents. On cross-examination, Respondents Feigen- baum and Kerman both denied that these incidents occurred. As discussed infra, I regard these Respondents as unreliable witnesses in other respects On the basis of the witnesses' demeanor, I credit Mrs Green 4 Employees Green, Leola Hartley, and Emily Holbrook, all of whom impressed me as honest witnesses, all testified as rebuttal witnesses that at least this much was said about a union Because the complaint contains no allegations as to this incident, I regard my finding in the text as sufficient for purposes of this case Kerman's version of the meeting did not refer to the Union, he was not specifically asked whether it was mentioned For demeanor reasons, I discredit Feigenbaum's denial that a union was men- tioned 5 My findings as to Kerman's receipt of Teamsters literature are based on Mrs. Green's testimony. For the reasons set forth supra, fn. 4, I do not credit Kerman's or Feigenbaum's denials. 6 My findings about this incident are based on Mrs Green's testimony Kerman was not asked about this incident 7 Mrs. Goerke's sister had been Respondents' director of nursing when the Home opened its doors in September 1972 While her sister was serving in this capacity, Mrs Goerke helped her to find nurses and typed up person- nel policies and procedure manuals for her Between June 1974 and the end of that year, because of the health problems of then director of nursing, Donald Powers, Mrs Goerke performed some administrative work which he normally would have done In addition, when the nursing home first opened, Mrs. Goerge performed overtime work without compensation be- cause of "a feeling of loyalty I had It was brand new. I was proud of the place It was like home, [a] family thing " - Also because of Powers' health problems, Feigenbaum and Kerman had frequent occasions to visit Powers, who was living with the Goerkes a short distance from the Home. Such visits led to conversations with the Goerke family. On several occasions, at Mrs Goerke's request, Kerman arranged for her to purchase at wholesale prices jewelry for her daughter, employee Charlene Goerke On another occasions, Mrs Goerke lent Ferman her car Goerke, who at that time opposed the Union, supplied this information to Kerman and Feigenbaum and to then di- rector of nursing Powers. Other employees also reported to these members of management about fellow employees' Teamsters activities. At the time of the June 1975 hearing, most of the employees reported about, as well as those who reported them, were still employed by Respondents. On one occasion, Kerman asked Mrs. Goerke to go to a near- by Burger King restaurant to see which employees were talking during their lunch break to a union representative identifiable by a New York license, plate number which Kerman gave her. She did so, and reported her observa- tions to Kerman. Thereafter, Kerman and Powers asked Mrs. Green, who was then a nurses aide, to go to the Burg- er Chef and to report back to them if she was approached there by a union man.' B. Respondents' Alleged 8(a)(1) Violations During District 1199s Campaign Although the Teamsters lost the August 1974 election, some of Respondents' employees thereafter engaged in dis- cussions about union organization. In December 1974, Mrs. Goerke reported this activity to Respondent Feigen- baum, who said, ". . . don't worry, a union can't touch us for a year." 9 In early January 1975,10 employee Charlene Goerke (Mrs. Goerke's daughter) telephoned District 1199 and asked it to send a representative to organize the Home. During the next few weeks, District 1199 held several meet- ings for Respondents' employees, some of whom also dis- cussed District 1199 among themselves and circulated and signed authorization cards. In early January 1975, Chef Rasheed Barata, who Ker- man testified is a supervisor, told Mrs. Goerke that "the bosses want[ed] to fire" a kitchen employee, identified in the record merely as "Lora," and advised Mrs. Goerke to stay away from her because she had come in one evening asking what time a union meeting was to be held. About mid-January, Kerman called Mrs. Goerke to his office and asked what she had been talking to "Lora" about. Mrs. Goerke replied that "Lora" had been telling about a book she was writing and about her journal. Kerman asked what Mrs. Goerke had heard of union activity. Although Mrs. Goerke had heard her daughter Charlene and her friends talking 'about the Union on the telephone, Mrs. Goerke replied that she knew nothing about it.ll During break time shortly before January 24, the date of the first union meeting, employees Charlene Goerke, Charles Caulfield, Karen Keiser, and Frank Mulvey gath- ered at a table in the staff dining room, which is about 10 S My findings in this paragraph are based on Mrs Green's testimony, which is uncontradicted, and on the testimony of Mrs. Goerke Feigenbaum was not asked about Mrs Goerke's activity except a request that Mrs Goerke observe union activity at a hamburger place; he denied making such a request, but she did not attribute such a request to him. For demeanor reasons, and in view of Kerman's unreliability in other respects (see infra), I discredit his denials of the first Burger King incident and of Mrs Goerke's rqorts to him. This finding is based on Mrs. Goerke's undemed testimony. 10 All dates hereafter are 1975 unless otherwise stated 11 My findings in this paragraph are based on Mrs Goerke's undenied testimony SUMMER HILL NURSING HOME 435 by 12 feet and is across a hail and about 20 feet from the office used by Kerman and Feigenbaum. The employees discussed arrangements for transportation of people who were going to the forthcoming union meeting. As the other employees were getting up from the table, Caulfield was called to the doorway by Supervisor McCraw, who had been standing at a vending machine immediately outside the dining room door. McCraw told Caulfield that he had a, very loud voice, that the A-wing kitchenette (where the employees sometimes took-their breaks) was right next to Kerman's office, that the walls were very thin and Caulfield's voice could travel through these walls, that "they" knew everything the employees were talking about, and that if Caulfield did not "watch" himself he was going to get himself and other people were going to get them- selves into "trouble with this union talk." Caulfield replied that anything he said privately he was not afraid to say openly. McCraw thereupon laughed, and Caulfield left the room.12 About this same time, Supervisor McCraw met employee Mulvey on the stairs and, according to Mulvey's undenied and credible testimony, "just casually asked me if I had heard anything about the Union." Mulvey replied that he had not. The record fails to show whether this was true.13 A few days after the January 24 union meeting, employ- ee Pat O'Brien told Supervisor McCraw, in the presence of employee Florence Fredericks, that Mrs. Fredericks had asked O'Brien, "in case that we were able to get a union into the nursing home at some future date, would he be willing to go along with it," and that he was disturbed about this.14 Mrs. Fredericks admitted that she had made such a statement to O'Brien, whereupon McCraw stated that "he didn't want to hear of anything about a union, or know of any papers or flyers or cards being passed around the nursing home -as it would mean immediately dismissal for anybody that was found with it." Mrs. Fredericks told McCraw that she knew nothing about O'Brien's further complaint to him that somebody -wanted to take O'Brien's job away, considered him an old man, and "mocked him out" because he came to work, on a bicycle. During a coffeebreak later that day, Mrs. Fredericks embraced a fel- low employee and told her that O'Brien had "squealed" to McCraw about Mrs. Fredericks' asking O'Brien about a union. Upon seeing this, McCraw nodded, sipped at his 12 My findings in this paragraph are based on the mutually corroborative testimony of the four employees present: McCraw testified that he told Caulfield that he could be heard in the office used by Kerman and Feigen- baum, and should lower his voice somewhat . However, McCraw admitted that Caulfield replied (as the employees testified), "Whatever I have got to say I am happy to say this public or in front of anyone," a remark which is fully responsive to McCraw's remarks as testified to by the employees but, as McCraw himself testified, would be a "strange response" to his com- ments as testified to by him. Moreover, McCraw partly explained his al- leged request that Caulfield lower his voice by expressing a somewhat irrele- vant concern that employees were overstaying their break Because of such incongruities in McCraw's testimony and after considering the witnesses' demeanor, I credit the employees' version of this incident, and believe Mc- Craw's only to the extent consistent with theirs 13 Mulvey was not sure whether this conversation, which McCraw was not asked about, occurred before or after McCraw's conversation with Caulfield in the staff dining room 14 My finding in this sentence is based on the mutually corroborative testimony of McCraw (whom I credit to this extent) and Mrs Fredericks coffee, and said, "... he knew who the instigators were." 15 Between the January 24 and the January 31 Union meet- ings, supervisor McCraw met employee Barry Fredericks (employee Florence Fredericks' son) in the hallway. 'Mc- Craw stopped him and asked whether he knew- anything about the union meeting. Barry Fredericks replied that he did not.16 McCraw then said that "he dust got done talking to [Barry Fredericks'] mom, and that if he finds out who's starting it up, . . . there's going to be a dismissal." Barry Fredericks then said he knew nothing about a Union.17 Thereafter, the employees discussed among themselves McCraw's dismissal threat for union activity and the fact that he had spoken to the Frederickses about union activi- ty. C. The Alleged Discrimination Against Employee Charlene Goerke 1. Background Charlene Goerke was hired by Respondents in October 1972, about a month after the Home opened its doors, and was continuously employed by Respondents until her Feb- ruary 1975 discharge. She worked as a kitchen aide until Janauary 1974, when, at her request, she was assigned to work as a nurses aide, the job she held for the rest of her employment. In June 1974, Miss Goerke received an "Employee Ser- vice Evaluation" which rated her as above average in each of the 22 applicable categories 18 and contained a "Supervisor's Comment," "Good aide. However, at times is gruff and profane. Her attitude toward some [patients] may be due to misunderstanding of condition . Attitude seems to have changed in last month." I infer from the 15 My findings in the last four sentences are based almost entirely on Mrs. Fredericks' credited testimony Her testimony about the coffee break inci- dent is undenied. After credibly testifying that O'Brien had complained about being "disturbed" by Mrs. Fredericks' efforts to discuss the Union, McCraw initially testified that she never said anything to him about the Union McCraw then testified that O'Brien had alleged that Mrs. Fredericks had threatened him with being run off the road if he did not loin the Union, that Mrs Fredericks had denied saying this , and that McCraw did not ask her what happened but merely said, " we cannot have this type of discord in the home. We can't have one employee threatening the other . We have to work together, we have got ajob to do . What you do away from the Home is your own business " McCraw testified that he did not report this incident to his superiors, and that Mrs Fredericks had been a good worker. Although still in Respondents ' employ, O'Brien was not called as a witness. In view of the witnesses' demeanor and the improbabilities in Mc- Craw's testimony, I credit Mrs Fredericks 16 The record contains no direct evidence about whether this was true. Because Barry Fredericks' mother signed a union card , attended a union meeting, had been campaigning for the Union, and lived in the same apart- ment complex, if not the same apartment , as her sons, I infer that he did in fact know about the meeting. 17 My findings in this paragraph are based on the testimony of Barry Fredericks, whom I regard as a wholly honest witness McCraw, whom I regard as unreliable (supra, fns. 13 and 16), admitted having a conversation with Barry Fredericks about his mother, but testified that this was about a personal problem related to Barry Fredericks rather than a union problem or one related to his mother McCraw denied having told Barry Fredericks that "he would be dismissed," a statement which he never attributed to McCraw. 18 Employees were rated t through 4, 4 being the highest rating. Miss Goerke was rated 3 in 21 categories and 4 in "Appearance." 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incident on, which this comment was based that it meant her attitude had changed for the better.19 Miss Goerke add- ed to the form the comment, "I agree." Aside from this report (which was made by then supervisor of nursing, Powers, a family friend, supra fn. 8), it is undenied that during the entire period of her employment, she was never criticized for her work or its quality and never received any warnings. In late fall 1974, she was sent to assist Kerman's aunt (a patient at the Home) at a hospital. After visiting his aunt at the hospital while Miss Goerke was looking after her, he told Mrs. Goerke that her daughter "had made a fine job, she made a fine appearance." Effective January 13, 1975, after Powers had left and 6 weeks before Miss Goerke's discharge, her hourly rate was increased from about $2.32 an hour to about $2.49 an hour. There is no evidence that any other employees received wage increases at this time. 2. The alleged discriminatory cut in Charlene Goerke's hours During the last week or two of the Teamsters campaign which terminated with the August 1974 election, Miss Goerke urged a number of her fellow employees to vote "Yes." On the last day of the campaign, she prominently wore on her uniform at the Home a 3-inch Teamsters but- ton in "Da-Glo" colors: This button was admittedly ob- served by Kerman, and it is undenied that Feigenbaum saw it as well. In late August or early September 1974, Kerman asked Miss Goerke whether she had voted for the Teamsters, and she replied that she had 20 About late De- cember 1974, Mrs. Goerke commented to Kerman that she, her daughter, and her son Lawrence (also in Respon- dents' employ) were "Summer Hill's most loyal employ- ees." Kerman replied, "Yes, Charlene is really loyal. She stabs us in the back." 21 - As previously noted, it was Charlene Goerke who tele- phoned District 1199 in early January 1975 to send down an organizer. Miss Goerke told all of her fellow employees about the first meeting on January 24; attended that meet- ing and a subsequent meeting on January 31; asked the organizer the questions that all the employees had; and got cards and literature to hand out to people. She later distrib- uted cards to between 10 and 20 of her fellow employees in the Home during breaks. a. Background Between her October 1972 hire and June 1974, by which latter date Charlene Goerke was a nurses aide, she attend- ed high school and worked part time. When she worked as a kitchen aide, she had no difficulty in obtaining from Su- 19 The comment on the form was based on an incident where the floor was understaffed and, after a "very nice" but "very picky" patient rejected a series of lunch trays brought to her room by Miss Goerke, she said in an admittedly "harsh" manner, "I'm not going back to that kitchen again, I'm sorry . . . . You'll have to eat this." Miss Goerke later apologized to the patient, and testified, "... now we're the best of friends again." 20 This finding is based on the testimony of Charlene and Phyllis Goerke On the basis of the ,witnesses' demeanor, I do not credit Kerman's denial 21 This finding is based on Mrs Goerke's testimony. Kerman did not deny then making this remark, although he did deny the use of like language when Miss Goerke was discharged in February 1975. pervisor McCraw a work schedule which permitted her to attend school and engage in after-school activities. When she became a nurses' aide in January 1974, she worked weekends until her June 1974 graduation. At this time, she requested and received full-time employment as a nurses aide. In the fall of 1974, Miss Goerke registered for day classes at college. The day after her registration, she told then Director of Nursing Powers what days she would be going to school, and he let her work on her days off from school. Between September 15, 1974, and January 16, 1975, Miss Goerke worked on the 7 a.m. to 3 p.m. shift at least 3 days each week, and occasionally 4. More specifically, she regularly worked this shift on Sundays, Mondays, and ro- tating Thursdays and Saturdays. b. Miss Goerke's request for more hours during her semester break Miss Goerke was on semester break between January 15 and 29. On January 21 (infra, fn. 24), she asked Theresa Howley, who was the secretary to the nursing director, for more hours during the semester break. After checking with Feigenbaum, Mrs. Howley said that she could work be- tween 7 p.m. and 9 p.m. Miss Goerke said that she pre- ferred to work from 7 a.m. to 3 p.m., her regular hours on the days that she worked, but that she would "try" the 7 p.m. to 9 p.m. schedule. Mrs. Howley said that she did not know if Miss Goerke would be needed from 7 a.m. to 3 p.m. any more "because she just didn't have enough room, they had enough full timers." 22 Miss Goerke worked from 7 p.m. to 9 p.m. on January 22 and 23 in addition to work- ing on other days the three 7-to-3 shifts called for by her existing schedule. 23 Later that week, Miss Goerke asked Barbara Friedman, the then acting director of nursing, for more hours. Mrs. Friedman said that she did not know, she would have to see, she did not need part timers on the 7 a.m. to 3 p.m. shift, she had enough full timers . Miss Goerke said that 7 p.m. to 9 p.m. was very inconvenient, and could Mrs. Friedman possibly make it 3 to 9 or 3 to 11 or something like that. Mrs. Friedman thereupon scheduled Miss Goerke to work, and she did work, between 3 p.m. and 9 p.m. from Monday, January 27, through Friday, January 31, inclusive (a total of 30 hours) rather than the two 7 a.m.-3 p.m. shifts (totaling 16 hours) on Monday, January 27, and Thursday, January 30, called for by the schedule previous- ly drawn up.24 Mrs. Goerke repeatedly protested her daughter's evening hours to Mrs. Howley, who referred her to Kerman, who said, "I'll see." 22 This finding is based on Miss Goerke's testimony On the basis of the witnesses' demeanor, I do not credit Mrs. Howley's denial 23 Miss Goerke testified that her conversation with Mrs Howley occurred about January 20. My finding that it occurred on January 21 is based on Miss Goerke's testimony, to some extent corroborated by Mrs. Howley, that the conversation took place the same week Miss Goerke worked 2 subse- quent days between 7 p.m. and 9 p.m. (which dates are fixed by Respon- dents' records as January 22 and 23) and on Miss Goerke's further testimo- ny that the conversation took place on a day when she was not regularly scheduled to work, the first such day that week was January 21. 1 believe Mrs Howley was mistaken in testifying that the conversation occurred in early January. 2 These hourly totals include 45-minute unpaid lunch periods SUMMER HILL NURSING HOME 437 c. Miss Goerke's requests that her February schedule be withheld and changed In mid-January, in accordance with prior practice, a work schedule form for February 2 to March 1 was posted on the bulletin board, the only entries being the employees' names. Miss Goerke's name was listed. Prior practice called for each employee to enter his own suggested work- ing hours on the form, which was then returned to Mrs. Howley, who would make any revisions or additions to bring the schedule up to good nursing coverage. The Feb- ruary 2-March 1 schedule was returned to Mrs. Howley on January 22, containing hourly schedules for most of the employees but with no hourly schedule for Miss Goerke. Between January 22 and 24,25 Miss Goerke asked both Mrs. Howley and Mrs. Friedman to defer preparation of Miss Goerke's February 2-March 1 schedule until January 31, because she was going down on January 31 to register for day classes at college and did not yet know when she would be going to school and when she would be available for work. Mrs. Howley and Mrs. Friedman both responded that they would wait and she should come to them when she had her school schedule.26 Respondents had previously adjusted the work schedules of Miss Goerke and other em- ployees to their school schedules, sometimes on short no- tice, without suggesting to the employees that such adjust- ments were awkward to make.27 The schedule for February 2 to March 1, inclusive, was posted about January 29. It called for Miss Goerke to work from 7 a.m. to 3 p.m. every Sunday and every other Satur- day, but gave her no weekday work at all. This schedule for Miss Goerke had been drawn up at the instance of Re- spondent Feigenbaum. Miss Goerke did not see the sched- ule until January 30, at an hour when Mrs. Howley had already left for the day.28 On the following day, Miss Goerke went down to register at school but was unable to get any classes (see infra, fn. 31). On the way back from school, she and employee Lawrence Goerke (her brother) 25 My finding as to the date is based on Mrs Howley's testimony, which I credit to this extent. 26 My findings in the last two sentences are based on Miss Goerke's tes- timony. Although still in Respondents' employ, Mrs. Friedman was not called as a witness Because Miss Goerke's 2 years' experience at the Home must have given her some awareness of the Home 's scheduling problems, and in view of the witnesses' demeanor, I do not credit Mrs Howley's testimony that Miss Goerke asked her to defer issuance of the work sched- ule for the entire staff and that Mrs Howley neither refused (the natural response to any such request) nor agreed. Indeed, at certain points in her testimony Mrs. Howley virtually conceded the limited nature of Miss Goerke's request. 27 This finding is based on the undenied and credible testimony of Miss Goerke, orderly Caulfield, and porter Mulvey. In addition, Mrs Howley testified that during a period which included February 1975, part-time nurs- es aide, Gecek, was in school, available from 4 30 to I1 00, and came in when called. 28 This finding is based on Miss Goerke's credited testimony Miss Goerke was working from 3 p.m to 9 p in. that day, and Mrs Howley customarily leaves between 2 p m.and 5 p in , most often about 4 Mrs. Howley testified that on January 31 (infra, In 30), Miss Goerke came to her, waved her hand, and said in a direct, demanding, and hostile manner, "I told you not to make up that schedule," whereupon Mrs Howley referred her to Kerman Because of Mrs Howley's unreliability in other respects and the witnesses' demeanor, I do not believe Mrs. Howley's testimony in this respect. went to the Home to discuss their work schedules with management. Upon being advised that the Goerke siblings wanted to speak to Kerman or Mrs. Howley, Kerman stated that he would meet them in the office of the director of nursing, and called Feigenbaum to the meeting as well. Lawrence Goerke, an orderly who had been working the 1 I a.m. to 7 p.m. shift, said that he wanted to continue to work that shift, rather than the 3 p.m. to 11 p.m. shift called for by the posted February 2-March 1 schedule. Kerman refused. Miss Goerke asked that she be given weekday work on the 7 a.m to 3 p.m. shift, preferably 5 shifts a week but at least as often as she had worked previously-that is, Mondays and alternate Thursdays, as well as the weekend shifts she was already scheduled for z9 Kerman then called in Mrs. Howley and told her to bring the schedule. He asked whether there was any time off on the nursing schedule, and she said there was not. Miss Goerke said that she was supposed to register in school and to take 12 credits and she was not able to get them, her father was going to cut off her support, and she needed employment. She said, . . please ... I thought that you could possibly work me into the schedule." Kerman said that there were open- ings on three Thursdays from 3 p.m. to II p.m. Miss Goerke said that she could not take them because she was planning to take Thursday night courses later in the semes- ter;30 that Thursday nights were inconvenient; and that she thought it unfair that she should be asked to work them, because she "had been there longer than anybody" and the other part-timers on her 7-3 shift had not had their hours cut, although their days might have been switched.31 Miss 29 This finding is based on Miss Goerke 's testimony In view of the evi- dence that she badly needed work (much of such evidence proceeding from Respondents' witnesses), the testimony by all witnesses that later during the same interview she was offered work on Thursday evenings, and the wit- nesses' demeanor, I do not believe the testimony of Kerman or Feigenbaum, to some extent corroborated by Mrs . Howley; that Miss Goerke said she wanted full-time 7-to-3 employment and would.accept nothing less. For like reasons, I discredit Kerman's and Feigenbaum's testimony that the Goerke siblings did not come in to seek changes in their February 2-March I work schedules until the first week in February, after such schedules became effective, and Mrs. Howley's testimony that they did not come in until towards the middle of February Rather, I credit Miss Goerke's testimony that she and her brother came in on January 31 , the day after she saw her posted schedule. 70 She had been unable to obtain day classes at the January 31 registra- tion because part-time students like her have the last selection and when her turn came, all the classes were filled She hoped to and in fact did later register for some Thursday evening " mini-courses," which start after the regular semester begins but thereafter meet for more hours than the courses with an earlier starting date My finding about her reference to her school plans is based on the proba- bilities of the situation, Miss Goerke's testimony, and employee Caulfield's testimony, admitted without objection , that Miss Goerke had learned from the posted college schedule that the course she needed would be on the night she was offered work While Miss Goerke did not in terms testify that she described this square conflict, I think it likely that she made this prob- lem clear. On the basis of the witnesses' demeanor and the probabilities of the situation , I do not credit Kerman's denial, corroborated by Mrs. How- ley, that Miss Goerke explained that she planned to take a night course later that semester. While this class did not start until after the close of the period covered by the February 2-Marsh I schedule, I conclude that Miss Goerke, whose prior schedule had been substantially the same between September 1974 and January 1975, anticipated that her new hours reflected in the February schedule would likewise continue over a period of months. 31 This finding is based on Miss Goerke 's testimony, the seniority refer- Continued 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goerke further said that the Goerkes had "done [Respon- dents] enough favors." Kerman admitted the Goerkes' prior favors 32 and the treatment accorded junior part-tim- ers,33 but said that he could not just shift the schedule around for the Goerke siblings, and that too many mem- bers of the Goerke family were working there. The Goerke siblings said that "other people who have members of the family are all working together." 34 Kerman "just passed over that." Kerman, proposed that the Goerke siblings go to work at one of the other nursing homes in the area,35 but Miss Goerke replied that she did not want to work any- where else.36 Miss Goerke began to cry, and the men pre- sent tried to soothe her. Kerman said that Miss Goerke would be given "on call" status. My findings in the foregoing paragraph are based on a composite of Miss Goerke's testimony and credited por- tions of the testimony of Feigenbaum, Kerman, and Mrs. Howley. I believe that Miss Goerke gave a truthful account of the conversation, but I also believe that certain addition- al remarks were made to which her testimony does not refer. Miss Goerke's testimony that her brother had there- tofore been working from 11 a.m. to 7 p.m., and wanted to continue those hours rather than the 3 p.m. to 11 p.m. hours called for by the recently posted schedule, is corrob- orated by Respondents' September 1974-March 1975 work schedules for the 7 a.m. to 3 p.m. shift, which schedules fail to list Lawrence Goerke, as well as Mrs. Goerke's uncon- tradicted and credited testimony about Kerman's January announcement of the change and Lawrence Goerke's even- tual transfer to the 7-to-3 shift at the insistance of Director of Nursing Sheppard. Accordingly, I do not credit the testi- mony by Kerman and to some extent Feigenbaum that before meeting with Miss Goerke, they met with Lawrence Goerke to discuss a request from him for a change to the 7 a.m.-3 p.m. shift, that he was then promised the first open- ing on that shift, and that he was present during management's subsequent meetings with his sister because Kerman called him in. For similar reasons, I do not credit ence being corroborated by Mrs. Howley On the basis of the probabilities of the situation and the witnesses' demeanor, I do not believe Feigenbaum's or Kerman's testimony that her seniority was not mentioned. 32 Miss Goerke had never refused any requests by Respondent to perform any kind of work, and at Respondents' request had sometimes worked 7 consecutive days. See also, supra, fn. 8 33 Nurses aide Olin was scheduled to work three 4-day weeks and one 2-day week in January, and three 4-day weeks and one 3-day week in Feb- ruary, all on the 7-to-3 shift. Of the 15 days she was scheduled to work in February, 11 were weekdays Nurses aide Marie Cramer was scheduled to work alternating 5-day and 3-day weeks on the 7-to-3 shift throughout both January and February Of the 16 days she was scheduled to work in Febru- ary, 12 were weekdays In view of this evidence from Respondents' records and the probabilities of the situation, I do not believe Kerman's denial of Miss Goerke's credited testimony that she referred to the fact that other part-timers retained their 7-to-3 hours. 34 Several members of Chef Rasheed Barata's family were working under him in the kitchen. Florence Fredericks was then employed in housekeeping and her son Barry as a porter 35 This finding is based on Miss Goerke's testimony. Kerman and Feigen- baum both testified that in Mrs. Howley's presence, Kerman offered to try to get Miss Goerke part time work elsewhere. Mrs Howley denied that Kerman said Miss Goerke could get employment elsewhere and named two other nursing homes. On the basis of the witnesses' demeanor, I believe Miss Goerke. 36 The Goerke house was located near the Home. the related testimony by Feigenbaum and Mrs. Howley that after obtaining Lawrence Goerke's consent, Kerman told Miss Goerke that she would get the first 7-to-3 shift and her brother the second.37 d. Respondents' February manning practices Respondents ordinarily prefer to assign work to part- time employees rather than to full-time employees who would be paid time and a half therefor. After advising Miss Goerke that she had on-call status, and without calling her in, Respondents took the following steps to augment the number of nurses aides on duty: Full-time nurses aides Audrey Paskitti and Young Guz- inski were given extra hours. Miss Guzinski's scheduled Tuesday, February 11, shift was changed to Saturday, Feb- ruary 15, when Miss Goerke was not scheduled to work, and Miss Guzinski worked a double shift that day.38 Also, in the beginning or middle of February, full-time nurses aide Keiser was asked to work double shift. In early February, orderly Caulfield (see supra, In. 38), who worked full time on the 7 a.m. to 3 p.m. shift, was asked by part-time secretary Cindy Barth to work a second shift, from 3 p.m. to I I p.m., that same day. He refused. Later in February, Mrs. Howley asked Caulfield to come in the next day, his day off. Caulfield refused. Mrs. Howley observed that she did not know whom she was going to call. Caulfield said, " . . . Charlene's on call, I'm sure she would like to come in." Still later in February, Mrs. How- ley again asked Caulfield to come in on his day off. Caul- field said, "Charlene is on call, if you want somebody to work overtime, ask her." Mrs. Howley was pleased, and thanked him. After one of these two latter conversations with Caulfield, Mrs. Howley relayed Caulfield's suggestion 37 The same work is performed by nurses aides like Miss Goerke and by orderlies like-Lawrence Goerke, except that orderlies assist male patients only At the time of the June 1975 hearing, Lawrence Goerke, who took his sister to the Regional Office on the day she filed her charge, was employed by Respondents on an on-call basis. At a time not clear in the record, inferentially about early May 1975, he requested an employment schedule from Respondents adjusted to his forthcoming college schedule. In Decem- ber 1974, Lawrence Goerke had become engaged to be married to another employee at the Home, on January 31, Kerman remarked to the Goerke siblings that too many Goerkes were working at the Home, and proposed that the younger Goerkes go to work elsewhere; and during the investiga- tion of this case Mrs Goerke expressed fear that her support of her daughter's case would cause Mrs. Goerke to lose her job The hearing testi- mony disclosed that Lawrence Goerke had attended at least one union meeting Under all the circumstances, I draw no inference from his failure to testify on behalf of his sister's claim that she was deprived of work, and later discharged, because of her Union activity 38 Mrs. Goerke was the charge nurse in the B wing on the 7 a.m to 3 p in. shift, 5 days a week. The record fails to make clear the extent to which the extra hours worked by Paskitti and Guzinski, both of whom ordinarily worked in the B wing, were performed while Mrs. Ggerke was on duty. Kerman credibly testified that Respondents preferred to assign Miss Goerke to the A wing, because any patient who was dissatisfied with a nurses' aide would normally talk to the charge nurse and this exchange might be unsatis- factory if the charge nurse were the mother of the aide being complained about However, the nurses aides' work on both wings is exactly the same, and the temporary transfer of aides between wings is not uncommon. Ac- cordingly, the need for an aide on the B wing while Mrs Goerke was on duty could be easily satisfied by transferring an aide from the A wing and assigning Miss Goerke to the A wing. Indeed, this procedure was used on the single February occasion when Miss Goerke was called in SUMMER HILL NURSING HOME to Feigenbaum, who said, "Give the time to someone else in preference." 39 - On Thursday, February 6, Mrs. Howley called in full- time nurses aide, Holbrook, and asked her to work on the 7 a.m. to 3 p.m. shift on Friday, February 7. After being told that she would not have to work on Saturday, Febru- ary 8, when the posted schedule called for her to work, Mrs..Holbrook agreed to the change.40 Later, part time nurses aide, Gecek, who worked only when called in, was called in to work on the 3 p.m. to 11 p.m. shift on Thurs- day, February 13, and Friday, February 14.41 Between Miss Goerke's January 31 assignment to on-call status and February 19, Mrs. Goerke repeatedly asked Kerman why her daughter was not being called to work, but he gave her no explanation.42 Miss Goerke was not called to work during this period, and was not offered any more work than the posted schedule called for her to re- ceive. Nurses aide Keiser, a full-time employee who regu- larly worked on the A wing, credibly testified without con- tradiction that in February .1975 "we were short almost 39 My finding in this sentence is based on Mrs. Howley's testimony Feig- enbaum testified, inter alia, that he told Mrs. Howley that Miss Goerke had said she did not want to work any Thursday nights, while the dates of the shifts involved are not clear, they could not have been Thursday. shifts because Caulfield was scheduled to work every Thursday in February. Feig- enbaum further testified on direct examination that he told Mrs Howley that Miss Goerke did not want to work nights, but on cross-examination he merely testified that he "possibly" told this to Mrs Howley. At one point Kerman testified, in effect, and unlike Mrs. Howley and Feigenbaum, that it was Kerman who was consulted about Caulfield's suggestion, but Kerman thereafter testified that he did not know that Feigenbaum instructed Mrs Howley not to call Miss Goerke into work As to Mrs Howley's consulta- tion with Feigenbaum, she initially testified that she did not think that the 3 to 11-shift was involved, although-after being recalled to the stand 2 days later-she then testified that to the best of, her memory the 7 to 3 shift was not involved. In view of the witnesses' demeanor, and the foregoing incon- sistencies in Feigenbaum's and Kerman's testimony, I credit the testimony of Mrs Howley set forth in the text. 40 My findings as to the dates involved in this incident are based on the fact that February 7 was the only Friday in February which the posted schedule listed as Mrs. Holbrook's day off My finding that Mrs Holbrook was asked to work the 7 a.m to Yp in shift on Friday is based partly on Mrs. Howley's testimony (which I credit to this extent), and partly on Mrs Holbrook's remarks later that day to charge nurse Phyllis Goerke, who worked the 7 to 3 shift, that "she was stuck with me for another day " However, Mrs. Goerke worked in the other wing, and did not work on Fridays 41 In view of the foregoing uncontradicted evidence about Respondents' February manning techniques, I accord little significance to the testimony of Miss Seaman, the A wing charge nurse on the 7 a in. to 3 p.m. shift, that during that month the 3 or 4 full-time nurses' aides on that wing achieved the assignments which they undertook to do under her direction. 42 This finding is based on Mrs. Goerke's testimony Kerman testified that the only time she brought up the matter prior to February 19 was an occasion early in February According to Kerman, Mrs Goerke came to his office and requested more work for her daughter, he referred to his prior offer of part-time employment on the 3 p in to 11 p in shift, and Mrs. Goerke said her daughter did not want that shift for dating reasons Mrs. Howley testified, without corroboration from Kerman, that in mid-Febru- ary Mrs. Goerke told Kerman in Mrs. Howley's presence that Miss Goerke had to have certain Saturdays free to go to auctions, and that work from 3 p.m. to I1 p in. was not acceptable because she needed certain nights free for dates On the basis of the witnesses' demeanor, Kerman's failure to corroborate Mrs. Howley, the fact that Miss Goerke was already off on alternate Saturdays, and the probabilities of the situation, I discredit the testimony previously summarized in this footnote Rather, I credit Mrs Goerke's testimony that she never told Kerman that her daughter did not want to work nights because she wanted to date, or on weekends because she wanted to go to auctions. 439 every day for a couple of weeks" and that charge nurse Langfeld commented "that we were always short." Mrs. Goerke credibly testified without contradiction that on a date not clear in the record, the A wing charge nurse (either Mrs. Langfeld or Judith Seaman) "was asking why Charlene couldn't work, that she could use her." 3. The alleged discriminatory discharge of Charlene Goerke a. Miss Goerke's interview with Mrs. Howley On Wednesday, February 19, Kerman asked full-time nurses aide, Paskitti, to work 6 days that week. Mrs. Goerke asked Kerman why he was asking Paskitti to work when Miss Goerke could come in. A little while later, Ker- man told Mrs. Goerke that her daughter could work the next day, Thursday, February 20. This was the first time she had been called to work as an "on-call" employee. When Miss Goerke came to work on February 20, she learned,for the first- time about Mrs. Holbrook's change from the-Saturday, February 8, day shift to the February 7 day shift 43 She asked Mr. Holbrook, "... why did they do that, I'm suppose[d] to be the person on call, why didn't they just call me instead of messing her schedule up?" Mrs. Holbrook said, "I don't know, go down and see Mrs. How- ley about it." Miss Goerke then went to Mrs. Howley and asked, " ... why wasn't I called in, I'm suppose[d] to be the person to call, why was [Emily Holbrooks] schedule switched around?" Mrs. Howley said that she was not making out the schedule any more, that Kerman was mak- ing it out. Miss Goerke laughed and said, "A lot of good that would do me." During this conversation, Miss Goerke spoke in about the same tone of voice she used in the hear- ing room-that is, about average for a woman, although Miss Goerke's voice has a somewhat carrying quality44 Mrs. Howley also spoke in her normal tone of voice, -which is rather soft but very audible45 Miss Goerke thereupon 43 This finding is based on Miss Goerke's testimony Mrs. Holbrook's testimony suggest that she related this incident to both Miss Goerke and Mrs Goerke at the Home on February 6. However, Miss Goerke was not working at the Home on February 6 Accordingly, and because Mrs Holbrook's testimony is wholly unspecific as to dates, I conclude that her conversation with Miss Goerke about this incident, and Mrs: Holbrook's conversation with Mrs. Goerke to the extent it spelled out the changes in Mrs. Holbrook's schedule, did not occur until February 20. This finding as to the date gains further support from the absence of evidence that Mrs. Goerke (who worked on a different wing than Mrs. Holbrook) drew management's attention to the matter, notwithstanding Respondents' con- cession that she was trying to get additional work for her daughter on the 7 a in. to 3 p in shift involved here 44 Miss Goerke credibly testified that she was "not really .. excited" at the time, "I was a little annoyed but it wasn't Mrs. Howley's fault." 45 My findings as to Miss Goerke's conversation with Mrs. Howley are based on Miss Goerke's testimony. Mrs. Howley testified that Miss Goerke said in a loud and angry voice, "You had no right to do that . . I'm to be called," and "really tongue-lash[ed]" her. Mrs Howley further testified that Miss Goerke then "calmed down and she started to walk away and then she turned back and, said, `I'm sorry.' " Mrs. Howley testified that Miss Goerke's tone of voice was such that she could have been, heard by, and thus disturbed, any patients who were congregating in the adjacent lobby, which is about 30 feet square. There are frequently patients sitting around in the lobby, although there is no specific evidence that any were there at the time. - As to the substance of Miss Goerke's complaint, Mrs. Hawley testified Continued 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tried to speak to Kerman or Feigenbaum. When told they were not in, she told the secretary at the front desk, "I'll be in to see them tomorrow," and left. Thereafter, Mrs. Howley reported her conversation with Miss Goerke to Acting Director of Nursing Friedman, who reported it to management in the morning of February 21. Although still in Respondents' employ at the time of the hearing, Mrs. Friedman did not testify; and the record contains no credible testimony about what was said during either of these conversations46 Feigenbaum thereupon telephoned the Goerke home. It was Mrs. Goerke's day off, and she answered the telephone. Mrs. Goerke told Feigen- baum that her daughter was asleep, and Feigenbaum left word for her to please come down to the office. 47 b. Miss Goerke's discharge (1) The warning slips It is undisputed that during Miss Goerke's February 21 interview, during which she was discharged according to the testimony of all witnesses who were present , Feigen- baum prepared two "warning slips" -directed to her. Miss Goerke, Feigenbaum, and Kerman all testified that the slip first issued to her was the slip which, at least in its final form, contained an entry by Feigenbaum in the appropri- ate space, "Insubordination"; another entry by Feigen- baum in the appropriate space, "She entered the business office and was very hostile, demanding, insolent, and offi- cious towards Mrs. Howley. Witnessed by Mrs. D. Moy- lan";48 and an arbitrarily located entry hand printed and twice underlined by Feigenbaum, "Fired." All parties agreed to the receipt of General Counsel's Exhibit 13B, which Respondents' counsel conceded was the top copy of that Miss Goerke complained about Mrs. Howley's "arranging for a nurse's aide the next day or actually a nurse's aide to cover the next day's opening by changing her Saturday off and she was put on the schedule for that Friday" (emphasis supplied). The February schedule, together with other relevant testimony of Mrs. Howley, Mrs Holbrook, and Miss Goerke, establishes that this reassignment incident had already occurred almost 2 weeks earlier, on February 6-8. In view of this evidence and the witnesses' demeanor, I credit Miss Goerke. In any event, for the reasons stated infra, the result herein would be the same accepting Mrs Howley's version. 46 Kerman and Feigenbaum testified that Feigenbaum found out about the incident from Mrs Friedman, and that Kerman found out about it from Feigenbaum . Mrs. Howley testified that she reported "this incident" to Mrs Friedman, who reported it to Kerman, who told Mrs. Howley to write it up Although testifying that he asked Mrs Howley about the incident, Kerman did not relate what she said or corroborate her testimony about his request for a memorandum , and no such memorandum was offered into evidence I do not credit Feigenbaum's account of Mrs. Friedman's alleged report to him, which account substantially conforms to Mrs Howley's discredited version of the incident (supra, fn. 46). 47 These events occurred on a Friday Feigenbaum testified, in effect, that he asked Miss Goerke to come in because he is not at the Home on Satur- days and Sundays, the only days then being regularly worked by Miss Goerke. The record fails to show whether he ever received Miss Goerke's message, left the previous day with the front desk secretary, that Miss Goerke was already planning to come in that Friday to see Feigenbaum and Kerman. 48 Mrs. Moylan was at that time Respondent's switchboard operator. She was no longer in Respondent's employ at the time of the hearing, and Re- spondents were unsuccessful in a number of efforts , within the month be- fore the hearing, to get in touch with her. I draw no inference from her failure to testify this slip and was the copy retained by Respondents, and also to the receipt of General Counsel's Exhibit 5B, which Miss Goerke testified was a Xerox copy of the face of the carbon copy of the slip 49 General Counsel's Exhibit 5B is identical to the face of General Counsel's Exhibit 13B. The back of General Counsel's Exhibit 13B contains the entry, which undeniedly was written by Miss Goerke, "I do not agree to this. Charlene Goerke." No party sought to put in evidence the back of the document from which General Counsel's Exhibit 5B was Xeroxed. The punted line on the face of both these exhibits, after the word "Signature," is blank. Miss Goerke, Feigenbaum, and Kerman all testified that the second slip issued to her was the slip containing an entry by Feigenbaum in the appropriate space, "Insubordi- nation"; and another entry by Feigenbaum in the appro- pnate space, "Opened her mouth to administration with a threat." All parties agreed to the receipt of General Counsel's Exhibit 13A, which Respondents' counsel con- ceded was the top copy of the slip and was the copy re- tained by Respondents. General Counsel's Exhibit 13A contains on its face the following entry by Miss Goerke in the space for "Signature," "I do not agree to this either. C.A. Goerke," and contains no entry on the back. All par- ties also agreed to the receipt of General Counsel's Exhibit 5A, which is a Xerox copy of the face of the carbon copy of the second slip (supra, fn. 50). General Counsel's Exhibit 5A does not contain the entry written by Miss Goerke, but is otherwise a complete copy of General Counsel's Exhibit 13A. Miss Goerke's version of the discharge interview con- flicts in material respects with the versions given by Ker- man and Feigenbaum. Her testimony is in no way incon- sistent with the physical characteristics of General Counsel's Exhibits 5 and 13. On the other hand, Kerman's and Feigenbaum's testimony is difficult if not impossible to reconcile with such characteristics. For this reason, be- cause of the witnesses' demeanor, and in view of the addi- tional considerations summarized infra, section, II, C, 3b (3), I credit Miss Goerke's version. In section II, C, 3b (2) infra, I set forth my findings about what happened, which findings are based on Miss Goerke's testimony and, to some extent, on the physical characteristics of these exhib- its. (2) Findings of what happened during Miss Goerke's discharge interview After waking up, Miss Goerke went over to the Home shortly after 11 a.m. on February 21 and asked the secre- tary at the front desk to let Feigenbaum know she was there. The secretary did so. After waiting for 30 to 45 min- utes and seeing Feigenbaum walk all over the hall, Miss Goerke asked the secretary to tell him that Miss Goerke had an appointment that afternoon. Upon receiving this message, Feigenbaum came out and said, in a very angry tone of voice, ". . . if you can't wait for me, then I don't 49 As noted infra, the witnesses are in dispute about how she obtained carbon copies of the warning slips . However, Respondents have never con- tested that she did in fact obtain such copies, or that General Counsel's Exhibits 5A and 5B are, as she testified, Xerox copies of such carbons. SUMMER HILL NURSING HOME want to see you, so just leave." Thereafter Miss Goerke sat in the reception room a while longer.50 Eventually, Miss Goerke was called into the office where Feigenbaum was sitting alone. As soon as she walked in the door, Feigenbaum shouted at her, ". . . get over here, young lady, sit down, we're sick and tired of your com- plaining ... who do you think you are, being nasty to Mrs. Howley?" Miss Goerke replied, "I wasn't nasty to Mrs. Howley, I didn't say anything nasty to her." He con- tinued to shout and yell. While filling out an "employee warning notice" form (with a carbon copy) he told her she was fired. Miss Goerke asked, "... why am I fired, I didn't do anything." He separated the top copy and the carbon copy of the warning slips, gave her the top copy, and asked her to sign it. When she received the slip, it stated, "Fired . . . Insubordination . . . She entered the business office and was very hostile, demanding, insolent, and officious toward Mrs. Howley." Miss Goerke said, "... how can I be insubordinate to Mrs. Howley, she's not a superior to me?" Miss Goerke wrote her name on the back of the top copy of the warning slip, together with the comment, "I do not agree to this," and returned it to Feig- enbaum, who still had the carbon copy. Feigenbaum then yelled at her, ". . . who [do you] think [you are] to write a comment?" 51 At some point during the foregoing ex- change, Kerman walked into the office with his lunch and sat down. Miss Goerke said, "I thought you needed two warning slips to fire somebody." Feigenbaum started yelling at, her for saying that. He shouted that he had "bent over back- wards for [her], to give [her] hours." Miss Goerke denied this, and he continued to yell. She said, ". . . look, I don't have to take your abuse, I'm already fired, so I'm going to leave." She got up to leave and said, "You can't fire me for this flimsy excuse. It's just no reason to fire somebody .. . We'll see what becomes of this." Before she reached the door, Feigenbaum and Kerman were at the door knob. One of them had his hand on the knob, and they were shouting, ". . . who [do you] think [you are] to make the threat to administration?" She said, "I didn't make a threat ... We'll see what's going to become of this." They shout- ed who did she think she was, she "stabbed them in the back." She asked what they meant by that, and they kept shouting. She was trying to get out,52 had become "hysteri- cal," and did not know what to do. During this exchange, Feigenbaum raised his hand, and Kerman jumped in front of him. They led her back to the seat and said she was going to get another warning slip. She asked, "How can you give me so My findings in this paragraph are based on Miss Goerke 's testimony. Feigenbaum's testimony suggests that she was called into the office in a routine fashion as soon as she announced her presence to the switchboard operator. Kerman testified that he was in the office when Miss Goerke entered it but, when asked whether she was kept waiting for 40 minutes before being asked to come in, he replied , "It is possible but I do not recall I don't know of it. I can't answer to that " On the basis of the witnesses' demeanor and Feigenbaum's unreliability in other respects (infra, sec. II, C, 3, b, (3) ), I credit Miss Goerke. 51 The previous summer, then Director of Nursing Powers had told the employees that if they received a warning slip, they had to sign it but were allowed to write a comment. 52 The office is kept locked, the lock being controlled by a buzzer system. 441 a warning slip, I'm already fired?" Feigenbaum prepared a second warning slip, also with a carbon copy, which stated, "Insubordination ... Opened her mouth to administra- tion with a threat." He separated the pages, kept the car- bon copy, gave her the top copy, and told her to sign it. She wrote on the face of the top copy, "I do not agree with this either," signed her name after this comment, and returned the top copy to Feigenbaum. While she was writing on this slip, Kerman and Feigenbaum shouted who did she think she was to make a comment, that she was a "spoiled brat" and a "rotten kid," that they were going to call her mother, and that they were going to have her thrown out of school. Feigenbaum started to telephone Mrs. Goerke, and Miss Goerke left the office, leaving behind her both copies of both warning slips. After leaving the office, Miss Goerke told the secretary at the front desk that Miss Goerke wanted copies of the warning slips. The secretary buzzed her in, and she slipped back into the office, took the carbon copies, and got out 53 Feigenbaum was then talking to Mrs. Goerke on the tele- phone. The substance of this call is summarized infra. (3) Kerman's and Feigenbaum's discredited versions of the discharge interview Both Kerman and Feigenbaum testified that Feigen- baum reproved Miss Goerke for allegedly being loudly dis- courteous to Mrs. Howley, that Miss Goerke denied that such an incident occurred, and that Feigenbaum then wrote up the warning slip (G. C. Exhs. 5B and 13B) relat- ing this alleged incident but without the entry "Fired." Kerman then went on to testify that Feigenbaum "handed Miss Goerke the warning slip for her to sign. She signed it. He separated them and gave her her copy"; and subse- quently testified that Feigenbaum "wrote out the words and she signed it and he ripped off the carbon copy, gave it to her and kept his copy." Kerman did not relate the proce- dure Miss Goerke used for signing the back of the top copy, as General Counsel's Exhibit 13B shows she did, be- fore the top copy was separated from the carbon copy. 54 Kerman and Feigenbaum further testified that after Miss Goerke received her copy of the above-described warning slip, and as she was getting up to leave, she angrily told Feigenbaum, "You son of a bitch, you are going to get it for this!" 55 and told Kerman, "That goes for you too!" After so testifying, Kerman went on to testify that Feigen- 53 Respondents' brief comes close to admitting that Miss Goerke acquired the carbon copies in this fashion (contrary to the testimony of both Kerman and Feigenbaum), but contends that the manner in which she acquired them reflects on her character However , the warning form contains the printed instructions, "Prepare in duplicate. Place copy in employee's record file," the secretary buzzed her into the office with knowledge that her pur- pose was to obtain these documents, and she removed them in the presence of both Kerman and Feigenbaum, neither of whom (so far as the record shows) objected . I infer that employees were routinely considered as entitled to carbon copies of their warning slips, and that Respondents' initial reten- tion of such carbons was a departure from the usual procedure. Indeed, Kerman and Feigenbaum both testified that Feigenbaum gave her such carbons during the discharge interview 54 Feigenbaum merely testified, "I wrote up the warning slip. I gave it to Charlene and asked her to sign it. She signed the warning slip." 55 Both Feigenbaum and Kerman agreed on the obscenity , but Kerman's direct examination version of her subsequent comment was, "... you are Con tin ued 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD baum then told her she was terminated, and then wrote out "in duplicate" another warning slip "stating the threat that she made to us," and that, "She signed it, [and he] gave her her copy." Kerman did not explain why Miss Goerke's sig- nature appears on the face of the top copy (G. C. Exh. 13A) but not on the carbon copy of this second warning slip (G. C. Exh. 5A).56 Kerman went on to testify, on direct examination, that Miss Goerke "had both carbon copies of her warning slips in her hand and looked at them and says, `Does this mean I'm fired?"' Kerman then testified that Feigenbaum re- plied yes, that she thereupon gave "one of the carbon cop- ies" to Feigenbaum and said, "Put the word `fired' on it," that Feigenbaum "took the one she gave him, put it with his and wrote `fired' on it and then she left." On cross- examination, Kerman similarly testified that Miss Goerke "gave [Feigenbaum] back the copy of the warning slip and said, `Put on it this' and he took it and put [it] with his original and wrote the word `Fired' on it and she proceed- ed to leave." Thereafter, Kerman was asked what "that" warning slip said, and he replied, "I think it mentioned something about threats to administration." Later, the General Counsel asked Kerman, "[Feigenbaum] wrote the `Fired' on the second warning slip; is that correct, the one where he just fired her?" Kerman replied that Miss Goerke had both carbon copies in her hand, that she handed Feig- enbaum "one of the slips which she received," and that he "put it with his warning slip, wrote the word `Fired' as she had requested, and handed it back." As previously noted, the word "Fired" is written on both copies of the first warning slip (describing the alleged Howley incident) and on neither copy of the second (purportedly describing the alleged incident which Respondents contend motivated her discharge). Feigenbaum was not asked on direct examina- tion why he put the word "Fired" on the first warning slip rather than the second, nor did he give any specific expla- nation on direct examination for why that word appears on both the top copy and the carbon.57 On cross-examination he testified, "She gave me one of the warning slips. I just put it in duplicate and I gave it to her and that was it. I wasn't looking to see which one it was marked down on." I do not credit Kerman's and Feigenbaum's testimony about what happened during the February 21 termination interview. Their testimony is difficult if not impossible to reconcile with the physical appearance of the warning slips. Moreover, I regard as rather improbable Feigenbaum's and Kerman's explanation of why Feigenbaum wrote the word "Fired" on the first warning slip (issued simulta- neously with Miss Goerke's discharge, according to her credited testimony) rather than on the second warning slip going to feel sorry for this." On cross-examination, he gave Feigenbaum 's version, set forth in the text. 56 On cross-examination, Feigenbaum testified that he could not remem- ber whether Miss Goerke wrote anything on this second warning slip 57 He testified as follows. I told her she was terminated I gave her another warning slip I asked her to sign it. She signed it and at that point she said , "Does that mean I'm fired?" I, said, "Yes, that means you are fired " "Put it down on the paper " So I took back the warning slip, I marked down "fired" on it. I gave it back to her and I asked her please to leave [Emphasis supplied] (issued simultaneously with her discharge, according to Feigenbaum and Kerman). Feigenbaum and Kerman testi- fied, in effect, that Feigenbaum accepted a carbon copy from Miss Goerke, inserted carbon paper between that copy and the top copy, collated the three sheets, wrote on the top copy, reseparated the sheets, and returned the car- bon copy to Miss Goerke, all without noticing that he was inserting the entry on the wrong slip. Furthermore, a natu- ral reading of the second warning slip ("Opened her mouth to administration with a threat") does not encompass ob- scenities, yet both Kerman and Feigenbaum testified (and she denied) that she directed obscene language to both of them, and Feigenbaum testified that such language to a substantial extent motivated her discharge. Also, Miss Goerke's reaction (as testified to by Kerman and Feigen- baum) to Respondents' version of the first warning slip in its initial form seems improbably extreme, particularly with respect to Kerman who (according to Feigenbaum) had not said anything. In addition, although Feigenbaum testi- fied that during this interview he did not raise his voice and Kerman did not participate, and Kerman testified that nei- ther he nor Feigenbaum raised his voice and Miss Goerke's was the only loud voice in the office, employee Keiser credibly testified that she was outside the office -at that time with charge nurse Langfeld, ". . . we heard loud voices, yelling and Mrs. Langfeld said to me, `Did you hear all that yelling in there? Mr, Kerman and Mr. Feigenbaum must be fighting with each other.' And I said; `No, I don't think so, I think they are fighting with Charlene,' because she was in there." 58 For the foregoing reasons, and in view of the witnesses' demeanor, I credit Miss Goerke's version of the interview, including her denials that she used prof an- ity on this occasion, and discredit Feigenbaum's and Kerman's versions of this interview except where corrobo- rated by Miss Goerke. (4) Subsequent events Immediately after Miss Goerke left the office for the first time on February 21, -Feigenbaum called Mrs. Goerke's number at her home. She was already on the telephone talking to someone else, and the operator cut in with the statement that there- was an .emergency call. Mrs. Goerke hung up, and then received Feigenbaum's call. Feigen- baum told her that "he had fired Charlene because of her complaining, that she was a bad kid, that [Mrs. Goerke] ought to throw her out of the house . . . we bent over backwards to please her, and all she did was stab [us] in the back." Mrs. Goerke denied that her daughter had "stab- bed" him in the back. He replied, "That kid hates us," and Mrs. Goerke denied this.59 5s Mrs. Howley, whose desk is some distance from Kerman's and Feigenbaum's office, testified that she heard no loud voices emanating from that office that day However, Miss Goerke and Kerman both testified that loud voices were used, although they attributed the loud voices to each other. At the hearing, Kerman and Feigenbaum both testified more loudly than Miss Goerke and in voices which, for-men, were of normal loudness, pitch, and carrying quality 59 My findings in this paragraph are based on Mrs. Goerke's credited testimony. Feigenbaum initially replied "Yes" to the inquiry , "Before Miss Goerke did you make an attempt to make a phone call to anybody?" and stated that this call was to her mother. However, he later testified that he did SUMMER HILL NURSING HOME That same day, nurses aide Delores DeFilippo, in the presence of Acting Director of Nursing Friedman, asked Kerman and Feigenbaum why she-had not received a merit raise promised by former Director of Nursing Powers, Re- spondents replied that they were then giving only anniver- sary raises. Kerman asked whether she had been in Re- spondents' employ during the Teamsters election. When she replied no, Respondents said that there could never be a Union "in here" because they could not afford it 60 Between Mrs. Goerke's first employment by the Home in September 1972 and her daughter's February 21, 1975, discharge, Mrs. Goerke had been given one warning slip "a long time ago." Between her daughter's discharge and the June 1975 hearing, Kerman called Mrs. Goerke to the of- fice on three occasions with complaints about her work. On one of these occasions, he called Mrs. Goerke a liar. This accusation was disproved by Respondents-' records, but he never apologized therefor.61 Charge nurse Judith Seaman, a registered nurse, credibly testified without contradiction that within a week after Miss Goerke was discharged, acting director of nursing Friedman asked her and charge nurse Langfeld, also a reg- istered nurse, what kind of aide Miss Goerke was and whether she had been "fresh" to them. Still according to Miss Seaman's credited testimony, both nurses replied that Miss Goerke was a good aide and had not been "fresh" to them. At the hearing, Respondents' counsel moved to strike this testimony by Miss Seaman, which I received subject to a showing that Mrs. Friedman was then a super- visor. Respondents ordinarily have a director of nursing who can hire (with Feigenbaum's or Kerman's consent), fire, and discipline employees, who is responsible for directing the employees in the performance of their duties, who par- ticipates in discussions about which employees are to re- ceive raises, and who supervises the nurses. In the absence of Kerman and Feigenbaum (neither of whom usually works weekends) and bookkeeper Hirsch (who apparently does not usually work weekends either), the director of nursing is in charge of the entire operation. In January and February 1975, Respondents had no director of nursing, and Mrs. Friedman was the acting director of nursing. not call Mrs. Goerke until 15 or 20 minutes after Miss Goerke had left Feigenbaum was admittedly uncertain about what he said, but testified that he told Mrs Goerke that he daughter had "called [him] an SOB and she made a threat to us." He denied telling Mrs. Goerke that "We bent over backwards for-your daughter," and that she "stabbed us in the back " Both Feigenbaum and Kerman further testified that Feigenbaum reached Mrs. Goerke the first time he dialed, but Kerman was not asked about the con- tents of this conversation, except that on cross-examination he denied the "stab in the back" language. In view of the witnesses' demeanor, Kerman's failure to corroborate much of Feigenbaum's testimony, the inconsistencies in such testimony, and the consistency between Mrs Goerke's testimony about the telephone call and Miss Goerke's credited testimony about the discharge interview, I credit Mrs. Goerke. 60 My findings in this paragraph are based on Miss DeFilippo's undenied testimony. 61 My findings in this paragraph are based on Mrs. Goerke's testimony. Although Mrs. Goerke testified that Feigenbaum was present during the "liar", incident, and Kerman that Feigenbaum was present during an inci- dent involving her speech therapy notes, he was not asked about such mat- ters. In view of the witnesses' demeanor and Kerman's unreliability in other respects, I credit her testimony in this respect and discredit his where incon- sistent 443 Mrs. Howley credibly testified that when Friedman was acting director of nursing, she could not hire or fire, that she supervised the wings and took care of any nursing problems that came up, "but all of this was under Mr. Feigenbaum and Mr. Kerman," and that when an employ- ee who was scheduled to work called in sick, Mrs. Fried- man would call or arrange to call someone in 62 Charge nurse Seaman credibly testified that when Mrs. Friedman was acting director of nursing, "We went to her with our problems." Orderly Caulfield credibly testified that during this period, if he wanted to take a day off, he would ask Mrs. Friedman or Mrs. Howley. There is no direct evi- dence about who was in charge of the operation in January and February 1975 in the absence of Feigenbaum, Ker- man, and Hirsch. Feigenbaum testified that during this pe- nod he or Kerman made determinations with respect to hiring and firing, and that Mrs. Friedman "was basically there as a liaison between the administration and the nurs- ing staff, taking care of basically if they needed supplies ... she really had no powers without prior approval from the administration." Feigenbaum further testified that "possibly" Respondents gave her a raise when she became acting director and withdrew the raise when a new director was appointed. So far as the record shows, the director of nursing was the only supervisor of Respondents' approxi- mately 30 nurses, nurses aides, and orderlies other than Feigenbaum, Kerman, and bookkeeper Hirsch.63 About February 10, 1975, Mrs. Howley typed up a memorandum directing "R.N.'s, L.P.N.'s, Nurses' Aides and Orderlies" to fill in their respective March schedules by a given date. Mrs. Friedman signed this memorandum, which was post- ed at the Home, over the typewritten entry, "Barbara Friedman, R.N./Director of Nursing Service." I conclude that while Mrs. Friedman was acting director of nursing she had the authority, in Respondents' interest and in the exercise of independent judgment, to assign and responsi- bly to direct employees and, therefore, that during this pe- riod she was a supervisor within the meaning of Section 2(11) of the Act. Accordingly, Respondents' motion to strike Miss Seaman's testimony about Mrs. Friedman's conversations with her and Mrs. Langfeld is hereby denied. D. Analysis and Conclusions 1. The alleged Section 8(a)(1) violations I agree ,with the General Counsel's contention that Re- spondents violated Section 8(a)(1) of the Act when Ker- man asked Mrs. Goerke in January 1975 what she had heard of union activity and the subject matter of her con- versation with a suspected union adherent; when supervi- sor McCraw asked employee Mulvey if he had heard any- thing about a Union; when supervisor McCraw asked employee Florence Fredericks whether she had asked a fel- low employee 'to "go along with" a union, told her that 62 Miss Seaman testified that she presumed that when Mrs Friedman was the acting director, she had the same powers as the director. Because the- General Counsel failed to establish that Miss Seaman had a basis for her testimony that Mrs. Friedman could hire, fire, and discipline, I hereby grant Res3pondents' motion to strike such testimony. 6 There is no contention that charge nurses are supervisors 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those responsible for union activity, literature, or authori- zation cards would be dismissed, and said that he knew who the instigators were; when supervisor McCraw asked employee Barry Fredericks whether he knew anything about a union meeting and threatened to discharge who- ever was starting up the Union; and when supervisor Mc- Craw warned employee Caulfield, in other employees' hearing, that top management could overhear him and knew every thing the employees were talking about, and if he did not "watch" himself he and other employees were going to get into trouble with this union talk. Contrary to Respondents' apparent contention, I con- clude that McCraw's statements to Florence and Barry Fredericks and to Caulfield constituted threats of reprisal and, therefore, were unprotected by Section 8(c) of the Act.64 In finding unlawful the interrogation of Mrs. Goerke and Florence and Barry Fredericks, I note that McCraw's interrogation of the Frederickses was accompanied by threats of reprisal, that McCraw also threatened reprisals during his conversation with employee Caulfield, that Kerman's interrogation of Mrs. Goerke was followed by unlawful discrimination against her daughter for union ac- tivity, that Mrs. Goerke and (probably) Barry Fredericks gave replies which falsely disclaimed knowledge about the Union, that employees were given no assurances against reprisals, and that the interrogation had no legitimate pur- pose. 2. The alleged discrimination against employee Charlene Goerke Respondents' opposition to unionization is shown by McCraw's January 1975 threats that top management would effect reprisals against known union adherents; by Respondents' June 1974 assertion to the employees that they would not get better wages and benefits if a union were seeking them; by Respondents' extensive efforts dur- ing the 1974 Teamsters campaign surreptitiously to find out which employees favored the Union, which were speaking to union representatives, what they were talking about, and what literature was being distributed; by Re- spondents' January and February 1975 efforts to obtain information about the renewed union activities; and by Respondents' assertion on the day of Miss Goerke's dis- charge that there would never be a Union in the Home because Respondents could not afford it. Further, the record shows that Charlene Goerke induced District 1199 to begin an organizing campaign and was a principal employee activist in that campaign, and I con- clude that Kerman and Feigenbaum knew of or suspected 64 Caulfield testified that he did not believe that McCraw spoke in a "malicious manner . . he kind of laughed and I got the impression [from his laugh] that he was trying to relate to me the feeling that I'm taking the situation into my own hands " No similar testimony was adduced from the other employees (including Miss Goerke) who heard McCraw's remarks to Caulfield, or from the Fredenckses, whom McCraw likewise threatened In any event, McCraw's statement that continued overt Union activity would get the employees in trouble with Respondent Kerman would hardly be negated by the employees' belief that such activity would not get them into trouble with maintenance supervisor McCraw. See Central Air Corp, 216 NLRB No. 40 (1975) (ALJD, sec. II, E, 1), Hanes Hosiery Inc, 219 NLRB No. 47 (1975); and cases cited. her union leadership. Thus, in August 1974 Miss Goerke wore a prominent Teamsters button seen by Kerman and Feigenbaum, she later admitted to Kerman in response to his inquiry that she had voted for the Teamsters, in Janu- ary 1975 Supervisor McCraw observed her in a group of four employees who were talking about plans to transport employees to the January 24 meeting, and, also in January 1975, McCraw stated that he knew who the "instigators" were. Moreover, during both the 1974 Teamsters campaign and the 1975 Local 1199 campaign, Respondents made ex- tensive efforts to find out all they could about the organiz- mg activity, including the identity of those who favored the Union, and I infer that they found out what they were anxiously looking for.65 Further, as there is no evidence that Miss Goerke had theretofore done anything to incur Respondents' wrath other than support the Teamsters, I conclude that Kerman was referring to such activity when he told Mrs. Goerke, in late December 1974, that Miss Goerke "stabs us in the back." I cannot and do not credit the testimony of Feigenbaum and Kerman that they heard nothing whatever of any union activity at the Home in December 1974 through February 1975. Such testimony is squarely refuted by Mrs. Goerke's undenied testimony that she reported this activity to Feigenbaum in December 1974 and was interrogated about it by Kerman in January 1975; and by Miss DeFilippo's undenied testimony that during a meeting with Kerman and Feigenbaum on the day Miss Goerke was discharged, she was told that there could never be a Union at the Home because Respondents could not afford it. Just before the first union meeting, Miss Goerke asked both Mrs. Howley and Mrs. Friedman to delay until Janu- ary 31, when Miss Goerke would find out her school sched- ule, her work schedule for the 4-week period beginning February 2. Both Mrs. Howley and Mrs. Friedman agreed. Moreover, Respondents had previously adjusted the work- ing hours of Miss Goerke and other students to their school schedule, sometimes on short notice, without assert- ing that such adjustments presented any special problem. Further, the record shows that the number of nurses aides and orderlies who work on each shift is to some extent flexible,66 and that during the period covered by a particu- lar posted schedule, the employees' schedules are frequent- ly changed on short notice because, for example, a particu- lar employee is out sick. However, a few days after the first union meeting, in which Miss Goerke was one of the most 61 Cf. N.L.R.B. v. Dove Coal Company and Lark Coal Company, 369 F.2d 849, 851 (C A 4, 1966) In view of such 1974 efforts by Kerman and Feigen- baum, Kerman's January 1975 interrogation of Mrs Goerke, and McCraw's demeanor, I do not believe his testimony that he did not mention to Ker- man and Feigenbaum the union "talk" McCraw heard in January and Feb- ruary 1975 66 B-wing charge nurse Goerke testified that when a scheduled nurses' aide failed to show up, Mrs Goerke never called anyone in but worked with what she had; but that at least during one period, the A-wing charge nurse would call in a substitute In reponse to Miss Goerke's January 21 request for more hours during January, she was scheduled for 2-hour stints the next 2 days, and had her days and shifts for the following week changed, without (so far as the record shows) any compensating changes in anyone else's schedule Miss Goerke's testimony that Respondents were always short- handed on weekends was to a significant extent corroborated by Mrs How- ley and to some extent by her and nurses aide Holbrook's testimony that Mrs Holbrook was pleased when her day off was changed from Saturday to Friday SUMMER HILL NURSING HOME active participants, Respondents disregarded Mrs. Howley's and Mrs. Friedman's assurances that Respon- dents would withhold her February 2- March 1 schedule until January 31, and instead posted that schedule on Jan- uary 29. Moreover, although Mrs. Howley testified, in ef- fect, that Feigenbaum told her to give Miss Goerke week- end shifts because they could not conflict with any school schedule, Respondents made no effort to compensate for her loss of 7-to-3 shifts on Mondays and alternate Thurs- days by scheduling her for such shifts on the alternate Sat- urdays when she had not theretofore been scheduled to work, and during which Respondents were often short- handed. When on January 31 she asked for more weekday work on the 7-to-3 shift, preferably 5 shifts a week but at least on the Mondays and alternate Thursdays she had pre- viously worked, Respondents offered her 3-to-11 shifts on Thursdays. She explained that these would conflict with her anticipated school schedule, and pointed out that part- timers on the 7-to-3 shift who were junior to her had not had their hours cut. Kerman said that he could not "just shift the schedule around" for the Goerke siblings (al- though the schedule was not to go into effect for 3 days and would be subject to frequent modifications even after it became current), added that too many Goerkes were working for Respondents, and tried to mduce the Goerke siblings to get work elsewhere. Notwithstanding Miss Goerke's statement that she faced loss of her father's sup- port payments and particularly needed a job, Respondents merely said she would be put on an on-call status. Further, Respondents did not in fact honor that status. Rather, it gave overtime and double-shift work (at over- time rates) to full-time nurses aides who worked on the 7-to-3 shift, changed the days off of full-time nurses aides on that shift, used the services of "call-in" employee Ge- cek, sought to induce another full-time- nurses aide and a full-time orderly to work at overtime rates on their sched- uled days off, and-even with these manning efforts- "were short almost every day for a couple of weeks"-all without giving Charlene Goerke an opportunity to perform "call-in" work. When Miss Goerke learned something about this dis- crimination against her and complained to Mrs. Howley about it, Feigenbaum called Miss Goerke into his office, yelled at her, and accused her of being "nasty" to Mrs. Howley. Miss Goerke truthfully denied being "nasty," but Feigenbaum failed to call Mrs. Howley or Mrs. Friedman (who had told him about the Howley incident) into the office to resolve the conflict, although both were then phys- ically present in the Home. Rather, he discharged Miss Goerke-who was Respondents' senior nurses aide, had received an individual wage increase about a month earlier (just before she renewed her union activity), and had been complimented by Respondent Kerman for the care of his aunt-on the ground that she was insubordinate to and "very hostile, demanding, insolent and officious towards Mrs. Howley." Miss Goerke sought to preserve her version of the Howley conversation by writing; a comment on the warning slip, and'Feigenbaum again yelled at her. When Miss Goerke asserted that two warning slips were needed to discharge someone, that the tendered discharge explana- tion was "flimsy," and "We'll see what becomes of this," 445 Feigenbaum and Kerman blocked her exit, shouted that she had "stabbed them in the back" (thus echoing Kerman's prior description of her Teamsters activity), and sought to regularize the paper basis for her prior discharge by issuing her a second warning slip. Feigenbaum and Ker- man further shouted at her for writing a comment on this warning slip too, called her a spoiled brat and a rotten kid, and threatened to have her thrown out of school. Immedi- ately thereafter, Feigenbaum telephoned Mrs. Goerke that he had fired Miss Goerke because of her complaining, that she was a "bad kid," who should be thrown out of the house, and that she had "stab[bed] them in the back." Thereafter, Respondents through supervisor Friedman un- successfully tried to obtain evidence that Miss Goerke was incompetent and "fresh." The evidence persuades me, and I find, that Respon- dents withheld work from Miss Goerke in the period Feb- ruary 2 to 21 because of her union activity. I find that Respondents disregarded their promises to Miss Goerke to withhold her February 2-March 1 schedule until January 31 in order to supply a paper basis for claiming that no additional work was available to her by the time she was able to tell Respondents when her school schedule permit- ted her to work. I find that but for Respondents' resent- ment at her "stabbing" them "in the back" by her union organizational activities, Respondents would have kept their promise to withhold her work schedule until January 31 and (because she then learned she could work all 7-to-3 shifts and some 3-to-I 1 shifts) would have given her, at the very least, the 7-3 shifts she had been working plus first call on other 7-to-3 shifts and non-Thursday 3-to-11 shifts. Moreover, I conclude that Respondents' subsequent dis- charge of Miss Goerke constituted discrimination to dis- courage union activity, in violation of Section 8(a)(3) and (1) of the Act. Particularly in view of Respondents' "stab in the back" language, and their prior associations with the Goerke family on closer terms than are incident to a mere employer-employee relationship, I believe that Respon- dents regarded Miss Goerke's union activity as singular disloyalty and discharged her upon concluding that such disloyalty was aggravated beyond endurance by Miss Goerke's refusal docilely to submit to the limited discipline imposed by Respondents' discriminatory reduction in her working hours. In so finding, I infer (absent credible con- trary evidence) that Mrs. Howley and Mrs. Friedman gave top management an accurate account of Miss Goerke's re- marks to Mrs. Howley, and conclude that Respondents found such mild remarks offensive only because they pro- ceeded from a union activist and related to her complaints about unlawful discrimination because of such activity.67 67 Because Miss Goerke's complaints to Mrs Howley arose from Respon- dents' unlawful discrimination against Miss Goerke with respect to work assignments, I would find Miss Goerke's discharge unlawful assuming ar- guendo that both Mrs. Howley and Mrs Friedman conveyed to Feigenbaum and/or Kerman Mrs Howley's discredited testimonial version of the con- versation, and that these Respondents discharged her because of an errone- ous belief in the accuracy of these reports. See N LR B v. Burnup & Sims, 379 U.S 21 (1964), Cusano v. N L R.B, 190 F. 2d 898, 902-903 (C.A 3), Allegheny Pepsi-Cola Bottling Company v. N LR.B., 312 F.2d 529, 531 (C A 3, 1962). Indeed, because Miss Goerke's complaints arose from such unlaw- ful discrimination, even if Mrs. Howley's discredited version of the conver- Continued 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The arguments advanced in Respondents' brief rest pri- marily on the testimony of Respondents' witnesses that on January 22-24, Miss Goerke asked Mrs. Howley to defer preparation of the entire nursing schedule until Miss Goerke knew what hours her school schedule would permit her to work; that following Miss Goerke's unsuccessful registration efforts she asked for full-time work on the 7-3 shift and would accept nothing less; and that during her termination interview she used obscene language. For the reasons previously indicated, I discredit the testimony to this effect 68 However, I conclude that the evidence fails preponder- antly to show that Respondents discriminatonly withheld work from Miss Goerke for the period prior to February 2. Miss Goerke did not advise Mrs. Howley until January 21 about the semester break and that Miss Goerke wanted more hours during the rest of January; and did not so advise Mrs. Fnedman until later that -week. Moreover, both Mrs. Howley and Mrs. Fnedman did in fact give Miss Goerke more hours then called for on the posted schedule; indeed, Mrs. Howley gave her such extra hours the very day after being asked for them. CONCLUSIONS OF LAw 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 1199 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondents have violated Section 8(a)(1) of the Act by threatening employees with reprisals for union activity and by interrogating them with regard to union activity in a manner constituting interference, restraint, and coercion. 4. Respondents have violated Section 8(a)(3) and (1) of the Act by withholding work from Charlene Goerke be- tween February 2 and 21, 1975, and discharging her on February 21, 1975, in each case to discourage union activi- ty. 5. Such unfair labor, practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondents have not, in violation of Section 8(a)(3) and (1) of the Act, withheld work from Charlene Goerke between January 11 and February 1, 1975, inclusive. THE REMEDY Having found that Respondents have violated the Act in certain respects, I shall recommend that Respondents be required to cease and desist therefrom. Because Respon- dents' unfair labor practices include the discriminatory dis- charge of an employee leader in the organizing campaign, an unfair labor practice which "goes to the very heart of the Act" (N.L.R.B. v. United Mineral & Chemical Corpora- sation were accurate (supra, In. 46) that conversation could not serve as a legal justification for Miss Goerke's discharge. N.L R.B v M & B Head- wear Co, Inc., 349 F 2d 170, 174 (C A. 4, 1965), Mueller Brass Company, 204 NLRB 617, 620 (1973), enfd. 501 F.2d 680 (C.A. 5, 1974) 68 In my view, the evidence herein meets the requirements of the portion of Lozano Enterprises v. N L.R B, 357 F.2d 500, 502 (C.A 9, 1966) quoted in Respondents' brief. In any event, I regard such language in Lozano as irreconcilable with N.L.RB v. Walton Mfg Co., 369 U S. 404 (1962) tion, 391 F.2d 829, 837-838 (C.A. 2, 1968) ), and threats to discharge other union adherents, Respondents' unlawful conduct leads me to anticipate that unless restrained, they will engage in "continuing and varying attempts to attain the same end in the future" (N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 437-439). Accordingly, I shall recom- mend that Respondents be required to cease and desist from infringing on employee rights in any other manner. Pan American Exterminating Co, Inc., 206 NLRB 298 (1973); N.L.R.B. v. Southern Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8, 1965). I shall also recommend that Re- spondents be required to offer Charlene Goerke immediate reinstatement to the job of which she was unlawfully de- prived, 'or, in the event such job no longer exists, to a sub- stantially equivalent job, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings by reason of the discrimination against her, by payment to her of a sum of money equal to that which she would have earned, but for the discrimination against her, from February 2, 1975, to the date of a valid offer of reinstatement, less her net earnings during this period,69 to be computed in the manner described in P. W. Woolworth Company, 90 NLRB 289 (1962), with interest as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1950). In addition, I shall recommend that Respondents be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law,- and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended Order. ORDER70 Respondents Neil Kerman , Melvin Feigenbaum, Jacob Kresch, and David Kerman, a Co-Partnership , d/b/a Sum- mer Hill Nursing Home, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, or any other labor organization , by discharging or withholding work from employees, or otherwise discrim- inating in any manner in respect to their hire or tenure of employment or any term Or condition of employment. (b) Interrogating employees concerning their and other employees' union membership and activities , in a manner constituting interference, restraint, and coercion. (c) Threatening employees with reprisals for activity on behalf of District 1199 or anyother labor-organization. (d) In any other manner interfering with , restraining, or coercing their employees in the exercise of rights guaran- teed them in Section 7 of the Act. - 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: 69 Such net earnings shall not include earnings from Respondents prior to her discharge 70 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 he deemed waived for all purposes. SUMMER HILL NURSING HOME (a) Offer Charlene- Goerke immediate reinstatement to her former job or, if her former job no longer exists, to a substantially equivalent job, without prejudice to her se- niority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her, in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 or useful to an analysis of the amount of backpay due under the terms of this Order. (c) Post at their place of business in Old Bridge, New Jersey, copies of the attached notice marked "Appen- dix." 71 Copies of the notice, on forms provided by the Re- gional Director for Region 22, after being duly signed by Respondents' representatives, shall be posted by Respon- dents immediately upon receipt thereof, and be maintained by them in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that the said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 22, in writ- ing, within 20 days after receipt of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint is dis- missed to the extent that it alleges discrimination against Charlene Goerke effective prior to February 2, 1975. 71 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 of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED By ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated 447 the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: The National Labor Relations Act give employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion - To refrain from any such activities. WE WILL NOT threaten to punish our employees for activity on behalf of District 1199, National Union of Hospital and Health Care Employees , RWDSU, AFL-CIO, or any other labor organization. WE WILL NOT ask our employees about union activity in a manner constituting interference, restraint, or -coercion. WE WILL NOT discharge, withhold work from, or otherwise discriminate against any employee to dis- courage membership in District 1199 or any other union. WE WILL offer Charlene Goerke reinstatement to her old job or, if thatjob no longer exists, to a substantial- ly equivalent job, and make her whole, with interest, for loss of pay resulting from her failure to get work and her termination. Our employees are free to exercise any or all these rights, including the right to join or assist District 1199 or any other union. Our employees are also free to refrain from any or all such activities , except to the extent that union membership may be required by a collective-bargaining agreement as a condition of continued employment , as per- mitted by the proviso to Section 8(a)(3) of the Act. -WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of these rights. NEIL KERMAN, MELVIN FEIGENBAUM, JACOB KRESCH AND DAVID KERMAN, A CO-PARTNERSHIP, d/b/a SUMMER HILL NURSING HOME