Rock Hill Convalescent Center

ROCK HILL CONVALESCENT CENTER Rock Hill Convalescent Center and Service Employ- ees International Union, Local 579, AFL-CIO. Case 11-CA-6120 November 10, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 28, 1976, Administrative Law Judge John F. Corbley issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the rulings,' findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 1 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 his findings 2 Although St John's Hospital and School of Nursing, Inc, 222 NLRB 1150 (1976), was on the facts limited to no-solicitation , no-distribution rules in hospitals, we agree with the Administrative Law Judge that the considera- tions which led to our holding therein are equally applicable here Accord- ingly, we affirm his finding that Respondent 's no-solicitation rule is unlaw- fully broad 3 Respondent's extraordinary motion to take additional evidence is hereby denied inasmuch as the evidence as to the supervisory status of charge nurses which Respondent seeks to present does not constitute newly discovered evidence Sec. 10248 (d)(1) of the Board's Rules and Regula- tions. The Respondent has also filed an extraordinary additional ground in support of Respondent's exceptions in which it requests that the instant case be dismissed or, alternatively , remanded to the Administrative Law Judge on the grounds that the employees herein who participated in the May 5 walkoff did not comply with the 10 -day notice provision contained in Sec 8(g) of the Act Thereafter, the General Counsel filed a motion to strike and Respondent filed an opposition to General Counsel's motion The question of the applicability of Sec 8 (g) to the facts of the instant case was neither raised nor litigated before the Administrative Law Judge Further, Respon- dent has not merely presented an additional ground in support of its excep- tions, but has attempted to file a new exception in an untimely manner contrary to Sec 102 46, et seq, of the Board's Rules and Regulations More- over, the facts found herein reveal that the employees ' notice of application for leave of absence was approved prior to their leaving. Accordingly, we hereby grant General Counsel's motion to strike Respondent's extraordi- nary additional ground in support of Respondent's exceptions 881 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Rock Hill Convalescent Center, Rock Hill, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on March 15, 1976, at Rock Hill, South Carolina, pursuant to a charge filed by Service Em- ployees International Union, Local 579, AFL-CIO, herein- after referred to as the Union, on May 19, 1975, which was served on Respondent on the same date; an amended charge filed by the Union on May 30, 1975, and served on Respondent on the same date; a second amended charge filed by the Union on June 19, 1975, and served on Re- spondent on that date; a complaint and notice of hearing issued by the Regional Director for Region 11 on June 30, 1975, and served on Respondent by registered mail on the following day, and on an amendment to complaint and notice of hearing issued by the Regional Director for Re- gion 11 on February 19, 1976, which was served on Re- spondent by registered mail on the next day. There were also orders by the Regional Director postponing the date of the hearing. The complaint, which was amended at the hearing, alleges that Respondent has violated Section 8(a)(1), (3), and (4) of the Act, variously, by maintaining and enforcing an unlawful no-solicitation rule; refusing to reinstate economic strikers Joan D. Brookins, Carol Ann McManus, and Brenda C. Small to their former or sub- stantially equivalent positions of employment since on or about May 5, 1975, because of the protected concerted ac- tivities engaged in by these employees; and discharging Brenda C. Small on or about June 10, 1975,' because of that employee's union or other concerted activities and be- cause the employee gave an affidavit to an agent of the National Labor Relations Board . In its answers to the complaints which answers were also amended at the hear- ing, Respondent has denied the commission of any unfair labor practices. For reasons which appear hereinafter, I find and con- clude that Respondent has violated Section 8(a)(I), (3), and (4) of the Act, essentially as alleged in the complaint. At the hearing the General Counsel and Respondent were represented by counsel. Each party was given full op- portunity to examine and cross-examine witnesses, to in- troduce evidence, and to file briefs. The parties waived the presentation of oral argument at the conclusion of the hearing. Subsequent to the hearing, briefs have been re- ceived from the General Counsel and Respondent and have been considered. Upon the entire record in this case including the briefs i All dates appearing hereinafter occurred in 1975 unless otherwise noted 226 NLRB No. 133 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and from my observation of the witnesses, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is now, and has been at all times material herein, a proprietary nursing home doing business in the State of South Carolina, with a facility located at Rock Hill, South Carolina, where it is engaged in the business of providing nursing care and service to its customers. Respondent is a wholly owned subsidiary of MGR, In- corporated, a South Carolina corporation. During the 12 months preceding the issuance of the complaint, which period is representative of all times mate- rial herein, Respondent derived an annual volume of reve- nue in excess of $500,000 in the operations of its Convales- cent Center at Rock Hill, South Carolina. Also during the 12 months preceding the issuance of the complaint, which is again a period representative of all times material herein, Respondent purchased goods or ser- vices valued in excess of $50,000 which originated directly from points outside the State of South Carolina. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Relevant Hierarchy The complaint alleges, the answer as amended admits, and I find that the following named persons occupied the positions set opposite their names and are supervisors with- in the meaning of Section 2(11) of the Act: David Little Vice President Jo L. Skinner Administrator Virginia Johnson Director of Nurses Charlotte Hawthorne Assistant Director of Nurses Martha Bennett Director of Nurses (until May 2) B. Background and Sequence of Events On February 3, 1975, Jo L. Skinner became administra- tor of Respondent's Convalescent Center at Rock Hill, South Carolina, hereinafter referred to as the Center. She replaced Tom Ridgeway. Friction thereafter developed between Skinner and then Director of Nurses Martha Bennett. Thus in March and April Bennett attempted to discuss with Skinner certain complaints about working conditions previously made by the employees to Bennett, but Skinner refused to discuss them. Bennett then told the employees they would have to do the best they could with what they had 2 On April 9, a meeting of Respondent's registered nurses (RN's) and licensed practical nurses (LPN's) was held at the Center with Bennett and Charlotte Hawthorne, both RN's, and LPN's Margaret Reiss, Brenda Small, Linda Horton, Dorothy Thompson, and Jennie Watkins in atten- dance At this meeting the employees voiced complaints to Bennett about the lack of help and the status of patient care at the Center. Bennett then asked those present if they would care to talk to Skinner, noting that she, Bennett, had tried to talk to Skinner herself but, apparently, without suc- cess. The employees agreed and Bennett went to summon Skinner. Skinner came to the meeting, heard the same complaints, and said she would check into them. After the meeting Skinner spoke with Bennett privately and told Bennett that Skinner did not appreciate that type meeting and wanted no more like it. Skinner particularly objected to Bennett that Skinner was called into the meet- ing without any prior consultation with Bennett. Skinner asked for greater cooperation from Bennett in this regard in the future. Skinner also told Bennett that Skinner did not like Margaret Reiss, Brenda Small, and Linda Horton for speaking out about these conditions and that she would replace them as soon as she could.3 On May 1, Skinner advised Bennett that the latter was going to be replaced as director of nurses by Virginia John- son, who had dust been hired. This demotion predictably did not sit well with Bennett who went home for a few hours to compose herself. Bennett was miffed, totally aside from the loss of prestige, by the fact, which she had learned, that Johnson had only 2 years of training (as com- pared with the 3 taken by Bennett) and with the circum- stance that Johnson is black whereas Bennett is white.4 After pulling herself together, Bennett returned to work. At that time Bennett informed LPN's Carol McManus and Watkins that Bennett was being replaced as director of nurses. The next day, May 2, Bennett also informed LPN's Ply- ler and Joan Brookins of Bennett's replacement. Sometime 2 These findings are based on the credible testimony of Bennett in this regard To the extent that the testimony of Skinner is contrary I do not credit Skinner Skinner adopted a somewhat hostile stance while testifying (e g, she became angry at one point when I stated I would not consider a certain statement she had made where the General Counsel objected) and she was argumentative and evasive on cross-examination With the excep- tion of one matter to be discussed I found Bennett to be a generally reliable witness, who testified in a straightforward manner 3 Here again I credit Bennett over Skinner Small, an alleged discrimina- tee, and Horton are no longer employed by Respondent While Reiss is, Reiss did not get involved in the subsequent concerted activities of the em4ployees Bennett admitted her reaction to the fact that Johnson had lesser train- ing than she According to the testimony of Dale Plyler, which I credit in this regard, Bennett told Plyler that Bennett objected to being replaced by, and working under, a black I do not credit Bennett's denial that Bennett objected to working for a black Bennett became defensive in making such denial and did not in my judgment testify at that moment in the straightfor- ward manner she otherwise showed on the stand ROCK HILL CONVALESCENT CENTER prior to 2 p.m. that day Bennett gave her resignation to Skinner.5 At a meeting of the RN's and LPN's at 2 o'clock that afternoon Skinner announced the resignation of Bennett and her replacement by Johnson as director of nurses. Af- ter this announcement , Skinner and Hawthorne (the asso- ciate director of nurses) departed from the meeting. LPN's Watkins, Small, Brookins, Horton, Thompson, Reiss, and McManus remained by permission of Skinner to hold a discussion. Included among the matters talked about was the separation of Bennett and employee complaints about working conditions. As to the latter, the LPN's were partic- ularly angry that Skinner would not leave them a key to the linen closet on the evening shift so that they could obtain fresh linens when such were needed The employees also objected to their failure to obtain raises, to a so-called 24- hour tardy notice introduced by Skinner, and to what they considered insufficient help to maintain proper health care. While the meeting was going on Brookins telephoned Bennett . Brookins asked Bennett whether it would help Bennett get Bennett's job back if the employees were to leave. Bennett rejected this offer saying that it would only hurt them. Brookins said that, because of the unsuccessful results of the previous meeting with Skinner in April and the fact that nothing had been done about working condi- tions, the employees were going to do something and that Brookins would notify Bennett later. The LPN's thereupon decided to take a leave of absence to present their grievances to David Little, vice president of MGR, the firm of which Respondent is a wholly owned subsidiary. For this purpose they drew up a statement dated that same day which read "In protest to the resignation of Mrs. Bennett we submit our notice of leave of absence effective Monday 5-5-75." This document was signed by Watkins, Small, Horton, McManus, Brookins, and Thompson. While the statement does not indicate that the purpose of the leave of absence was to visit Little, the LPN's explained in their testimony that this was not mentioned because they were afraid that their leave of absence would be turned down by Skinner.6 The LPN's then went to Skinner's office where they pre- sented their statement to Skinner. Skinner asked how long the leave of absence would be for and the employees said they did not know. Skinner then said, "Okay, thank you," and the employees left her office 7 5 While Bennett and Skinner both testified that Skinner offered Bennett a different job, there is an issue whether a vacancy existed at the time for an RN While Skinner claimed there was such a vacancy which had apparently long gone unfilled (after one Partlow left), there is no indication Skinner told Bennett that Bennett could take Partlow's old job I find it unnecessary to resolve this question in view of the fact that Bennett did resign by her own admission 6 The findings as to this meeting (with the exception of Brookins' phone call to Bennett) are based on the credible and partly corroborative testi- mony of McManus, Brookins. Small, Watkins, and Horton My findings as to the phone call are based on the credible testimony of Bennett in this regard In its brief Respondent strongly urges that I reject this testimony However, inasmuch as this testimony is undisputed and is buttressed by the sequence of events which follow, there is no basis to discredit it These events, to appear, include a meeting on May 4 at which the employees in the presence of Johnson and Skinner again protested working conditions and a further meeting the employees had with Little on May 5 for the same pur- pose 883 Later in the afternoon Brookins called Bennett and told Bennett that the employees were leaving on May 5, be- cause they could no longer tolerate the lack of help and were going to try to do something about it. On May 3, Watkins met Johnson, the newly appointed director of nurses, in Skinner's office. Skinner asked Wat- kins how long the leave of absence would be to which Wat- kins responded that she didn't know. Skinner stated at this time that the leave of absence had been approved.' A meeting of the employees and Johnson was held on May 4. In attendance besides Johnson were Brookins, Small, Horton, Thompson, and McManus. The employees complained to Johnson about the same working conditions to which they had taken exception at their meeting of May 2 Johnson said she understood the employees' concern and further allowed that she, Johnson, was not sure she had a job. Johnson then asked whether it was agreeable to the employees to have Skinner attend the meeting. Johnson then telephoned Skinner.' Skinner came to the meeting and reviewed a sheet of paper which listed the employees' complaints. Johnson also told Skinner what the employees had said. Also discussed in Skinner's presence was the resignation of Bennett. Skin- ner apparently gave the employees no satisfaction but she did advise them that their leave of absence was approved.10 The next day, May 5, McManus, Brookins, Horton, 7 These findings are based on the credible and corroborative testimony of McManus and Brookins in this regard I do not credit the testimony of Skinner that she merely said "thank you" and that nothing more transpired 8 These findings are based on the credible testimony of Watkins in this regard I do not credit the contrary testimony of Skinner that Skinner told Watkins that the leave of absence was a resignation-testimony not corrob- orated by Johnson who was not asked about this incident Watkins I found to be a reliable witness who testified in a ready and convincing manner She is no longer employed by Respondent, having left voluntarily in November While she testified that she left at that time because she was falsely accused of something undisclosed, she did not identify her accuser as a supervisor or an employee Upon leaving she sent a letter to Johnson in which she, Wat- kins. indicated kindly feelings towards Respondent I conclude, in the cir- cumstances . that she was an essentially disinterested witness at the time of her testimony I have already commented on the credibility of Skinner 'These findings are based on the credible and undisputed testimony of McManus in this regard 10 All these findings, except as to the discussion of Bennett, are based on the credible and corroborative testimony of McManus, Brookins, and Small in this regard I do not credit the claim of Skinner that she told the employ- ees that their leave of absence would be treated as a resignation -a claim not corroborated by Johnson who was not questioned in respect to this statement of Skinner's Skinner also testified that she told the same thing to Watkins on the day before-testimony I have already discredited While Skinner further testified that Skinner advised Thompson on May 3 that the leave of absence was a resignation and Thompson did not deny it (Thomp- son was not asked ) I find it unnecessary to make any findings in regard to this Skinner-Thompson conversation in view of my finding as to what Skin- ner said on the occasion of the later meeting of May 4 at which Thompson and the others were present In concluding that Skinner did in fact , approve the leave of absence of the six employees 1 am not unmindful that by so doing Skinner left the Center short-handed and with the prospect of obtaining replacements on short notice However in my judgment this circumstance (which would, at least at first blush, suggest that Skinner could not have approved the leave) is more than counterbalanced by two other facts which buttress the version of McManus, Brookins, and Small, which 1 have credited Thus, if the em- ployees were informed by Skinner on May 4 that their leave of absence had been treated as a resignation, they would no longer have been employees as of that date As nonemployees they would have no interest in seeking to improve the working conditions at the Center as they did when they visited David Little at Little's office in Spartanburg the next day Secondly, I note that McManus. Brookins and Small each credibly testified-without con- 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson, and Watkins went to see Little, the vice presi- dent of MGR, at Little's office at Spartanburg, South Car- olina. The employees told Little that they had come to see him based on a leave of absence approved by Skinner. They said their request for a leave of absence did not men- tion that they sought to visit Little because they were fear- ful that a leave of absence for such a purpose would have been disapproved by Skinner. They then outlined to Little the working conditions, previously recounted supra, which had caused them to come to see him. They told Little that they could work with their new director, Johnson, and had indeed told Johnson so. They advised him that Skinner should be dismissed because, they said, they believed that Respondent could be one of the best places to work in Rock Hill if it were properly managed. Little took down the names, addresses, and phone numbers of his visitors on a piece of paper. Little then instructed them to return to Rock Hill and said that he would call Horton's house to let them know something. it The employees returned to Horton's house as directed. Little never called them, however. On May 6, Brookins, Thompson, Watkins, and Small met with Lucy Manning, an organizer for the Union. The employees explained the situation to Manning, who sug- gested that they go back to work immediately. Manning also requested the employees to meet with Val Cox, the Union's International representative. The employees then signed union cards and were given additional cards for their coworkers. This is the first occasion shown by the record in which any employees engaged in any union activ- ities. On May 7, Brookins, among others, met with Val Cox and presented him with union cards signed by more than half of Respondent's employees. Also on May 7 Small called Skinner and advised Skinner that the employees who had taken a leave of absence were ready to return to work. Skinner told Small that Johnson had all the floors covered. Later that same day Small called Johnson. Johnson said she would make appointments for the employees to see her about returning to work and that Small should come in on May 9 Beginning about May 7 through May 9 McManus, tradiction by Johnson-that, when each of them was interviewed by John- son on May 7 or 9 in connection with their efforts to resume employment, Johnson announced to each that Respondent treated their leave of absence as a resignation If indeed Skinner had already told the same thing to these same employees in Johnson 's presence at the meeting of May 4, as Skinner claimed , there would have been no need for Johnson to make this an- nouncement to the employees when they tried to come back to work Also, as I will mention again later in this Decision, Skinner told Watkins on May 9, according to the credible and undisputed testimony of Watkins in this regard, that when Skinner learned that the employees had gone to Spartanburg they were no longer her employees The necessary implication of this statement was that they continued to be her employees--despite her claim they had already resigned-until she learned they had gone to Spar- tanburg, a fact which Skinner could not have known until after said visit on May 5 which is also after their leave of absence took effect My finding that the separation of Bennett was likewise discussed at the meeting of May 4 is based on the undisputed testimony of Skinner in this regard I do not credit Skinner's general denial that employees did not discuss Job complaints with Skinner after May 2 11 These findings are based on credible and mutually corroborative testi- mony of McManus and Brookins in this regard Little did not testify Brookins, Small, Watkins, Thompson, and Horton-all of whom had signed the leave of absence document and all of whom, except Small, had gone to Spartanburg to see Lit- tle-saw Johnson or Skinner about getting their jobs back. Watkins and Thompson returned to work in the same posi- tion and on the same shift as they had been employed prior to May 5. Horton resumed employment on the day shift after having worked most of her time previously on the evening shift. Small was rehired on the evening shift as a full-time LPN whereas she had been employed only part time before May 5. McManus and Brookins have not been rehired. McManus was at one point offered work "maybe" by Johnson on a part-time basis on the evening shift whereas McManus was previously employed full time on that shift. Brookins, who had also been a full-time employ- ee, was offered part-time work by Johnson on May 16 of about 1 day per week, which Brookins declined. The complaint alleges that Respondent's refusal to rein- state Brookins and McManus to their former or substan- tially equivalent positions on and since May 7 is a violation of Section 8(a)(1) of the Act.12 After her return to work, Small passed out union author- ization cards to employees at the Center. Near the end of May she gave such a card to employee Hybernia Jones. Jones informed Johnson about this. On or about May 30, as I will find, Johnson spoke with Small and informed Small that Small was violating regula- tions by passing out union literature on the job. As I will further find, Respondent had in effect at all times pertinent hereto a no-solicitation rule which was posted at its main bulletin board and read as follows: No Soliciting- No Collecting- No Canvassing- on Rock Hill Convalescent Center Premises without permission from the Administration. The complaint alleges that the promulgation, mainte- nance, and enforcement of the latter rule is a violation of Section 8(a)(1). On June 5, Small gave an affidavit to an agent of the National Labor Relations Board. On June 10, Small was discharged by Skinner. The com- plaint alleges that, by Small's discharge, Respondent vio- lated Section 8(a)(1), (3), and (4) of the Act. Concluding Findings A. Preliminary In its brief Respondent contends that the concerted ac- tivities of the employees in early May were unprotected. That is, says Respondent, the employees "walked off" the job on May 5 in protest over the separation of Supervisor Bennett. Respondent points to a number of evidentiary items in support of this contention. Thus, it adverts to the wording of the leave of absence itself, Brookins' telephone call to Bennett during the fateful employee meeting on 12 The complaint also includes Small in this allegation However, Small, as found , was reinstated on a full-time basis after previously being em- ployed only part time ROCK HILL CONVALESCENT CENTER May 2 (which are matters previously discussed in this De- cision), and also McManus' application for unemployment compensation from the State of South Carolina, and Mc- Manus' admitted statement to a coworker, LPN Plyler, to this same effect. I have no difficulty in determining that the employees' cessation of employment was, in part, in protest of Ben- nett's separation.13 But the walkoff was essentially, as the employees testified, a protest over Respondent's working conditions and their failure to make any headway with Skinner-directly (as on May 4) or through Bennett-in trying to improve these conditions. Their trip on May 5, the day after they last worked, to see David Little to seek these same improvements from him proves this purpose beyond cavil. Consequently, this is not a case where we need entangle ourselves in the meshes of the questions whether and to what degree a strike or cessation of employment over the termination of a supervisor is a protected activity.14 This is rather a case where the employees engaged in a work stop- page motivated in substantial part by their desire to protest working conditions-the classic economic basis of protect- ed strikes.15 Bennett's separation is, of course, related but principally to the extent that, since Bennett was sympa- thetic to the employees' demands, her termination repre- sented a further frustration in their efforts to improve their working conditions.16 But what is of the greatest significance here is that when the alleged discriminatees, McManus and Brookins, tried to get their jobs back on May 7 and 9 each was faulted by Johnson or Skinner-according to the credible and undis- puted testimony of the employees-only for their visit to Little." Skinner admitted that she told the employees that this was a poor decision. Skinner also told Watkins on May 9 (according to Watkins' credible and undisputed testi- mony) that, when Skinner found out the employees went to Spartanburg, they were no longer her employees. The em- ployees' contemporaneous protest over the separation of Bennett was not even mentioned by Johnson or Skinner in their interviews of McManus or Brookins insofar as this record shows.18 Thus, it is clear that Respondent took umbrage at Mc- Manus and Brookins only as to that aspect of the employ- 13 Even Plyler testified that McManus told her that the walkoff was in protest of Bennett's separation "among other reasons " 14 E g., compare the Board's decision in Dobbs Houses, inc, 135 NLRB 885, 888-889 ( 1962), with the court 's denial & enforcement at 325 F 2d 531 (CA 5, 1963) 15 E g, N LR B v. Washington Aluminum Company, Inc, 370 U S 9 (1962) 16 See Kelso Marine Inc, Kel Stress Division, 199 NLRB 7 (1972) How- ever, I specifically reject Respondent's implied contention that the employ- ees were protesting the employment of a black-Virginia Johnson-as their new supervisor. One of the employees involved, Watkins, is herself of the same race. Watkins and McManus, according to their credible and undis- puted testimony, assured Johnson that the employees' dispute with Respon- dent was not directed at Johnson. 17 See the testimony of McManus and Brookins 18 Id. Johnson merely claimed in her testimony that McManus (not John- son) stated in McManus' interview with Johnson that McManus walked off to protest the resignation of Bennett but that McManus would nevertheless be able to work with Johnson I will say more later in this Decision about Johnson's version of this conversation. 885 ees' concerted activity which was unquestionably protect- ed-their protest over working conditions.19 B. The Refusal To Permit McManus To Return To Work McManus met with Johnson at Johnson's office at 8 p.m. on May 7. McManus told Johnson that McManus desired to return from her leave of absence. Johnson re- plied that Johnson had taken the employees' leave of ab- sence as a resignation. Johnson went on to express her sur- prise that the employees had gone to Spartanburg to see David Little and asked McManus what McManus thought she had accomplished. McManus said she had obtained peace of mind. Johnson told McManus that Johnson want- ed McManus back, that McManus would work on the day shift as a charge nurse (as McManus had done before) beginning on May 10, and that McManus would be work- ing with Carol Benfield (a newly hired LPN).20 Johnson showed McManus a schedule whereon McManus was named as charge nurse commencing May 10. Johnson ad- vised McManus, however, that McManus would have to see Skinner to have the company policy read to McManus before McManus returned to work.2t McManus saw Skinner on May 9. Skinner asked Mc- Manus if McManus was there to fill out-an application. McManus explained she had to have the company policy read to her. Skinner then asked McManus what McManus had accomplished by going to Little and that very few peo- ple get as far as Spartanburg to see him. Skinner continued that, if McManus came back, McManus would lose her seniority, sick days, and vacation, and start at a low grade. McManus replied that Johnson had scheduled McManus to begin work on May 10. Skinner retorted that Skinner was her own boss and did the hiring and firing. Skinner added that McManus should not be upset if McManus did not have a job. Skinner then directed McManus to return to Johnson to see if Johnson had a job for McManus 22 McManus went to see Johnson on that same day. This time Johnson denied that Johnson had scheduled McMa- nus to resume work on May 10. While Johnson was talking with her, McManus checked the schedule on the wall and noticed that it was a new one and that McManus' name was not on it. Johnson reiterated she was surprised that McManus had gone to Spartanburg, that she thought the other nurses had led McManus astray and that Johnson hoped McManus had learned a lesson and would never do it again. Johnson concluded that Johnson would keep Mc- 19 N L R B v Washington Aluminum Co, supra 20 Spelling as noted on G C Exh 17 21 These findings are based on the credible testimony of McManus in this regard To the extent that the admittedly uncertain testimony of Johnson disagrees, I do not credit it Johnson did admit, however, that .,he offered McManus ajob on the 7-3 shift but on a relief basis I specifically discredit any implication in the testimony of Johnson that McManus' name was not placed on Respondent's schedule for the day shift (7 a in to 3 p in ). (John- son said it was untrue that McManus had seen such a schedule) McManus, Brookins, and Watkins all credibly testified that they saw McManus' name on the schedule to begin work on May 10 on the day shift Each of these employees credibly testified that they saw the schedule with McManus' name inserted, as indicated, when they were separately interviewed by John- son on May 7 about returning to work 22 These findings are based on the credible and undisputed testimony of McManus in this regard 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manus in consideration possibly for a part-time job on the evening shift (3-11 p,m.) or full time on the midnight shift (11 p.m. to 7 a.m.).23 McManus has not been reinstated In addition to contending that McManus' participation in the concerted activities of May 2-May 5 was unprotect- ed-a contention I have rejected-Respondent specifically argues that, assuming McManus was engaged in a protect- ed economic strike, McManus was not entitled to reinstate- ment on May 7 because by that time McManus had been permanently replaced with Carol Benfield. I likewise reject this contention. Benfield was hired by Respondent no later than on May 5. However, as I have found, Johnson told McManus on May 7 that McManus would be working with Benfield on the day shift. That a job was open on that shift for Mc- Manus is supported not only by the fact, as I have found, that-at least as of May 7-McManus' name appeared on a schedule to begin work on May 10, but also by the fact that Horton was hired on or about May 8 to work full time on that same shift as a charge nurse working with Ben- field .21 The position filled by Horton was obviously the one already promised to McManus.25 This job again became vacant when Horton resigned on June 11. In view of the foregoing, it is clear and I find that Re- spondent refused to permit McManus to return to work on and after May 10 (when McManus was scheduled to re- sume) because of McManus' participation in a protected concerted activity-the joint cessation of work on May 5 by six LPN's who were protesting working conditions at the Center.26 I, accordingly, conclude that by Respondent's instant refusal to reinstate McManus on and after May 10 it violated, and is violating, Section 8(a)(1) of the Act.27 I likewise find that the continued refusal to reinstate Mc- Manus on and after June 12 (when the job filled by Horton again became vacant) Respondent further violated, and is violating, Section 8(a)(1) of the Act. C. The Refusal To Permit Brookins To Return To Work Brookins went to see Johnson on May 7 to discuss Brookins' resumption of employment. Johnson told Brook- ins that "they" treated the leave of absence as a resignation and asked what the employees had accomplished and whether they had learned anything by their conduct John- son went on that if Brookins returned there would be no 23 These findings are based on the credible testimony of McManus in this regard Johnson testified only to one meeting between herself and McMa- nus in connection with McManus' return to work I have already discussed Johnson's testimony in that regard 24 Horton credibly so testified G C Exh 17 confirms that Horton worked full time on this shift along with Benfield from at leas( May 9 until Horton resi5ned on June 11 2 Horton, who had previously worked primarily on the evening shift, was also criticized for going to Spartanburg by Skinner when Skinner inter- viewed Horton about returning to work on or about May 7 Horton, unlike McManus, assured Skinner that Horton had not gone to see Little in order to embarrass Skinner 26 See N L R B v Washington Aluminum Co, supra Cf Kelso Marine, Inc supra 2^ Okla-Inn, d/b/a Holiday Inn of Henryetta, 198 NLRB 410 (1972), enfd 488 F 2d 498, 503 (C A 10, 1975) change in conditions and no more help. Johnson then pro- ceeded to show Brookins a schedule which indicated not only that McManus was slated to work as charge nurse on the day shift beginning on May 10 but also that Brookins' job as full-time charge nurse on the north hall of the Center during the midnight shift was still unfilled at the time. No position was offered to Brookins in this interview, although Johnson admitted that Johnson has the authority to make the initial selection of employees she likes to work with 28 On May 9, Small telephoned Brookins and advised that she, Small, had been hired as charge nurse on a full-time basis on the north hall during the midnight shift ( i.e., Small had been appointed to fill Brookins' job). Small had previ- ously been employed on a part-time basis as a relief nurse 29 On May 16, Brookins visited the Center and saw John- son. Brookins asked Johnson why Brookins had been re- placed by Small. Johnson replied that Small was a relief nurse. To this Brookins responded she heard that Small was working full time. Johnson rejoined that Johnson would work this out,30 Brookins spoke to Skinner on the same day. Brookins also asked Skinner the questions Brookins had asked John- son. Skinner gave Brookins no direct answer but averred that she, Skinner, had the right to hire and fire. Skinner then inquired of Brookins what Brookins had accom- plished by going to Spartanburg While Brookins' answer is not shown, it is clear that Skinner offered Brookins no job on this occasion. The meeting concluded with Brookins' offer to return if Respondent had an opening-for which Skinner thanked Brookins.3' Brookins has not been rein- stated. That evening Johnson called Brookins and offered Brookins a job as relief nurse working 2 days every 2 weeks. Brookins declined this offer. I conclude on the basis of the foregoing that Respon- dent's refusal to permit Brookins to return to work on and after May 7 in the job previously held by Brookins was because Brookins joined in protected concerted activity, that is, for the reason that Brookins participated in the concerted cessation of work by six LPN's on May 5, a purpose of which was the protest of working conditions at the Center. I further find that by refusing to reinstate Brookins for this reason Respondent has violated, and is violating Section 8(a)(l) of the Act 32 28 These findings are based on the credible and undisputed testimony of Brookins in this regard 29 Although Small had signed the leave of absence paper on May 2, she did not go to Spartanburg with the other signers-a fact mentioned to Skin- ner by Small when Small was interviewed by Skinner on May 9 about resuming employment 30 These findings are based on the credible testimony of Brookins in this regard This testimony is not specifically denied by Johnson Johnson testi- fied that she saw Brookins briefly on this occasion but did not talk to Brookins about the latter coming back to work This is literally true to the extent that Johnson did not offer Brookins a job, hence it does not specifi- call^ dispute the credited testimony of Brookins, supra 3 These findings are based on the credible testimony of Brookins in this regard Skinner did not specifically deny Brookins' version of this conversa- tion Skinner testified merely that Skinner did not discuss Brookins' reem- ployment which, upon careful analysis of the credited version of Brookins, supra, is literally true insofar as Skinner's contribution to the conversation was concerned 32 The General Counsel has, apparently, abandoned the allegation of the ROCK HILL CONVALESCENT CENTER 887 D. The No-Solicitation Rule In Johnson's confrontation with Small on or about May 30, which has previously been mentioned and will be dis- cussed more fully later in' this Decision, Johnson warned Small that the incident in which Small solicited Hybernia Jones to sign a union card was a violation of Respondent's regulations for which Small could be discharged. In his brief the General Counsel argues that Respondent posted its no-solicitation rule, previously described, after thus warning Small for engaging in union activities. I dis- agree. The rule was posted at least as early as May 1, 1975. I reach this conclusion on the basis of the undisputed testi- mony of Skinner that the rule was promulgated pursuant to a meeting of Respondent's department heads at which Bennett (who resigned on May 2) was present and the testi- mony of Johnson that Johnson saw the rule posted on the main bulletin board on April 30 or May 1, when Johnson was first interviewed for a job with Respondent Hybernia Jones and Small testified that they had not observed the notice posting the rule until after the Jones-Small incident. This testimony, of course, does not prove that sign was not posted. While at another point in her testimony, Small tes- tified that, in addition to not seeing the notice, it definitely was not posted on "the" bulletin board at the Center be- fore May 30, this testimony likewise creates no conflict. For Johnson further testified without dispute that there were two bulletin boards at the Center at the time in ques- tion and Small's testimony does not indicate on which of these the notice was not posted. Johnson was unaware whether the notice had been published on the second bulle- tin board. I, accordingly, conclude that the notice was posted at all relevant times herein beginning at least as early as May 1, 1975. Since this rule was promulgated prior to the advent of the Union, it was not established for discriminatory rea- sons. However, since the rule prohibits solicitation (of any kind, union or otherwise) at all times on company premises without distinguishing between worktime and nonwork- time, it is presumptively unlawful.33 Inasmuch as Respon- dent has presented no evidence to rebut this presumption I conclude that the rule is unlawfully broad. I therefore find that, by maintaining an unlawfully broad no-solicitation rule at all times pertinent hereto, 4 Respondent has vio- lated, and is violating, Section 8(a)(1) of the Act. E The Discharge of Small Small was employed from January 30, 1975, until Re- spondent discharged her on June 10. Her last position was that of charge nurse working full time at the Center's north hall during the midnight shift. complaint that Small was likewise unlawfully refused reinstatement by Re- spondent on or about May 7 The record shows, as I have found, that Small returned after May 7 to a better job than Small had previously enjoyed I shall, accordingly, recommend that this allegation of the complaint be dis- missed 33 See St John's Hospital and School of Nursing. Inc 222 NLRB 1150 (1976) 34 There is likewise no evidence that the rule has ever been changed Small signed the leave of absence paper on May 2. She did not, however, visit Little in Spartanburg with the other five signers on May 5, being sick at the time. She executed a union card on May 6 and attended a union meeting on May 7. Small resumed her employment on May 9 in the position she held until her discharge She had previously worked only on a part-time basis. After May 9, Small passed out union literature at the Center during that month. Shortly before May 30, as I have found, Small gave a union authorization card to Jones. Jones reported the matter to Johnson a few days later. On May 30 Small went into Johnson's office to pick up Small's payroll check. Johnson told Jones to sit down. Af- ter locking the door and drawing the curtain, Johnson told Small that Small could be discharged for handing out union literature on the job. Small denied to Johnson that Small had done this. Johnson rejoined that there was no use for Small to deny what happened because Jones had told Johnson that Small had given Jones union literature. Johnson then asked if Small was aware that Small was breaking regulations. Small responded in the negative but told Johnson that she was sorry and would not do it again.3s Some time after May 9 Johnson held a meeting of the RN's and LPN's at the Center. At this meeting Johnson explained the use of certain patient forms and how to com- plete them. At this time or later the forms were given to the employees, including Small and Watkins. Both of the latter took the forms home. On June 5 Small gave an affidavit to Jack Ruby, an agent of the National Labor Relations Board. Small had the forms with her at the time and mentioned them to Ruby as an example of the extra workload placed on em- ployees at the Center. Ruby said that he could not do any- thing about this Small did not show the forms to Ruby. On June 10 Skinner telephoned Small at the Center and asked Small if Small had taken the instant papers out of the Center. When Small acknowledged Small had the pa- pers, Skinner accused Small of stealing them. Small demur- red, saying she had permission from her supervisor, Marga- ret Reiss, to take the papers out of the Home. Skinner continued that a Federal agent had called Skinner and told Skinner that Small had taken papers which Small showed to the Federal agent. Small denied showing them to the agent. Small then detailed that Reiss had told Small that Small could do anything she wanted with the papers-this in response to Small's request to take the papers home at the time Small received them. Skinner then asked where the papers were and Small said they were in Small's car. Skinner told Small to go get them After Small did so, Skinner called back and asked Small what papers Small had found. Small named them, includ- ing the patient care plan. Skinner said that the latter was personal property which Small had taken without permis- sion and that something would have to be done about it. 35 These findings are based on the credible and undisputed testimony of Small in this regard 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Small then asked if Skinner intended to take Small to court, to which Skinner responded in the affirmative. Skin- ner thereupon proceeded to discuss whether Small was willing to fill out the forms and Small said she thought it was the job of the director of nurses and extra work for the LPN's. Small added that Small was a nurse and not a sec- retary. This completed this conversation. Shortly thereafter, Skinner called and told Small to leave the building immediately without finishing her shift.36 Small has not subsequently returned to work. Respondent asserts that Small was discharged after Skinner's inquiry into Small's unauthorized removal of the forms led to a "defiant attitude" on the part of Small. This attitude, says Respondent, coupled with a prior report by Johnson to Skinner about another act of insubordination by Small, brought about Small's termination. The record does not tell us what the claimed prior act of insubordination was. Nor was such act adverted to when Skinner discharged Small in the last telephone conversa- tion between them on June 10 As to the question whether Reiss gave Small "permission to take home any forms from the Center," Reiss denied specifically that she gave such permission. Reiss did not, however, deny that Reiss told Small that Small could do anything Small wanted to do with the papers, which is what Small told Skinner in one of the phone conversations on May 10. Moreover, Watkins also took the same type papers home from the Center, was asked to return them after Small's discharge, but never did so. No punitive ac- tion was taken against Watkins who indeed still had the papers in her possession at the time of the hearing-long after leaving Respondent's employ. In respect to Small's claimed defiant attitude, I find no palpable insubordination in Small's conversation with Skinner on the subject of whose responsibility it should have been to complete the forms. At no point in the con- versation did Small refuse to perform this work. I conclude therefore that the reasons advanced by Re- spondent for Small's discharge are pretextual and that the real reasons lie elsewhere. I find, rather, that Small was discharged because of her union activities and because she gave an affidavit to a Board agent. Thus, Respondent's opposition to the Union is evident from Johnson's threat to discharge Small on May 30 for passing out union literature in violation of what I have found to be an unlawful no-solicitation rule. This same confrontation between Johnson and Small indicates Respondent's knowledge of Small's union activities be- cause Small admitted to Johnson, in effect, that Small was guilty, as accused, of giving an authorization card to Jones; i.e.; Small ultimately stated it would not happen again.37 36 The findings as to these conversations are based on the credible testi- mony by Small in this regard as not essentially disputed by Skinner except perhaps with respect to the source of Skinner's information that Small had been, per Skinner, "passing" the papers "around " But even as to this, Skin- ner said that she thought her source was either an LPN or Johnson but that she really couldn't remember Her failure to recollect does not contradict Small's version that Skinner admitted to Small that Skinner heard about the matter from a Federal agent This agent was obviously the Board agent to whom Small had mentioned the papers 5 days before 31 While Johnson denied telling Skinner about Jones' report of this mci- The circumstance which prompted the series of telephone calls resulting in Small's termination on June 10 was the report to Skinner that Small had spoken with a Federal agent (Small did so when Small gave the Board agent an affidavit on June 5). I, accordingly, conclude that Respon- dent discharged Small because of Small's union activities and because Small provided the instant affidavit and that by discharging Small for these reasons and subsequently refusing to reinstate Small, Respondent has violated, and is violating, Section 8(a)(1), (3), and (4) of the Act.38 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V THE REMEDY The recommended Order will contain the conventional provisions for cases involving findings of interference, re- straint, coercion; refusal to reinstate economic strikers and maintenance of an unlawful no-solicitation rule in viola- tion of Section 8(a)(1) of the Act and unlawful discharge in violation of Section 8(a)(1), (3), and (4) of the Act. This will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action set forth below which Respondent will be required to take to remedy these unfair labor practices. Respondent will be directed to reinstate McManus, Brookins, and Small to their former or substantially equiv- alent positions without prejudice to their seniority or other rights and privileges. Each will be made whole for any loss of pay she may have suffered by reason of the discrimina- tion against her by payment to her of a sum of money equal to that she would have earned from the date of Re- spondent's unlawful refusal to reinstate her (McManus and Brookins) or her unlawful discharge (Small) less net earn- ings, if any, during such period to be computed in the man- ner prescribed in F W Woolworth Company, 90 NLRB dent, Johnson did not deny she reported to Skinner Small's admission that it had occurred 38 See D H Baldwin Company, 207 NLRB 25, 27 (1973), N L R.B v Melrose Processing Co, 351 F 2d 693, 698 (C A 8, 1965), Shattuck Denn Mining Corporation [Iron King Branch] v N L R B, 362 F 2d 466, 470 (1966), where the court held Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving In such cases, the self-serving declaration is not conclusive, the trier of fact may infer motive from the total circumstances proved Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book Nor is the trier of fact-here the trial examiner-required to be any more nail than is a judge [Foot- note omitted 1 If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal- an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference ROCK HILL CONVALESCENT CENTER 289 (1950), with 6-percent interest thereon as required by his Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, it will be recommended in view of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)) that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining, at all relevant times hereto, an un- lawful no-solicitation rule, Respondent has violated, and is violating, Section 8(a)(I) of the Act. 4. By refusing to reinstate Carol McManus and Joan D. Brookins, on and after May 9 or 10, 1975, and McManus again on and after June .11, 1975, because they participated in protected concerted activities, Respondent has violated, and is violating, Section 8(a)(1) of the Act. 5. By discharging and thereafter refusing to reinstate Brenda Small because of Small's union activities and be- cause she gave an affidavit to an agent of the National Labor Relations Board, Respondent has violated, and is violating, Section 8(a)(1), (3), and (4) of the Act. 6. The General Counsel has not proved that Respondent violated the Act except as found herein. Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 39 Respondent Rock Hill Convalescent Center, Rock Hill, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Service Employees International Union, Local 579, AFL-CIO, or any other labor organization, by discriminat- ing in regard to the hire or tenure of employment, or in any other manner in regard to any term or condition of em- ployment, of any of Respondent's employees in order to discourage union membership or union or other concerted activities. (b) Discharging employees for giving testimony under the Act. (c) Refusing to reinstate employees because they have engaged in activities protected by Section 7 of the Act. (d) Maintaining any rule or regulation prohibiting em- ployees from soliciting on Respondent's premises during nonworking time. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: 889 (a) Offer to Carol McManus, Joan D Brookins, and Brenda Small immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings she may have suf- fered as the result of her unlawful discharge or the unlaw- ful refusal to reinstate her in the manner set forth in "The Remedy" section of the Decision herein. (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 to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business at Rock Hill, South Car- olina, copies of the attached notice marked "Appendix." 40 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respon- dent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not found herein. 79 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 40 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence it has been decided that we, Rock Hill Convales- cent Center, have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights including the rights: To self-organization To form, join, or help unions 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To bargain collectively through a representative of your own choosing To act together for collective bargaining or other mutual aid or protection or To refrain from any or all such activities. Accordingly, we give you these assurances. WE WILL NOT interfere with your rights set forth above. WE WILL NOT refuse to reinstate employees because they have exercised such rights. WE WILL NOT maintain or enforce any rule or regula- tion which prohibits our employees from soliciting on behalf of any labor organization on our premises dur- ing nonwork time. WE WILL NOT discharge or refuse to reinstate our em- ployees because they join, support, or engage in orga- nizational activities in behalf of Service Employees In- ternational Union, Local 579, AFL-CIO, or any other labor organization. WE WILL NOT discharge or refuse to reinstate any employee because that employee has given testimony under the National Labor Relations Act. WE WILL offer to reinstate Carol McManus, Joan D. Brookins, and Brenda Small to their former jobs with full seniority and all other rights and privileges be- cause the Board has found that we refused to reinstate or discharged them because they engaged in union or other concerted activities. WE WILL make up all pay lost by Carol McManus, Joan D . Brookins, and Brenda Small, as the result of discharge or their failure to obtain reinstatement, plus 6-percent interest ROCK HILL CONVALESCENT CENTER