Martin Luther King, Sr Nursing Center

MARTIN LUTHER KING, SR., NURSING CENTER Martin Luther King, Sr., Nursing Center and Poor People's Union of America, Beverly Louise Reed, James Heard, and Gary Curry. Cases 10-CA- 12293, 12315, 12326, and 12399 July 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 11, 1977, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge 2 and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Martin Luther King, Sr., Nursing Center, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted, inter alia, to the crediting of testimony presented bh General Counsel's witnesses contending that it was improper for the Administrative Law Judge to credit testimony merely because the Respondent failed to produce its own witnesses to refute the former's testimony. We find no ment in the Respondent's contention. In crediting the testimony of the General Counsel's witnesses. the Administrative Law Judge not only relied on the demeanor of the witnesses, but also implicitly relied on the "missing witness" rule which states that. "where relevant evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so. without satisfactory explanation, the [trier of fact may draw an inference that such evidence would have been unfavorable to him." 29 Am. Jur. 2d § 178. See also Avon Convalescent Center, Inc., 219 NLRB 1210 (1975): Bricklayers Local Union No. I of Missouri, Bricklayers, Masons and Plasterers International Union, AFL-CIO (St. Louis Home Insulators, Inc.), 209 NLRB 1072 (1974). Inasmuch as the Respondent has offered no explanation as to why its supervisors did not testify at the heanng, we find the drawing of an adverse inference against the Respondent and the crediting of the General Counsel's witnesses was proper. The Respondent has also excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule 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 hase carefully examined the record and find no basis for reversing her findings. 2 'hile otherwise agreeing with the decision herein, Member Murphy disagrees with her colleagues' adoption of the Administrative Law Judge's finding that Supervisor Crane's question to Eva Brown as to how Brown was 231 NLRB No. 8 going to vote constituted coercive interrogation in violation of Sec. 8(ax I ) of the Act. Rather, Member Murphy finds the conversation. as testified to by Brown, neither coercive nor threatening. Indeed. Crane's attitude towards the Union, as evidenced by the conversation. was one of sympathy and support. In light of the above, Member Murphy would not find Crane's question to be violative of Sec. 8(aX I) of the Act. See Arvin Industries, Inc., 226 NLRB 925 (1976) (Member Fanning dissenting). DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: A hearing was held in this consolidated proceeding February 3, 1977 at Atlanta, Georgia. The charge in Case 10-CA-12293 was filed and served on the Respondent September 30, 1976; an amended charge was filed November 4 and served November 5, 1976. The charge in Case 10-CA-12315 was filed October 7 and served October 8, 1976; an amended charge was filed November 4 and served November 5, 1976. The charge in Case 10-CA- 12326 was filed October 13 and served October 14, 1976. An order consolidating cases, complaint and notice of hearing was issued November 24, 1976. The charge in Case 10-CA-12399 was filed November 12 and served Novem- ber 15, 1976. A complaint, order consolidating cases, and notice of hearing was issued December 23, 1976. The issues are whether or not the Respondent's supervi- sory staff interrogated employees, threatened reprisals for engaging in union activities, created an impression of surveillance of union activities, promised wage increases if employees rejected the Union, discontinued a policy of allowing employees to leave the nursing home during the lunch break because of union activities, discharged five employees because of union activities, and discharged a supervisor because he refused to discriminate against employees because of their union activities, in violation of Section 8(a)() and (3) of the National labor Relations Act, as amended. Upon the entire record in this case, including the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a Georgia corporation with an office and place of business, here involved, located at Atlanta, Georgia, where it is engaged in the operation of a nursing home. During the past calendar year the Respondent drived gross revenues in excess of $100,000 and purchased and received goods valued in excess of $10,000 directly from suppliers located outside Georgia. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The Respondent admits, and I find, that the Charging Party Union, Poor People's Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II1. UNFAIR LABOR PRACTICES A. Introduction Sunshine, Inc., took possession of the Martin Luther King, Sr., Nursing Center July 1, 1975. Robert Wagner, manager of all Sunshine nursing homes located in Georgia, became administrator. On August 1, 1975, Winifred Duke came aboard and served as assistant administrator until she was let go in November 1976. On August 17, 1976, Director of Nursing Alman was succeeded by Laura Farber. On September 15, 1976, Marvin Hand assumed the duties of administrator; he remained in that job 2 months. On the basis of record evidence and the Respondent's admissions I find that the above-named as well as the following persons were its agents and supervisors at relevant times: Virginia Birdsong, LPN supervisor; Addie Crane, LPN supervisor; Mary Hutcheson, LPN supervisor; Clara Moore, LPN supervisor; and James Heard, janitor leadman. In mid-May the Union launched an organization campaign among the Respondent's employees. Authoriza- tion cards were distributed and signed. Union employee meetings were held near the Home on Monday evenings from 7:30 to 8 p.m. Nursing assistant Joanne Chandler and janitor Marvin Whatley were designated temporary ste- wards in June, and as such they had conferences during the succeeding months on employee grievances and problems with Adminstrators Wagner and Hand, Assistant Adminis- trator Duke, and Directors of Nursing Alman and Farber. A petition was filed for a Board election, a hearing was conducted June 25, and an election was held September 23. B. Violations of Section 8(a)(1) 1. Assistant Administrator Winifred Duke. The com- plaint alleges that on June 15, 1976, Duke created the impression of surveillance of employees' union activities, and on the same date the Respondent discontinued its policy of allowing employees to leave the nursing home during lunch break. It seems clear that it was the Respondent's policy, before the advent of the Union, to permit nurses aides, and all employees, to take a 30-minute unpaid lunch break to use as they saw fit, including leaving the building, and some employees customarily went down the street to a restau- rant. It is also clear that the Home was criticized by the Georgia Department of Human Resources after an inspection in March 1976 because "residents requiring assistance with eating must wait long periods of time due to lack of sufficient numbers of staff on the floors at meal times." After that, the policy of allowing employees to leave the building was not changed, but an attempt was made to stop the practice of allowing most of the nurses aides to take their breaks at the same time, and the supervisors were given the responsibility for scheduling lunch breaks around the patients' mealtimes. Nevertheless, a followup inspection by the state authorities in August resulted in a report of continuing deficiencies, including poor nursing care and patient neglect, which included inadequate staffing at meal times. Administrator Wagner testified that, despite his efforts at corrections, it was not until January 1, 1977, that the state inspectors found no deficiencies in nursing services at the Home. Viewed against this background, the testimony of the General Counsel's witnesses in support of these allegations seems less probable than that of Assistant Administrator Duke. Moreover, the employee witnesses were inconsistent. The employees involved worked the 2:45-to- 1:15 p.m. shift; the food carts usually arrived on the floors at 4:45 or 4:50 p.m. and the patients were usually fed at 5 or 5:15. Nurses aide Beverly Reed testified that Duke came on the fourth floor during an occasion in May or June and said "there would be no going out of the building to eat lunch." At first, Reed said no one else was present, and then she said that a Mrs. Bradley protested there was no place in the Home to get anything to eat, and Duke responded, "she knew we weren't going out to get anything to eat, we were going to those meetings and that Mr. [Hosea] Williams did not run that building." Reed conceded that she attended practically all the union meetings which were held at a location near the home between 7:30 and 8 p.m., on her lunch breaks or days off. Nurses aide Barbara Whatley claimed to have been present on the occasion testified to by Reed, only she placed it in August, and said that Edwena Harden and a Mrs. Bracken were also present. Whatley agreed substan- tially with Reed that Duke said, "did we know we're not supposed to go out to eat." According to Whatley, however, when the employees protested they thought it was O.K. as long as the floor was covered, Duke told them, "at least, we'd go one or two at a time, not a whole group," and Duke did not mention anything about any meetings. The third witness was nurses aide Edwena Harden. She claimed to have been present along with a Mrs. Lewis, when Duke spoke to Barbara Whatley, on a day in August. Harden quoted Duke as saying, . . . we would not be able to go out on our break, one person would have to go, couldn't be two or three at a time . . . she said she wanted the patients to be fed first. Harden did not recall Duke's mentioning the meetings. In view of the apparent unreliability of this testimony, I credit Duke, whose testimony was more likely, to the effect that when she investigated one day around 5 or 5:10 p.m. she found only LPNs on the floors, the dinner carts unattended, and no trays given out. When five employees came back from break, she explained to them they could go on break before or after, but not during, patients' serving times. Duke was thus merely enforcing a company policy, established before the advent of the Union, of scheduling lunch breaks around the patients' meal times. Accordingly, I conclude that these allegations were not established by a preponderance of the credible evidence, and recommend that they be dismissed. 2. Administrator Marvin Hand and LPN Supervisors Addie Crane, Clara Moore, Mary Hutcheson, and Virginia Birdsong. The complaint alleges that Hand threatened employees with discipline if they engaged in protected concerted activities; Crane interrogated employees about union activities; Moore threatened employees with repri- sals for engaging in union activities; Hutcheson threatened 16 MARTIN LUTHER KING, SR., NURSING CENTER discharge for engaging in union activities; and Birdsong promised wage increases if employees rejected the Union. None of these supervisors testified. As the following employee testimony is undisputed, it is credited: Marvin Whatley testified that on a date he could not approximate before his wife Barbara was discharged (on October 25, 1976), he went to Director of Nursing Farber's office and protested Farber's alleged harassing of nurses aides, which Farber denied. The next day, Hand sum- moned him to Hand's office where, in the presence of Assistant Administrator Duke: He told me, why would I go into [Farber'sl office asking her all these questions, and stuff like that, and so I told him, that's because I am a steward, a temporary steward at the time trying to get everything straight- ened out, and he told me he didn't consider me as a steward, and he didn't want me going around asking nobody nothing, and if I did, he would take action against me. Nurses aide Eva Brown said that one day in August Crane, who was supervisor, asked her, in the dining room, whether she was going to sign, or vote, for the Union. Brown replied, "Yes," or that she was going to vote. Crane commented, "It would be nice if I did go ahead and vote, but she couldn't vote because she was an LPN." Edwena Harden testified that shortly after the cards were signed in June, during a discussion of the Union, Harden told Moore she intended to vote for it, and Moore responded, "she felt like I was sticking my neck out for voting for the Union . . . that we wouldn't stick together long enough to have a Union." Employee Beverly Reed testified that in July or August on the fourth floor elevator, her supervisor, Hutcheson, "said she heard that my name was on the firing list, and I said 'why' and she said 'they're going to get rid of everybody that's going to those meetings, and participating in the Union.' " Approximately a week before Reed was discharged Hutcheson said "something about it being common knowledge, that I was going to be fired." Beverly Reed also testified that about 2 or 3 weeks before her discharge, Birdsong told her at the nurses' station on the second floor, "that we didn't need a Union, the people didn't need a Union to get a raise, and that the LPN's had been promised a raise as soon as we got this business settled about the Union. I was going to get a raise when the LPN's got one," and that Reed responded that "it wasn't just the raise." Based on the above testimony, I find that Administrator Hand threatened to discipline Marvin Whatley for present- ing employee complaints and grievances to management, activity which the Board has held to be concerted activity protected by the Act; that LPN Supervisor Moore impliedly threatened Edwena Harden for voting for the Union; and that LPN Supervisor Hutcheson threatened Beverly Reed with discharge for engaging in union activities. In the absence of any evidence that Birdsong's I Stephens Produce Co., Inc. and Temple Stephens Company, 214 NLRB 131, 138 (1974). 2 Cf. Villa Sancta Anna Home for the Aged of the First Catholic Slovac Ladies Association, 228 NLRB 571 (1977). remarks to Reed were in conformity with any established wage policy of the Respondent, and as Birdsong directly connected a future raise with getting "this business settled about the Union," I find that it was an implied promise of benefit prohibited by the Act.2 I conclude that the above conduct constituted separate violations of Section 8(aX)(I). I cannot agree with the Respondent that Crane's interrogation of Eva Brown was uncoercive because she said "it would be nice," since, as found below, Crane's question obtained information upon the basis of which Brown was subsequently discriminatorily discharged. I therefore conclude that the interrogation was also a violation of Section 8(aX 1). 3. Janitor leadman James Heard The complaint alleges that on or about September 22 Heard, whose subsequent discharge is discussed below, threatened employees that the nursing home would close if the union campaign were successful. Heard himself testified regarding this allegation, to the effect that one Frund (Freund), the owner of the nursing home, visiting the facility on September 22, the day before the Board election, called a meeting at 4 p.m. which was attended by Manager Wagner, Administrator Hand, Heard, and, passing through, Assistant Administrator Duke. According to Heard, Frund spoke as follows: He told me that he knows that I was aware of what's going on, and I said "yes, I know, I was aware." About the Union. He said he was not going to have no Union in Martin Luther King Nursing Home, before he would have a Union in Martin Luther King Nursing Home he would close it, he would turn it over to another person, or he would move his patients to another home, and he said you go and tell them that. Heard testified that he then told all the employees in the housekeeping department, nine of them, that [Mr. Frund] said that before he'd have the Union in that nursing home he would sell it, he would drop it into somebody else's hands, he would move his patients to other homes, or to his other home, that he wasn't going to have no Union in Martin Luther King Nursing Home and nobody was going to run his business, tell him how to run his nursing home, and that was his words. Although Administrator Wagner's version of Frund's remarks differed somewhat, his testimony fell short of a flat denial of the critical elements of Heard's version and tended on the contrary to accord with Heard, overall. Heard's account of the instructions given him by Frund and his testimony that he passed the information along to the employees in the housekeeping department is therefore in my opinion substantially undenied. 3 I therefore find that Housekeeping Supervisor James Heard threatened employ- ees that the nursing home would close if the union 3 Assistant Administrator Duke claimed to have left the Frund meeting before any such remarks were made. Louise Carey, the only housekeeping employee to testify on this issue, was obviously confused. 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign was successful, and conclude that the Respon- dent thereby violated Section 8(a)(i). C. Violations of Section 8(a)(3) I. Discharge of Eva Brown, Joanne Chandler, Annie Dorsey, Beverly Reed, and Edwena Harden. The first four of these employees were discharged September 22, the day before the Board election, and Harden was discharged September 27, by Administrator Hand who, as stated, is no longer employed by the Respondent and did not testify at the hearing. All these employees had worked for the Respondent as nursing assistants for more than a year at the time of their discharges. All were union advocates, signed union authorization cards around mid-May 1976, and attended union employee meetings during their lunch breaks and days off. Moreover, the Respondent had reason to know about their union advocacy. Thus, as found above, LPN Supervisor Crane asked Eva Brown whether she was going to sign or vote for the Union and Brown told Crane she was; Chandler testified for the Union at the R case hearing and became a temporary steward and met with manage- ment representatives in that capacity. Annie Dorsey obtained the signature of LPN Annie Ruth McCommon, stipulated to be a supervisor, on a union authorization card. Beverly Reed indicated to LPN Supervisor Birdsong that she was a union supporter, and LPN Supervisor Hutcheson told Reed her name was on a firing list for going to union meetings and participating in the Union. LPN Supervisor Moore told Edwena Harden she was sticking her neck out voting for the Union. On September 22 Administrator Hand telephoned Reed at home and informed her she was terminated; when she asked him why, he hung up the phone. Reed called Director of Nursing Farber and asked her if she knew anything; Farber said yes, there was nothing she could do about it, but she would give Reed a good reference. Hand summoned Brown to his office that day and told her she was discharged for being late. Brown tried to explain she had to pick up her little girl at school, and then said she would try to make other arrangements, to no avail. Hand called Dorsey at home and said she was terminat- ed for tardiness and that seven other employees were also being terminated. Dorsey tried to tell him about the bus schedules making her late but he said "that wasn't his business." Director of Nursing Farber telephoned Chandler at home and terminated her for consistent lateness. Chandler reminded Farber she had explained the way her buses ran; Farber said "they had started their new policy, that nobody would come in late," but she would give Chandler a good reference.4 Edwena Harden was off duty between Wednesday, September 22 and Saturday, September 25. She worked Sunday, September 26. Hand called her into the office on Monday, September 27, and told her she was fired because "something had come up over the weekend, and I was off my floor." Harden protested that she had been off 4 To the extent that Farber may have intended an indirect denial that it was she and not Hand who discharged Chandler, I find, in the absence of a direct denial, that she discharged Chandler on Hand's instructions. Thursday, Friday, and Saturday, and nothing occurred on Sunday. Hand, however, "didn't want to hear any kind of explanation" and asked her to leave the building. Harden conceded she received a written warning September 22 for "harassing an LPN" but professed not to understand it. Brown, Chandler, and Reed admitted to habitual lateness, and claimed they had explained their reasons to Farber. Dorsey said she was late sometimes, but no supervisor ever mentioned it to her. Manager Wagner and Director of Nursing Farber both testified that all these employees were discharged for habitual lateness. Wagner said excessive tardiness had plagued the Home since his arrival there, and before. He weeded out some employees, but concentrated on trying to correct the bad habits of the rest by discussing the tardiness problem at supervisor and employee meetings. On August 3, 1976, Wagner posted by the timeclock and elsewhere a notice to the following effect: Subject: Tardiness and Absenteeism Review of timecards shows an unacceptable amount of tardiness and absenteeism. This is particularly true on weekends and holidays. Attached is a copy of the policy pertaining to tardiness and absenteeism which has always been in the Martin Luther King Sr. Nursing Center Operating Manual. Because of the burden being placed on conscientious and dependable employees by employees not so conscientious and dependable, enforcement of the policy is in order. With the above in mind, we express appreciation to all employees who report to duty when scheduled and on time. We hope that all other employees will take heed. The attached policy statement included the following: Any individual who does not have a reasonable excuse for failure to respond [to the work schedule] will be subject to discharge on the third such occasion. Any individual tardy without acceptable excuse three times in any given month is subject to discharge. Wagner continued that by September the situation had become impossible, and when he interviewed Hand for the position of administrator, he explained the problem of habitual tardiness. Hand was confident he could correct the problem, telling Wagner "one way or the other the employees would comply with the published schedules." One of Hand's first actions after he assumed the job September 15, 1976, was to review the timecards. He then told Wagner he intended to replace some employees with more reliable people. On September 22 Hand reported he had discharged eight employees for absenteeism and tardiness, and the next day Wagner reviewed the time- cards. They show, and I find, that Chandler had been tardy 60 times out of the last 62 days she worked; Dorsey was 18 MARTIN LUTHER KING, SR., NURSING CENTER tardy 28 of her last 38 days of work; Harden 22 of her last 45 days; Reed 25 of her last 45 days; and Brown 27 of her last 36 days. Farber testified that one of the first problems she became aware of after reporting for duty was the lack of control over employees' attendance, and she called attention to this problem in meetings with the employees on all shifts, stressing the importance of being on time or of notifying the Home if they could not be. She also posted a notice, on September 17, 1976, telling the nurses they must call in if they were going to be late or absent. According to Farber, she was told to give two or three warnings before taking action against any employee, but it was her policy to speak to employees orally, and to document deficiencies only one time. Reed is the only one of these employees Farber claimed to have given a written warning for excessive lateness. Although Reed denied it, I find that Farber did so on September 10. Farber said Hand did not discuss the tardiness and absentee problems with her, and did not consult her before executing the discharge of these employees, although he did call her into his office, showed her the timecards, and directed her to discharge the employees for absenteeism and tardiness, or he would. Farber objected, as she was aware of some of the employees' excuses and of their problems with the buses. However, he brushed her objections aside. Farber gave her opinion that Hand acted like a bull in a china shop, and said she would not have handled the problem the way he did; on the other hand, she felt that the methods she had employed for over a month, of "trying to engender a sense of loyalty and a sense of pride in them" had been unsuccessful, and his discharge of some of the employees "solved a lot of my problems" and she was glad to have them go. The factors favoring the General Counsel's contentions are as follows: (I) All the employees selected for discharge were advocates of the Union, and the Respondent knew it; (2) despite the Respondent's professed dismay over the prolonged habitual tardiness of its employees, it tolerated such behavior for a considerable period of time by four of them until the day before the Board election and by the fifth until shortly thereafter; (3) Reed was given no reason for her discharge and Harden was given a reason other than her excessive lateness; (4) the Respondent failed to follow its own posted procedures of issuing three warnings before discharge and, in any event, the posted procedure was different from the one Farber was told, that two or three warnings were sufficient before discharge; (5) the Respondent has been found to have committed unfair labor practices including threats to discharge employees for supporting the Union; (6) Administrator Hand's superior, the owner of the nursing home, made the ultimate threat, in Hand's presence and on the same day he terminated most of these employees, to close the Home rather than deal with the Union; and (7) Hand himself has been found guilty of interfering with employee rights protected by the Act. I must conclude that this formidable array of factors outweigh the Respondent's defense that the precipitative ," Louis Carey's testimony that Heard told her Duke ordered him to get rid of her. Whatley, and Searcy is discounted as I have found Carey to be a confused witness and, in any event, it would have been self-serving for Heard to tell Carey that. event was Hand's recent employment as administrator and that he gave Wagner and Farber excessive lateness as the only reason for the discharges. Accordingly, I find that the Respondent, through its newly hired administrator, Marvin Hand, seized upon the long-tolerated tardiness of these employees as a pretext for ridding the Respondent of known union advocates. I conclude that the Respondent thereby discriminatorily discharged Eva Brown, Joanne Chandler, Annie Dorsey, and Beverly Reed on September 22 and Edwena Harden on September 27, 1976, to discourage union activities, in violation of Section 8(aX3) and (1) of the Act. D. Discharge of James Heard The complaint alleges that the discharge of Janitor Leadman Heard, supervisor of housekeeping and laundry, on October 12, 1976, was caused by his refusal to discriminate against employees because of their union activities. The Respondent contends that as a supervisor he was not protected by the Act. Heard testified as follows: On August 20th, around five o'clock, on Friday afternoon, I was asked to go to Mrs. Duke's office and we usually have, like on a Friday, usually have a drink or two, Mr. Wagner would bring a bottle on Wednes- day, and we used to drink it on Friday, and at that time me and Mrs. Duke was setting there talking and having a couple of drinks, and I drank this because my supervisor asked me, you know. Mrs. Duke said that Marvin Whatley, Madeline Searcy, Louise Carey was the leaders of the Union at Martin Luther King, and also Miss Carey was the Number I person that worked with Mr. Williams, with Rev. Williams, also get rid of Louise, get rid of Marvin Whatley, and Madeline Searcy. .... so I told her that along with these three people, as long as anybody in that department is working and doing their job, that I'm not going to touch 'em. Heard also testified that on or about August 30 "Mrs. Duke said that Mr. Frund said anyhow if a Union come in there that I would go. ... I told Mrs. Duke that I would not fire those people .... " Assistant Administrator Duke denied Heard's testimony; she said she never discussed getting rid of employees with Heard as she could discharge employees herself if she felt they should be discharged. I do not credit Heard as against Duke as she was the more convincing of the two, and her testimony was the more probable. I believe he exaggerated an isolated incident, as she said, into a regular weekly drinking bout which he took part in only at her urging, in an attempt somehow to disparage her.5 The reason Hand gave to Heard for his termination in October was that his position was abolished.6 I credit Wagner that that was indeed the reason and that Heard's 8 Although Hand could well have also told Heard he was making too much money, as Heard testified, I do not credit Heard that Hand said there (Continued) 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory duties were taken over by the administrator. The new leadman janitor, Walter Gilbert, was a union member. Although he posted an employee warning notice as head housekeeper and once told Marvin Whatley to go home because he was late, Whatley conceded no one ever told him Gilbert had authority to send him home and the bookkeeper told him Gilbert had no such authority. Wagner credibly testified that Gilbert, unlike Head, was assigned a floor to mop and maintain regularly and possessed none of the statutory indicia of a supervisor. I therefore find that Heard's discharge was not caused by his refusal to discriminate against employees because of their union activities, and conclude that this allegation should be dismissed. IV. THE REMEDY In order to effectuate the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found, in view of the nature thereof, to cease and desist from infringing in any other manner on its employees' rights guaranteed by the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941). Having found that the Respondent discriminatorily discharged five employees, I also recommend that it be ordered to offer those employees immediate and full reinstatement to their former jobs or, if those jobs are no longer available, to substantially equivalent jobs without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings suffered by reason of the discrimination against them, plus interest at 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, Martin Luther King, Sr., Nursing Center, Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees to discourage membership in or support of Poor People's Union of America, or any other union. (b) Coercively interrogating employees about their union activities. (c) Threatening to discipline employees for presenting employee complaints and grievances to management; threatening employees with reprisals for engaging in union activities; or threatening to close the nursing home if a union campaign is successful. (d) Promising benefits to discourage support of the Union. (e) In any other manner interfering with, coercing, or restraining employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Eva Brown, Joanne Chandler, Annie Dorsey, Beverly Reed, and Edwena Harden immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its nursing home in Atlanta, Georgia, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges unfair labor practices not found herein, be, and it hereby is, dismissed. "had to be something between you and the [last] administrator for you to be getting this kind of salary," although Heard professed that he made his money working 7 days a week and his only concern was for the welfare of the patients. It is unlikely that Hand would make such a remark when Wagner, who Heard claimed was present, had been the last administrator. Here again, Heard seemed to slant his testimony to cast himself in the best light. I 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. I 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 WE WILL NOT discharge or otherwise discriminate against employees to discourage membership in or support of Poor People's Union of America, or any other union. WE WILL NOT coercively interrogate employees about their union activities. WE WILL NOT threaten to discipline employees for presenting employee complaints and grievances to management; threaten employees with reprisals for 20 MARTIN LUTHER KING, SR., NURSING CENTER engaging in union activities; or threaten to close the nursing home if a union campaign is successtul. WE WILL NOT promise benefits to discourage support of the Union. WE WILL NOT in any other manner interfere with, coerce, or restrain our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Eva Brown, Joanne Cas.ndler, Annie Dorsey, Beverly Reed, and Edwena Harden immediate and full reinstatement to their jobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileg- es. WE WILL make the above-named employees whole for any loss of earnings they suffered by reason of their discriminatory discharges, plus interest. MARTIN LUTHER KING, SR., NURSING CENTER 21