Danmor Company d/b/a Madison South Convalescent Center

DE)C1ISI()NS O() NAl IONAI LABOR REI ATl IONS BOARD Danmor Company d/b/a Madison South Convales- cent Center and Retail Clerks Union Local 1439, affiliated with the United Food and Com- mercial Workers International Union, AFL- CIO. Cases 19-CA-11072, 19-CA-11128, and 19-CA-11173 March 11, 1982 DECISION AND ORDER BY CHAIRMAN VAN 1)E WA I ER AND MI.MBFRS FANNING AND HUNTFI R On April 9, 1980, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Therefter, the General Counsel and Respondent filed exceptions and supporting briefs, and Respondent filed an answer to the Gen- eral Counsel's exceptions. On August 26, 1980, the Board issued an Order reopening the record and remanding' the proceeding to the Regional Direc- tor for further hearing. On June 16, 1981, Adminis- trative Law Judge Jay R. Pollack issued the at- tached Supplemental Decision in this case. Thereaf- ter, 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 and Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Supplemental Decision, and to affirm the rul- 'On June 20, 1980. Administrative Law Judge Rashury died Acciird- ingly, the case sas assigned to another aIdlinistratise law judge fir fur- ther hearing Respondent excepts to. among other things, the credibility rulings of Administrative Lass Judge Pollack It is the Board's established poilic; to attach great weight to an administrative lasw judge's credibility findings. insofar as they are based on demeanor However ill conlltested cases, the Act commits to the Bilard itself the power anid responlsibility oft deteriln- ing the facts as revealed by a preponderance of evidence arld the tBoard is not bound by the adminiistrative law judge's findings of facts, hut based its findings on a de nowr review of the entire record Sltandard DI)rr Wall Prmducts, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 3h2 (3d Clr I'51) Administrative Lauw Judge Pollack's credibility findings are based iii fac- tors other rtian demeanor. and il consoniance ssith the Boai;rd's p lihc set forth in Standurd Dry Uull Products, Inc. iupru, swe have irldependenltls examined the record il this case We find there is ino basis on the reciord in this proceeding for reversing his crcdibility determinlationrs or his find- ings of fact based thereon Administrative .aw Judge Pollack, im sec 1., par 3,3 of his Supple- mental Decisuon, reciting an earlier finlding of Administrative I.a5;5 Juldge Rasbury found that Johnson anid lIyoln sere discharged li order to hide the unlawful discharges of Jarsis and Frechburger In fact, AdmniistratisV Law Judge Rashury found that Jarvis and Frechirger wcre dischalrged ti hide the unlawful discharges of Jolhnsonl arid l yion Administrative Law Judge Pollack inadi ertentlN statcd that Carol Palmer applied for work on J;anuary 4. 19X80 rather thaii the cir recti year of 1979 260 NLRB No. 106 ings, findings,3 and conclusions of the Decision4 only to the extent not inconsistent with the Supple- mental Decision. ORDER" Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Danmor Company d/b/a Madison South Convales- cent Center, Spokane, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities or interests. (b) Labeling employees as "union agitators" in response to prospective employers' reference checks. (c) Discharging or otherwise discriminating against employees because of their union activities or interests. (d) Failing to replace licensed practical nurses, increasing its use of contract labor services, and re- fusing to consider job applicants for positions as li- censed practical nurses, for the purpose of dissuad- ing its employees from supporting the Union and/or for the purpose of dissipating the bargain- ing unit and undermining the Union's majority status. (e) Refusing to hire job applicants in order to discourage employees from supporting the Union. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: I We note that no exceptions .,ere filed to Administrative Law Judge Rashury's dismissal of the complailt illegatlio, that employees were un- lalwfully denied union representation during a disciplinary session. Ihe case 'sas reniallded on the issues of whethcr Respondent violated Sec 8Xa)(3) and (5) of the Act by failing to fill vacant unit positions with licensed practical nurse applicants i,, all attempt to dissipate the unit. con- tracitig out unit *,ork to undermine the Union's majority; and by failing and relusing to hire 13 allegedly qualified named applicants for unit posi- tilons [)ue to Admnilistratixe I ai, Judge Pollack's coFnclauiSir in his Supple menial Dlecision that Respondent did intenltioally and unlasfully dissi paite the uliti. we do not ;adpl Aii ldministrativse La Judge Rashury's dis- rissal of this part of the complatint 'We set fotrlh the pertiltlent pro:isillns of the Order iof Administrative I.ass Judge Rashurb's I)ecison, and the ()rder ,of Admilnistrative l.aw Judge I'ollack's Supplemenwal I),cion as oine Order for purpoises of sim- plificaltioni ail ease i f uiidcrtaidiing " Adtlllnlilstriti e I.aA Judge RahurrN stated. it sec V. 5, of his D)ci- siin. thail Rcspillndcet haid illatled tile Act "lHlB discharging and refus- I.g 1R Imcillte JualC JI slJohnsiinr Mlarcy 1.,oii. Juds Jarvis. and Glenda :re hurger. hcc . alie if their h1111 11 ;tll iitles" Jiudi Jarvis and (ilenda. F rebiurger scre rIot dt'ichat gcd 'I ,r their uniln aCt;Ities Rather, thee ,. crc disch;,rgedl , l order ti hide tle uanlas. ful discharges of Johlson ;,nd I.o,, W'i e Cnote anid correct tlis error 816 MADISON SOUTH CONVALESCENT CENTER (a) Offer to Judy Johnson, Marcy Lyon, Judy Jarvis, and Glenda Freeburger immediate and full reinstatment to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed. (b) Make Judy Johnson, Marcy Lyon, Judy Jarvis, and Glenda Freeburger whole for any loss of earnings each of them respectively may have suffered by reason of Respondent's unlawful dis- crimination against them in the manner set forth in that section of the Decision entitled "The Remedy." (c) Make Frances L. Frederick, Beverly Ann Riley, June K. Zimmerman, Russell K. Goo, Patty Ann Colbert, Carol Palmer, Vicky Renee Mostul, Jacquelyne Jean Tilton, Pamela Jowleen Row- berry, Theodore Q. Blasingame, and Teresa J. Bla- singame whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in the section of the Supplemental Decision entitled "The Remedy." (d) Offer the above-named employees immediate employment, subject to the conditions and limita- tions set forth in the section of this Decision and Supplemental Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and reinstatement rights as set forth in "The Remedy" section of the Decision and the Supplemental Decision. (f) Post at its Spokane, Washington, facility copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7In Ihe c.Inll thal tIhl, ()rdCr i, etnforced hi A JULdgCrmLnt of ai L niled States Courrl if Appeali . I he nlmocrds ii the rict realdig "Pl'i, cd h, ()rd r oft th Natli l.l I ahor RClatIU, I, loard ',hall r ead "i'o,ted I'lrr,ur - ani to I Juldgnirillt I Ihi Irlllted Strale Coiulrt t A[ipt.lc I lkrri ring ;al Order of the Nail[l.. i] I hhor Rclatl onir Boalrd " IT IS FURTHER ORDERED that the complaint be, and hereby is, dismissed insofar as its alleges an un- lawful refusal to hire John Eugene Storment and Shirley Kathleen Tock. 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 an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL. NOT discharge or otherwise dis- criminate against any employee for engaging in activities on behalf of any union. WE WILL NOT interrogate employees con- cerning their and/or their fellow employees' union activities. WE WILL NOT interfere with employees' Section 7 rights by referring to them as "union agitators" in response to reference checks from prospective employers. WE WILL NOT fail to replace licensed practi- cal nurses, increase our use of contract labor services, or refuse to consider job applicants for positions as licensed practical nurses, for the purpose of dissuading our employees from supporting Retail Clerks Union 1439 and/or for the purpose of dissipating the bargaining unit and undermining the Union's majority status. WE WILL NOT refuse to hire job applicants in order to discourage employees from sup- porting the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WtE wvi. offer Judy Johnson, Marcy Lyon, Judy Jarvis, and Glenda Freeburger immediate 817 DECISIONS OF NATIONAL L ABOR RELATIONS BOARD and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges previ- ously enjoyed and WE WILL make them whole for any loss of earnings, plus interest. WE WIL L make Frances L. Frederick, Bev- erly Ann Riley, June K. Zimmerman, Russell K. Goo, Patty Ann Colbert, Carol Palmer, Vicky Renee Mostul, Jacquelyne Jean Tilton, Pamela Joleen Rowberry, Theodore Q. Blasin- game, and Teresa J. Blasingame whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in the section of the Supplemental Decision entitled "The Remedy." WE WILL offer the above-named employees immediate employment, subject to the condi- tions and limitations set forth in the section of this Decision and Supplemental Decision enti- tled "The Remedy." The Union is the exclusive collective-bargain- ing representative of our employees in the fol- lowing appropriate unit: All full-time and part-time licensed practical nurses and graduate practical nurses em- ployed by the Danmor Company at the Madison South Convalescent Center, but ex- cluding all registered nurses, nursing assis- tants, dietary and housekeeping employees, physical therapy aides, laundry employees, maintenance employees, office clerical em- ployees, professional employees, administra- tors, managers, confidential employees, guards and supervisors as defined in the Act. DANMOR COMPANY D/B/A MADISON SOUTH CONVALESCENT CENTER DECISION STIA' ITIMENT OF THE. CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard by me in Spokane, Washington, on Sep- tember 18 through 21, 1979.' A charge was filed by Retail Clerks Union L ocal 1439, affiliated with the United Food and Commercial Workers International Union, AFL-CIO (hereinafter called the Union), against Danmor Company d/b/a Madison South Convalescent Center (hereinafter called Respondent) in Case 19-CA-- 11072. Additional charges were filed on February 16, 1979, by the Union against Respondent in Case 19-CA- 11128. Thereafter, an order consolidating cases, consoli- ' The relcxanlt .and significani evellts, %et forth hercinafter. occuitrred during the period from April 1978 through Janua;ll ry 1'971 Inlessi, olher- wise indicaed. All dalte hereinallier shall refer to this timnefranle dated complaint and notice of hearing issued on March 15, 1979. New charges were filed by the Union on March 5, 1979, against Respondent in Case 19-CA- 11173, following which a consolidated complaint and notice of hearing which incorporated all of the above- mentioned charges was issued on April 19, 1979. Addi- tional amendments were granted at this hearing. 2 The consolidated complaint alleges that Respondent violated Section 8(a)(5) of the National Labor Relations Act, as amended (hereinafter called the Act), by contracting out work, by calculating a course of conduct designed to dis- sipate the unit, and by refusing to hire qualified appli- cants. The discharge of four employees is alleged to be violative of Section 8(a)(3) of the Act and there are three specific acts alleged to be violative of Section 8(a)(1) of the Act-namely, interrogation, labeling of a former em- ployee as a "union agitator," and denying employees union representation at a disciplinary conference after a request for such representation had been made. Upon the entire record, including my observation of the demeanor of the witnesses and after giving due con- sideration to the briefs filed by the General Counsel and the Respondent, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a State of Washington corporation en- gaged in the business of operating convalescent centers in Spokane, Washington, and other locations. During the past 12 months it grossed in excess of $500,000 for per- formance of its services and during the same period pur- chased and caused to be transferred and delivered to its facilities within the State of Washington, goods and ma- terials valued in excess of $50,000 directly from sources outside said State, or from suppliers within said State which, in turn, obtained said goods and materials directly from sources outside said State. Respondent admits, and I herewith find. that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE I ABOR ORGANIZATION Respondent admits, and I herewith find, the Union to be, and at all times material herein to have been, a labor organization within the meaning of Section 2(5) of the Act. 111. ITHI A Il EGI l) UNFAIR l ABOR PRACTICEIS A. Background On May 8, 1978, the Union filed a representation peti- tion seeking an election among Respondent's service and maintenance employees which included nurses aides and 2 At I en request ilald s oth the agreemlent of all Ihe partiles the General Ct riustl filed a late exhibit A hich incorporated all of the aforemenitoned conlsolidated complaint. anenllded charge, and oral amendments to the icomplainl and appears in the formal file as (i C t xh 8 Counsel for both Respondent and the Charging Parts acknov ledged the exhibit as a true anld accutrate compilaltioll of the aIfioretllentionled consolidated tolmpl;ints allndl IllcindlTInc lts 818 MADISON SOUTH CONVALESCENT CENTER orderlies. On June 27, 1978, an election was held, which resulted in objections to the election filed by the Union. A second election in said unit is blocked pending the outcome of the instant proceeding. On May 15 the Union filed a petition in Case 19-RC-8892, seeking to represent Respondent's employees in the following described unit: All full-time and part-time licensed practical nurses and graduate practical nurses employed by Danmor Company at the Madison South Convalescent Center, but excluding all registered nurses, nursing assistants, dietary and housekeeping employees, physical therapy aides, laundry employees, mainte- nance employees, office clerical employees, profes- sional employees, administrators, managers, confi- dential employees, guards and supervisors as de- fined in the Act. On August 16 the Regional Director for Region 19 certified the Union as the exclusive representative of Re- spondent's employees in the heretofore described bar- gaining unit, which I now find to be an appropriate unit within the meaning of Section 9(b) of the Act. Collec- tive-bargaining negotiations in an effort to reach a collec- tive-bargaining contract covering the licensed practical nurses' bargaining unit heretofore described (hereinafter LPN unit) commenced on October 24 and have contin- ued at least through the end of January 1979. Two of the alleged discriminatory dischargees-Marcy Lyon and Judy Johnson-served as employee representatives on the Union's bargaining committee. Testimony principally set forth by employees Donald Nelson and Trudel Dean clearly established the follow- ing named employees to have occupied key supervisory or managerial positions with Respondent as follows: T. D. Mortimer-President T. D. Mortimer-Operations Manager 3 Grace Ellis-In-Service Instructor at Madison South from October 1976 until July 1978, and from July until February 1979 Director of Nursing Services Donald Nelson-Administrator at Madison South since October 1978 Elizabeth Dillingham-Administrator at Madison North but formerly employed as Administrator at Madison South immediately before Nelson as- sumed the position Betty Ellis-In-Service Director for Madison South from May 1978 until mid-January 1979; Betty Heinje-In-Service Director for Madison South immediately following the resignation of Betty Ellis in mid-January 1979. There is no conflict in the evidence that the heretofore named individuals in this paragraph had authority in the interest of Respondent to hire, fire, reward, or discipline other employees and I herewith find each of them to have been at all times critical to their participation in the events hereinafter to be discussed supervisors and agents tHarry Roger, ;lasumled the positlon of pr.rtir lsDon, manager for Re- spondent in Mal. 1979q hoeur.v r, rrudll Dealn has conllillnud ai, c(mptrol- ler of Resportndcnt of Respondent within the meaning of Section 2(11) and (13) of the Act. B. The Evidence 1. Regarding the 8(a)(l) allegations Grace Ellis, the director of nursing services during most of the critical period with which we are here con- cerned, was called by the General Counsel and testified extensively but was not cross-examined by Respondent's counsel, nor was she called by Respondent in the presen- tation of its case. Grace Ellis was charged with violating Section 8(a)(l) of the Act by interrogating an employee on or about September 8, 1978, concerning the employ- ee's and other employees' union or protected concerted activities. In the course of Glenda Freeburger's testimo- ny, she stated that the following occurred "about the middle of September," 1978. I just went in [Grace Ellis' office] and asked her if I could have a week off to go down to Florida and see my son. And we discussed that for a little while. And then she pointed to a newsletter she had, and she told me she was very disappointed in me. And I just asked her why. And she says, "Well, all this union activity that's going on," she said, "I've got two employees left and it looks like they're both giving me the run around." And I didn't understand what she meant, so I asked her and she said, "Well, you know about the union meetings?" And I said, "What union meetings?" And she said, "You're sup- posed to have a union meeting over at Perkins." And I told her, I said, "I didn't know nothing about it, and if I did, I wouldn't squeal on my fellow em- ployees." When asked if there was anything else said at that time Freeburger replied, "She just told me she was very dis- appointed in me." Respondent is further charged with violating Section 8(a)(1) of the Act in that Grace Ellis gave Glenda Free- burger a "poor employment recommendation" because she had engaged in union and/or protected concerted ac- tivities. In this connection, Virginia Garrity, a personnel clerk with St. Joseph's Care Center, testified that in con- nection with an employment application filed by Glenda Freeburger with St. Joseph's Care Center that she con- tacted Grace Ellis in connection with a routine inquiry of former employers. According to Garrity, "Mrs. Ellis told me that she was a very good worker. She was very kind to the patients and the patients liked her very much. She said that Glenda is very loud and that they had-she had a big mouth and they had counseled her that she wasn't out in the street, to be more quiet. And they said that she was a union agitator." When asked by the Ad- ministrative Law Judge to reflect on her answer and be certain that "union agitator" were the words used by Grace Ellis, the witness responded, "Yes, she did." When Grace Ellis was questioned by the General Coun- sel as to what she (Grace Ellis) might have stated to any prospective employer inquiring concerning Glenda Free- burger, she was extremely vague as to any specific inci- 819 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent or inquiry. When Ellis was asked specifically if she had told anybody that she (Freeburger) was a union agi- tator, Ellis replied, "The only thing I could have an- swered is she was prounion and that would have been all, but not that she was an agitator because she was not." Garrity further testified that Ellis had asked her, "if this could be kept confidential, and I promised her I would do this." Respondent, acting by its agent Don Nelson, is further alleged to have violated Section 8(a)(l) of the Act by denying employees Judy Johnson and Marcy Lyon union representation at a disciplinary meeting, even though union representation was requested by both Lyon and Johnson. The facts of this incident are not in serious dis- pute. Marcy Lyon testified that, on January 4 at approxi- mately 2:30 p.m., she was told by Unit Coordinator Beth Gaines that she wished to talk to her. They went into the charge nurse's office at which time Beth Gaines pulled out a counseling form. When Lyon saw the coun- seling form she told Gaines that she would like to call her union representative, and did so. At that time Donald Nelson came into the charge nurse's office and inquired as to what the trouble was. Lyon responded, "Beth has given me a counseling form, and I called my union representative." At that time Nelson advised Lyon that she was not entitled to union representation. At that moment Judy Johnson appeared in the charge nurse's office and asked if she was to be included in on this. Nelson invited her in and Lyon informed Johnson of the phone call to Katz, the union representative. At that moment Lyon was paged on the intercom system, but Nelson asked her to stay there and he would take care of it.4 When Nelson returned to the charge nurse's office, Judy Johnson asked him if the counseling form was going to result in disciplinary action. According to her testimony, Nelson indicated that it was and she asked for union representation, which Nelson denied, stating em- ployees were not entitled to union representation in the absence of a union contract. Nelson, Gaines, and John- son then proceeded to Nelson's office where Johnson was given her counseling form. The forms for both Lyon and Johnson had been prepared prior to the meeting and no changes were made in their content. She was given an opportunity to write her comments on it. She signed it, Gaines signed it, and then Johnson left the office. Katz testified that on January 10 at a collective-bar- gaining session the disciplinary issue was discussed, at which time Nelson acknowledged that he had informed the girls that it was a disciplinary session. Moreover, Grace Ellis testified that the written counseling forms are used as a basis for progressively disciplining employ- ees and that employees can and have been discharged for receiving too many counseling forms. Nelson did not dis- pute the facts as generally related to by Lyon and John- ' Kalz tesilfied that he caused L yorn to hbe paged over the intercom upon his arri al at the cotinalescent center in response to . o, n's call Nels,on ippeared in response to the L',on page and, when Katzl inforlled hint of the purpose of hi., isit, Nelsonl asked himt to aill Grahicki. Re- sps.ndenlll' c ilsel (irahlcki intformcd Katz that the womienl wV re riot erl- titled to nliloll reptresentalion syince it ,a', a "CoIIuilltg" rather than a disciplinary interxte . alid relused to permri particip.alon h, Kiat Kale then left the facility son concerning this incident and specifically did not deny the testimony of either Katz or Johnson that he (Nelson) had referred to this "counseling session" as a "disciplinary session." 2. The incident leading to the discharges of Judy Jarvis and Glenda Freeburger Judy Jarvis and Glenda Freeburger were both nurses aides working on the first floor on January 24. Free- burger was employed on April 4 and Jarvis in October. The testimony of the three witnesses who testified re- garding what was said 'Jarvis, Freeburger, and Divine-differed slightly, but is of no material signifi- cance because Respondent presented no accurate version of what was said and based its reasons for the discharges on the employees' loud tone which it claimed was dis- turbing to the patients and on the anger or inability of the employees involved to get along. According to Jarvis, who had to leave early that day because of an ap- pointment, she passed Freeburger in the hall while both were engaged in passing out the trays during the lun- cheon hour and called out Freeburger. Freeburger re- plied, "Just a minute." Jarvis then asked her if she would pick up her l's and O's (I's and O's stand for input and output which had to do with the charting procedure of patients). Freeburger responded, "What did you say?" And Jarvis, who was passing on down the hall deliver- ing her tray replied, "I'll catch you when I get back." According to Jarvis, she was probably as much as 30 feet away from Freeburger during the exchange. Free- burger's account of the exchange was very similar to that of Jarvis; however, Freeburger testified that she had replied, "[A]ll right, I will, if I've got time at the end of the day." Freeburger's reply was apparently not heard by Jarvis or Divine, because Divine approached Jarvis immediately thereafter and said that she would pick up the l's and O's. Neither Jarvis nor Freeburger regarded the exchange as being unusual or excessively loud, and they were good friends at the time and have remained good friends since the incident. Sue Divine, a registered nurse and a team leader, generally confirmed the testimo- ny of Jarvis and Freeburger and further testified that the girls were speaking in a normal speaking voice. During the exchange, Divine was seated at the nurses station performing charting. When questioned as to what happened after the ex- change between Jarvis and Johnson, Divine replied, "Trudel Dean was standing at the end of the counter at the nurses station, and she turned to me and asked if I was going to do anything about it, and I didn't know what she was referring to, and she made a gesture that directed my attention to Judy and Glenda, and I got up and went to Judy and I said I would take her 'I's' and 'O's' for her and she said, no, she'd make time and make sure she had it done before she left." Divine further testi- fied that Trudel Dean did not inquire as to the girls' names nor did she appear visibly upset. Divine testified that she was never asked by anyone in management what she may have heard or seen in connection with the ex- change. 820 MAD)ISON S()'L1t C ()N\ AI [ SC'FNF C-EN IE R Trudel Dean was unable to recall any of the conversa- tion between the two nursing assistants involved, but tes- tified that, after speaking to Charge Nurse Sue Dixirne. she "literally ran upstairs and went into the administra- tor's office. Mr. Grabicki was there and Mr. Nelson was there and I told them that there was another shouting match going on downstairs and that something needed to be done right away about that." According to Dean, she returned to the first floor and there observed Grace Ellis "going down the hall with one of the people involed." Grace Ellis' testimony was extremely vague regarding the incident. She could not remember who had first in- formed her of the incident; the nature of the fight or ar- gument; how she had learned that it was Judy Jarvis and Glenda Freeburger who were involved; and the extent of her investigation or just what she may or may not have said to either of the individuals involved. She thought that she had made the decision that they should be discharged, but she acknowledged that she had not reviewed their personnel files before the discharge. Nelson's testimony was equally unspecific but again he thought, "between my attorney and myself and Trudel Dean we discussed the implications of taking any action on all individuals concerned" including "Sue Divine, and the two nursing assistants, Glenda Freeburger and Judy Jarvis." This was in contrast to Grace Ellis' testimony that she made the decision to discharge the two nursing assistants. 3. The discharges of Judy Johnson and Marcy Lyon Judy Johnson was an LPN who had been hired at Madison South Convalescent Center in January 1976. and Marcy Lyon, an LPN, hired on May 11, 1978. John- son was active in the Union's organizational campaign and both Johnson and Lyon were members of the nego- tiating committee after the Union was successful in xwin- ning the election in the LPN unit. The incident giving rise to their discharge on January 24 occurred on the day before. Johnson, who had just returned to work after an illness which had lasted several weeks, was the only LPN assigned to the first floor and had been caring for a patient that day who was in critical condition and not expected to live. Unknown to Johnson, Lyon had been assigned to "catch up" on all the charting and had been so engaged for about 2 weeks. As Johnson entered the charge nurse's office where Lyon and Divine were seated, Lyon asked Johnson to remember and chart on Tabert, the critically ill patient. Johnson replied, "I always do my charting," and with that she turned and left the room. As Johnson passed outside the door, she overheard Lyon tell Sue Divine that she was "God damn sick and tired of doing all the charting." Lyon, ap- parently realizing that her remark to Divine had been overheard, sought Johnson out in the medication room and told her, "Judy, look, I'm tired. I've been doing all the charting. We were told in a meeting that we would be fired if we did not keep it up." Johnson explained that she had been helping Dr. Van Veen and that one of her patients was dying. Lyon tried to explain that she had not intended to imply that Johnson was not working. When Johnson offered to do some of the charting. Lyon declined stating that she had been instructed to do it her- self. At the end of the exchange. in apparent response to Johnson's expressed desire just to be left alone. Lyon ut- tered an obscene expression and walked out of the room. At that point Betty Heinje, the in-service director, ap- proached the two women and, in an apparent attempt to relieve the tensions told them, "I..ook girls. I know you're up tight from all these people being here in the facility. We're all up tight getting ready for this inspec- tion. Marcy. you've worked II days in a row, you're tired Judy, I know you don't feel well. Let's just forget it. Everything will be all right." Lyon testified that Betty Heinje, Betty Owens. a ward secretary, and Liz Walker, a vward secretary, were the only other employees within hearing distance and that the nearest patient was approxi- mately 50 feet away. Divine testified that she had been working with Marcy L yon at the nurses station during the initial exchange, but that she had not been able to hear the conversation that occurred in the medication room, although she de- scribed it as being only a short distance away. "Well, the nurse's station is at the intersection of the two halls, pa- tient care and patient rooms, and the conference is kind of around the corner down one end of the hall. It's just around the corner. It's a separate little room." On further questioning she explained that the medication room was probably about 25 feet away from the nurses station. Testimony from other witnesses indicated that there was no door to the medication room. The following morning Lyon and Johnson apologized to each other for their behavior on the previous day. At approximately 2:30 on January 24, Lyon was called into Grace Ellis' office and was informed by Donald Nelson that she was being discharged for fighting. Lyon was not given an opportunity to explain what had happened the day before and, despite her protestations, Nelson told her that she had been previously warned and counseled sev- eral times before and that "it'll all come out at the hearing." Johnson had left work early in order to assist employee Liz Walker with an emergency concerning Walker's daughter and she was advised by Nelson tele- phonically that she too had been fired. Johnson was nei- ther asked to explain nor given an opportunity to explain what had occurred. Trudel Dean testified that she was first informed of the incident in a discussion with Barbara Barton, a super- visor from the Respondent's Yakima facility who was temporarily at Madison South, who informed her that, "Marcy Lyon and Judy Johnson had a very loud argu- ment downstairs," that a verbal confrontation had taken place in back of the nurse's station, that Lyon had com- plained about Johnson's job performance, that Lyon was upset with Johnson, and that she (Barton) had advised the employees to work it out. Dean testified that she re- layed this information to Nelson and recommended that the women involved be terminated. According to Dean, Nelson replied that he would consult with Grace Ellis, that the attorney would have to be consulted, and that there had been previous incidents of arguments between the two individuals. Dean testified that later that after- noon she had called Respondent's attorney, Grabicki, and that Grabicki, Nelson, and possibly Grace Ellis had DECISIONS OF NAIIONAI. LABOR REIL.AlIONS BO()ARI) discussed the situation and "the decision was made that we had people who did not conduct themselves accord- ing to our policies. They were infringing on patient's rights. They were arguing among each other, and that they be discharged." However, despite repeated requests by counsel, Dean was unable to relate any specific state- ments that were made by any of the participants and there is no indication that anyone else was consulted other than possibly Barbara Barton. Donald Nelson's account of the incident was far from precise and was lacking in detail and specificity even after having been cautioned by the court that he was not being very specific and that this was his opportunity to articulate his version of the incident. He stated that it was probably Grace Ellis and Betty Heinje who had re- ported to him, "We had an altercation down there. A physician has told us about it." Nelson related that he was told that "an altercation had happened at the nurs- ing station on first floor . . . and they were talking to each other quite loudly in fact, almost to the point of shouting." When pressed as to who had reported this in- formation, Nelson was unable to answer specifically and replied, "Well, the people reported to me. Yes, that's what I was told." Nelson recalled that there was a meet- ing on January 24 with Grabicki and Trudel Dean wherein it was decided to investigate the situation. When questioned as to what investigation had taken place before the decision to discharge was reached, Nelson re- plied that a physician (Dr. Van Veen) was interviewed as well as all personnel in the area. Later, Nelson recant- ed and admitted that Dr. Van Veen may have been inter- viewed for the first time after the women were dis- charged. (A file memorandum in Lyon's personnel file indicates that there was a telephone conversation be- tween Dillingham and Dr. Van Veen on January 24 at 5 p.m.-which would have been after the women involved were notified of their discharge-indicating that Van Veen had "heard some nurses arguing in first floor . on January 23, 1979. He heard something about .... " Nelson first testified that he had interviewed Barbara Barton and Barbara Townsend on January 24 in the presence of Grabicki, but later corrected his testimony to state that he had obtained written reports from Town- send and Barton on the afternoon of January 23. (The written statements of Townsend and Barton were never produced at the hearing and neither Townsend nor Barton, although still in the employment of Respondent at facilities other than the Madison South, was called to testify.) While Dean was of the opinion that the decision to terminate Johnson and Lyon had been made on Janu- ary 23, Nelson was of the opinion that the decision had not been made until on the afternoon of January 24. Grace Ellis testified that her first knowledge of the January 23 incident came in a meeting attended by Gra- bicki, Nelson, and Dean shortly after the luncheon hour on January 24. At that time she learned Johnson and Lyon had been "fighting in the unit" and that they had previously been counseled on a similar situation and it was decided that they should be discharged. Ellis testi- fied that after the decision she and Nelson walked out of the main office into her office where they paged Marcy Lyon and informed her that she was being terminated. Ellis stated that Nelson did the talking and that she did not participate in the conversation. There is no indication that either Marcy Lyon or Judy Johnson was given an opportunity to explain what had actually occurred. Respondent also contends that both Johnson and Lyon had previously been counseled and the January 23 inci- dent was merely the culmination of their unsatisfactory performance. The January 4 counseling incident which both Johnson and Lyon received has heretofore been re- lated in connection with the failure of Respondent to permit the employees to have union representation. This counseling form stemmed from criticism by Beth Gaines, a charge nurse under whom Lyon and Johnson worked as LPNs, and appears to have been a response by Gaines because both Lyon and Johnson had been critical of Gaines and her inability to handle her job, and this criti- cism had been reported on several occasions to repre- sentatives of management. According to the testimony of Lyon,-which was not disputed by Betty Ellis, one of the management representatives to whom the LPN's had complained-Betty Ellis, "asked Judy and myself had anything improved on the floor. And we had to honestly tell her, 'no, it had not.' And she said, 'Well, I have been working with Beth, and to be honest with you, I must agree with you, that she's not able to handle it."' Al- though Betty Ellis testified on behalf of Respondent, she did not deny having made such a remark to Johnson and Lyon regarding Beth Gaines. There was also an incident in June 1978 which result- ed in a verbal counseling by Administrator Elizabeth Dillingham for employees Lyon, Johnson, and Connie Gillespie (see Resp. Exhs. 7 and 10, and the brief type- written counseling form dated June 29, contained there- in). This incident apparently stemmed from a conversa- tion in the charge nurse's office on the first floor during which Marcy Lyon was complaining to Judy Johnson because she felt the Union had not worked hard enough to win the election in the service and maintenance unit. (The election in that unit had just been lost a few days before.) The testimony supports the fact that Lyon talked rather loud during the discussion, but it was rela- tively brief when Johnson walked away and refused to be further involved. So far as can be determined, Connie Gillespie did not participate. However, all three employ- ees were reported to Dillingham by Betty Ellis and each received the verbal counseling as noted in their person- nel files. There is nothing in the counseling form to indi- cate that the employees were informed that a repetition of the incident would result in discharge.' 5. Respondent's failure to hire LPNs The General Counsel contends that Respondent delib- erately failed to hire and/or replace LPNs following the certification of the licensed practical nurses' unit. This 5There was aln idditinal incident concerning Judy Johnson and a nurses aide named Rita Pasquini, aboult vhich there w.as con'siderable tes- timony However, because this incident ,was not listed or given as a reason by Respondent foir the discharge of Jlhnsoin. I have not deemed it sufficientIl relcant to the issues to he cil forlh in great detail However. if the testinlonl of Johnsoli and L afrr. Baauso is to be accepted at facve Nalue. then it would appear that Respotndenll was seeking to "franme" some foirrt if justifiahle basis to get rid of Johnson 822 MAIDIS()N S()lI'T CON\VAI F-SC'NI CE:NT:ER she contends was done for reasons proscribed by the Act and with the intention of deliberately dissipating the unit in an effort to rid itself of the Union. To support this al- legation she presented undeniable evidence that the number of I PNs declined from eight in May 1978 to two--each of vwhom was on a leave of absence--in Janu- ary 1979. However by the summer of 19'9 there were four LPNs on the payroll. The General Counsel also presented the application forms for 13 applicants who ap- plied for positions with Respondent during the period from September 26 through February 9, 1979. (See G.C. Exhs. 3a through 3m.)6 Additionally, the General Counsel points to the testi- mony of Larry Buchanan. a former nurses aide employed by Respondent, who testified to three conversations he engaged in with Grace Ellis. According to Buchanan, the first conversation occurred just prior to the election in the LPN unit at which time Buchanan asked Ellis if she were going to replace the two LPNs who had re- cently resigned. According to Buchanan, Ellis responded by saying that sort of thing was out of her hands, that it was not her responsibility, and that she had nothing to say about it. According to Buchanan, the next conversa- tion with Ellis occurred toward the end of September. This conversation concerned an LPN named Ruth Jones who had just been discharged by Respondent for sleep- ing on the job. According to Buchanan, the telephone conversation occurred, "I suppose now you are going to find an LPN to replace her with?" Grace said, "Prob- ably not. I don't know, I don't think so." I said, "Well now, we've got a very interesting situation don't we? We're down to four, we're down to four LPN's where there used to be eight. And it's really getting down to the wire, because Denise is pregnant, you know she will be leaving, and there is every probability that Connie will be leaving. That will leave two. That isn't much of a unit." She agreed that it was not much of a unit. The next conversation between Buchanan and Ellis occurred when he called and asked her if he could return to work and she replied, "Absolutely not." When Buchanan stated, "Why not? You have openings and I'm a good aide, you know that." Ellis then replied, "That's not the question." 7 According to Buchanan, when he filled out the application and presented it to Ellis, she stated, "You know I can't hire you. I've gotten instructions. I cannot hire you." When he inquired as to who had given the instructions Ellis replied, "I'll give you three guesses." When Buchanan guessed Mortimer, Ellis replied, "You've got it." With that they both laughed and Bu- chanan told her, "I heard about Judy and Marcy, and as 6 The General Counsel was prepared to present the testimon> of each of these applicants concerning the fact that the) had applied for positions as licensed practical nurses with Respondent. However, after receiving the testimony of four of these sitnesses-i e., Vickie Mostul, Beverly Riley, Francis Frederick, and Theodore Blasingame--further testimony from other applicants was denied on the basis that it swould be cumulative and that nothing further would be gained inasmuch as Ihe application of all 13 prospectime employees had been received in evidence The General Counsel made arn offer of proof as to what each of the remaining appli- cants wsould have testified to if permitted to testify, which appears in the record beginning on I 24, p 619, through I 23, p 622 7 Buchanan had resigned on October 31 in order to go into business for himself but had fiound it more diffiicut than expected and vwanted to return to v ork far as I'm concerned you're in for the time of your lives." Buchanan testified that Ellis replied, "I know it. I think it's a horrible mistake, but I didn't have anything to do with it. That's all Mr. Nelson, and I really don't have anything to say about anything around here anymore." Analysis and Conclusions I. The 8(a)(1) allegations As has been noted earlier herein, an election had been held in the service and maintenance unit which would have included Glenda Freeburger's classification. In Sep- tember when the alleged conversation between Free- burger and Grace Ellis occurred, the parties were await- ing the outcome of the unfair labor practice in order to resolve the question of when to hold a new election. The testimony of Glenda Freeburger regarding Grace Ellis' efforts to seek her out regarding union activity among the employees stands unrefuted in the record. As related by Freeburger, there were no direct inquiries by Ellis, however, the subtleness was not missed by Freeburger otherwise she would never have replied, "I didn't know nothing about it, and if I did, I wouldn't squeal on my fellow employees." Such subtleness betrays Respondent's efforts to obtain information regarding the employees' union activities and as such interfered with, restrained, and tended to coerce the employees in the exercise of their Section 7 rights. Respondent's argument that this allegation is barred by Section 10(b) of the Act is errone- ous. The interrogation occurred in mid-September. The charge relating specifically to the wrongful discharge of Freeburger and Jarvis was filed on February 16, 1979 (well within the 6 months time limitation). The com- plaint need not be restricted to the precise allegations of the charge. So long as there is a timely charge the com- plaint may allege any matter closely related to or grow- ing out of the charged conduct, or related to the contro- versy which produced the charge, or which relates back to or defines the charge more precisely.8 I shall find that Respondent-through the conduct of its supervisor, Grace Ellis-wrongfully sought information from Glenda Freeburger in violation of Section 8(a)(1) of the Act. Virginia Garrity testified that Grace Ellis had labeled Glenda Freeburger as a "union agitator" when she (Gar- rity) called Madison South to obtain a reference check on Freeburger. Such labeling of employees would have a natural tendency to impede and interfere with an appli- cant's employment opportunities. Such interference amounts to blacklisting and has been held by the Board to be a violation of Section 8(a)(1) of the Act. I shall find Respondent to have interfered with, coerced, and restrained Freeburger in the exercise of her Section 7 rights when Grace Ellis told Virginia Garrity of St. Joseph Care Center that Freeburger was a union agita- tor. See Steere Broadcasting Corporation, 158 NLRB 487, 496 (1966). ' I .R. I oni a .filing ( irnpan3., 36(0 I S 301 (1959: .Natio al l.ic- orice (ompanri .N RB. 309 U S 350 (1040)1 and N LR.R l Kohier Co(tpauti' 22( () 2d 1 3(7th Cir 10553 823 I)[lCISI()NS ()1 NA I()NAI. L Al()R RE .AI()IONS B()ARI) The evidence is clear and unchallenged that, on Janu- ary 4 when Gaines and Nelson sought to present Judy Johnson and Marcy Lyon with derogatory counseling forms, they were apprised that it was a disciplinary ses- sion. However, the counseling forms had been prepared in advance and the employees were rather routinely handed the forms and given an opportunity to express their version of the incident or note their c omments on the forms. There is no evidence to indicate that this was an investigatory session. In two rather recent decisions.9 the Board appears to have distinguished between an investigatory interview that may lead to disciplinary action and an interview where the disciplinary action to be taken is a Jait accom- pli and the employer is merely informing the employee of his or her "shortcomings" and the action taken by the employer. As the Board said in the Texaco case, supra: It is clear on the record before us that. at a time prior to the meetings here in question, Respondent had decided to take specific disciplinary action against the five employees in this case. Moreover, it is clear from a reading of each of the letters men- tioned above that Respondent intended to and did treat both the written notice of disciplinary action and the meetings during which they were tendered as intrical parts of the disciplinary process. Like- wise, the uncontroverted evidence herein demon- strates that no defense offered by the employees who were summoned to the aforesaid meetings, or by any representative speaking in their behalf, would have deterred Respondent from its disciplin- ary decisions. There is no evidence that Respondent needed or desired to obtain admissions of misconduct by the employees disciplined, nor can such a purpose be inferred from the evidence. As previously men- tioned, the Administrative Law Judge concluded that all employees were afforded an opportunity to explain or defend themselves. This offer, however, was not designed to obtain information to support Respondent's discipline. Rather, it constituted an es- sential part of the communication process during which an effort was made by Respondent to deter- mine whether the employees understood the reasons for disciplinary action, their concurrence therewith aside. Whether called "counseling" as Respondent urges, or by some other term, such conduct does not demonstrate, nor are we persuaded, that Re- spondent went beyond the parameters established in our Baton Rouge decision so as to warrant the pro- tection accorded employees by Weingarten. Accordingly, we hold that the employees in this case were not entitled to representation at the disci- plinary meetings here in question, and, therefore, that Respondent did not violate the Act by compel- ling their presence at those meetings without benefit of the representation they requested. Baron Rouge atulr Works Company. 246 NLRH 995 (1979); and Texaco. Inc. 246 NI RB 1021, 10)22 (1979) The facts of the instant case would appear to be identi- cal to those with which the Board was concerned in the l'exaco case, supra, and I shall accordingly dismiss this aspect of the complaint. 2. The 8(a)(3) allegations The Respondent defends its actions of discharging Judy Johnson and Marcy Lyon on the employees' viola- tion of one of the rules listed as a dischargeable offense in the personnel policies booklet. (Resp. Exh. 5 at pp. 28 and 29.) The specific rule involved was No. 18-"Fight- ing or Other Evidence of Inability to Cooperate with Fellow Employees." (See termination forms contained in Resp. Exh. 7-personnel file of Marcy Lyon-and Resp. Exh. 10-personnel file of Judy Johnson.) Yet much of the vague, indefinite, unspecific testimony of Respond- ent's witnesses was concerned with the "patients' rights" having been violated. ' The testimony of Respondent's witnesses regarding the investigation of the incident between Johnson and Lyon was confusing and not convincing. Dean first testified that she learned from Barbara Barton that "Marcy Lyon and Judy Johnson had a very loud argument downstairs." According to Dean she re- lated this to Nelson and commented that it was "an in- fringement of patients' rights," but failed to explain which patients, if any, had heard the argument or how she had come by such knowledge when there was no in- dication that Barton had made such a report to her. Dean contended that the decision to terminate Johnson and Lyon was made on January 23 at a meeting among Dean, Nelson, and "possibly" Grace Ellis. Nevertheless, according to Dean, Grabicki, Respondent's attorney, spent considerable time in the facility on January 24 "talking to employees who overheard the confrontation." However, Liz Walker, the ward secretary, and Betty Heinje, the in-service director, each testified that they did not speak to anyone from management concerning the incident until after Lyon and Johnson had been dis- charged. Nelson's testimony was equally lacking in specificity and clarity. Nelson testified that it was probably Grace Ellis or Betty Heinje who informed him that a physician (Dr. Van Veen) had told them of an altercation down there. Nelson recalled a meeting on January 24 with Grabicki in which it was decided "to investigate the situ- ation." (This in contrast to Dean's testimony that the de- cision to terminate was made on January 23.) A memo in Lyon's personnel file (Resp. Exh. 7) confirms a tele- phone conversation between Dillingham and Dr. Van Veen on January 24 at 5 p.m. (which was after the two LPNs had been notified of their discharge). " "' While I can see some relationship between the two rules, the absence of some comment regarding "patients' rights" on the termination forms would seem to indicate that this was an afterthought and not part of the original reasoning by Respondent for the discharges 1" The document admitted into evidence was difficult to read, but merely indicates that Dr \'Van Veen had "heard some nurses arguing in first floor medication room on 1/2 /79 He heard something about 824 MADISON SOUTH CONVALESCENT CENTER Grace Ellis claimed that her first knowledge of the in- cident came in a meeting attended by Grabicki, Nelson, and Dean after the noon hour on January 24. Ellis could not recall whether or not she had been asked what her feelings or recommendations were regarding the dis- charges. Although Ellis denied that she conducted any investigation regarding the incident. Sue Divine testified that she was asked by Ellis if she (Divine) knew any- thing about the conflict between Johnson and Lyon "concerning Mr. Tabert's chart." Divine then reported that she had heard Marcy tell Judy to make sure she had charted on Tabert, and Judy said she would and then left. Divine said later she had heard Barbara (Barton) suggest that "Marcy go put her arm around Judy and say that everything's o.k., just kind of try and make it up." The union activities of both Johnson and Lyon were well known to Respondent. Both employees had re- ceived better than average evaluation reports prior to the advent of the Union. Johnson had been selected as em- ployee of the month and employee of the year. While both employees had been counseled regarding a June in- cident, this could very well have been motivated more because of the subject matter of their discussion (the Union) rather than any commotion or disturbance it may have caused. 12 Moreover, in contrast to the reason given for the discharge-inability to cooperate with fellow em- ployees-the testimony is quite clear that Johnson and Lyon were good friends and were quite capable of coop- erating with one another. The totally inadequate investigation of the January 23 incident prior to the decision to discharge Johnson and Lyon, the inconsistent reasons advanced for the dis- charges, the total failure to interview either Johnson or Lyon regarding the incident, the minimal disturbance created as testified to by Sue Divine, and the well-known active union participation by Johnson and Lyon have convinced me that the reasons advanced for the dis- charges of Johnson and Lyon were pretextual and the real reason was because of their union activity. I find that Johnson and Lyon were discharged in violation of Section 8(a)(3) and (1) of the Act. The Freeburger-Jarvis discharges were an obvious at- tempt to give added emphasis to rule 18 with the hope or desire of masking the Johnson-Lyon discharges. Their conversation-which appeared to be such a startling event to Dean-went totally unnoticed by their immedi- ate supervisor who was working at the charge nurse's office directly in front of the place where the incident occurred. Divine did not regard the conversation as un- usual or other than normal. However, because it oc- curred at a time when the Johnson-Lyon incident was being "investigated" or "considered" it provided a con- venient mask to hide the illegal discharges of the union activists-Johnson and Lyon. I believe this incident was seized upon by Respondent to give an "aura of legality" to the illegal discharges of Johnson and Lyon. As best reflected by the evidence, the incident was very minor and insignificant There is no evidence that there was an " Connie (illespie recels ed the idenlilal counseling and there is aih,. lutely no eidence thal ihe partlicpail ed in u0 sa Iw the toIierslltll i other Ihan his inlg heen il tht Sanie lweoll " ilh Jihlllnii. aldl 1 s1io inability of the two employees involved to cooperate with one another. The contrary is true-both employees testified they were good friends and frequently visited each other outside working hours. I shall find the dis- charges of Freeburger and Jarvis to have been in viola- tion of Section 8(a)(3) and (1) of the Act. 13 3. The 8(a)(5) allegations The essence of the General Counsel's allegations with regard to the 8(a)(5) violation is that Respondent deliber- ately, and with the intent of dissipating the bargaining unit, failed and refused to hire qualified LPNs since on or about September 8. The proof unmistakably shows a gradual diminution of the employees in the LPN unit. The record is also clear that between September 26, 1978, and February 9, 1979, Respondent received applications from 13 individuals who were licensed practical nurses. However, the con- clusion the General Counsel wishes to be drawn from these two established facts is highly speculative in view of Respondent's credited evidence. Both Donald Nelson and Grace Ellis testified they were under instructions from Trudel Dean to hire LPNs. Nelson was under instructions to reduce the contract labor expense. '4 Numerous advertisements seeking to hire LPNs were placed in local newspapers by Respondent. Contacts with "sister" facilities were made in an effort to have any unwanted or unneeded LPNs referred to Madi- son South. Respondent did hire a few registered nurses during the critical period and the evidence is clear and convincing that the duties of the RNs and the LPNs were nearly identical and interchangeable. ' The evi- dence is also quite clear and convincing that RNs were much more available and the number of applications from RNs were running nearly four to one over the number of LPN applications. The use of contract labor was not a new procedure for Respondent. While it is true that the use of contract labor was heavier during this particular period of time, in my opinion it stemmed from Respondent's primary concern of getting the facility in a position to pass in- spection by the State of Washington Department of Social and Health Services. ' It was this intense preoccu- pation with getting the facility prepared for its next in- spection that caused several supervisors from sister facili- ties to be working at Madison South." In my opinion it i While I heliese the real reason for Ihe discharges f I reebhurger and Jar Is toI ha e been an effirt Ito mask the illegal ds charge, If Johntsonl and 1.)on, as prel iusl indicated herein. Grace Illhs , as at Ieast 'upl- to Iou if I ildia F reehurger's union actsi it 5 I_PN colnlract labor cost Respondent 52 per hour more than rm- ploiee or pa)roll lahbor in Ihe same classification " The RNs hai e recelied more extenri e training and are qualified in ,ome areas of rendering mredicatlln sthich the I PN, are nllt qualified to admni l ter Hlt, e.er the salaries If RN,, %ere generall' a little greater ti th l se t )i LP Ns. "ilt he MNidi o ( l S.Olth ficilit had rci',ed setcrail iIspectlIIns h) the Slate I)epairtnlqlll Of I eaIth Sert iccr arid 't ere threa tened with a loss of thel Iicense Illnless col itid tlns t erc drast call ,n impr - ed Fheir next Il- pecltIil ils. las tI*p at'led in lati Jatliars (or earl Fehruitr! 1V74 Itirhara iBartoiit itarhira I ol ,itd, anid (c aroli n Ctochran si re all inmpltiled at ilther fa.cilile pcratlci h5 I);lnnir Compano, and "ere %e.llmlil i. h I dlll hlClaC t lime t 51 li, 11 1r SOttlh 1 dirig thisl criticrl l Period 825 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD was also the major concern of Grace Ellis who had the responsibility of interviewing and hiring the LPNs. Grace Ellis took the easy way out and turned to contract labor to fill needed replacements because it was the expe- dient thing to do and allowed her more time to devote to her primary task of getting ready for the inspection. Moreover, the proof does not show that the applicants were totally ignored. While Grace Ellis could not re- member the specifics on each of the applicants, her testi- mony generally supports the fact that one of the appli- cants whom she might have desired to hire could not be contacted by telephone; some of the applicants were un- willing to work irregular hours or required a specific shift; others were lacking long-term care experience; S and still others were deficient in one area or another which indicated they were not qualified employees even though they may have had their license as a practical nurse. '9 The General Counsel relies primarily on a4lexander' Restaurant and Lounge, 228 NLRB 165 (1977), affd. 586 F.2d 1300 (9th Cir. 1978), wherein the Board and court found respondent to have violated the Act by "unlawful interrogation of prospective employees" and "the out- right refusal to hire individuals whose background indi- cated potential union adherence." However, these factors were not shown to exist in the instant case. The General Counsel has not shown one scintilla of evidence to con- nect the failure to hire LPNs with union animus on the part of Respondent. Nor has there been any showing that Respondent questioned or sought in any manner to ascertain the attitude of the applicants toward unionism. This is not a case where a respondent has been shown to have a strong antiunion attitude. While the evidence sup- ports, and I sincerely believe, the propriety of finding discriminatory discharges and some wrongful questioning (as heretofore found), nevertheless these transgressions were not so outrageous and pervasive as to totally tar- nish every act of Respondent. Any such inference ar- rived at "must be based upon evidence, direct or circum- stantial, not upon mere suspicion." Cedar Rapids Block Co., Inc. and Cedar Sand and Gravel Co. v. ,.L.R.B., 332 F.2d 880, 885 (8th Cir. 1964); Kings Terrace Nursing Home and Health Related Facility, 229 NLRB 1180 (1977). The General Counsel is required to prove a case by a preponderance of the evidence and this she has failed to do in connection with the alleged 8(a)(5) violation. I shall recommend dismissal of this aspect of the com- plaint. IV. ITHLI REM N-1I) Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ' Tllhis term ,as unlder,,tood to he the dilllTelnc blectil c hospltall ex- ptrienctc and conallesclent homle expericlce '9 [he unit was lneser Iltall., dissipaled As anll hbc' he dclelrlllnned from the record there wert four l.'Ns Io Rspolidenlt is palylll t thlie time of the hearing Having found that Respondent unlawfully discharged Judy Johnson, Marcy Lyon, Judy Jarvis, and Glenda Freeburger and failed to reinstate them, I shall recom- mend that Respondent offer to each of them immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. I shall also recommend that Respondent make them whole for any loss of earnings suffered as a result of the discrimination practiced against them by payment to them a sum of money equal to that which they nor- mally would have earned as wages from the date of their termination to the date of said offers of reinstatement, less net earnings during such period. Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F W. Woolworth Company, 190 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). CONCLUSIONS OI LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interrogating employee Glenda Freeburger con- cerning her and/or her fellow employees' union activi- ties, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By referring to Glenda Freeburger as a union agita- tor in response to a telephone call from a prospective employer, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(l). 5. By discharging and refusing to reinstate Judy John- son, Marcy Lyon, Judy Jarvis, and Glenda Freeburger because of their union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The following is an appropriate bargaining unit within the meaning of Section 9(b) of the Act: All full-time and part-time licensed practical nurses and graduate practical nurses employed by Danmor Company at the Madison South Convalescent Center, but excluding all registered nurses, nursing assistants, dietary and housekeeping employees, physical therapy aides, laundry employees, mainte- nance employees, office clerical employees, profes- sional employees, administrators, managers, confi- dential employees, guards and supervisors as de- fined in the Act. 7. All other allegations of the complaint not specifical- ly found hereinbefore to be violative of the Act are to be dismissed. [Recommended Order omitted from publication.] 826 MADISON SOUTH CONVALESCENT CENTER SUPPLEMENTAL DECISION STATEMENT 01 THE CASi JAY R. POIt.ACK, Administrative Law Judge: On April 9, 1980, Administrative Law Judge James T. Ras- bury of the National Labor Relations Board (herein called the Board) issued his Decision in the above-enti- tled proceeding (JD-(SF)-100-80), and, on the same date, the case was transferred to and continued before the Board. The Administrative Law Judge found that Respondent had engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act, as amended (herein called the Act), and recommended that Respondent take certain steps to remedy the unfair labor practices found. Howev- er, the Administrative Law Judge recommended that the remaining allegations of the consolidated complaint be dismissed, including the allegation that Respondent had violated Section 8(a)(3) and (5) of the Act by the follow- ing conduct: failing to replace vacant unit positions with licensed practical nurse applicants in an attempt to dissi- pate the unit; contracting out unit work to undermine the Union's majority; and failing and refusing to hire 13 al- legedly qualified named applicants for unit positions. Thereafter, Respondent and the General Counsel filed timely exceptions and supporting briefs Respondent also filed an answering brief. On August 26, 1980, the Board issued an Order re- opening the record and remanding the proceeding for further hearing before an administrative law judge' for the purpose of taking evidence only as to whether Re- spondent violated Section 8(a)(3) and (5) of the Act by the conduct set forth in the allegations described above The matter was heard by me in Spokane, Washington, on March 17, 1981. Upon the entire record, from my observation of the demeanor of the witnesses,2 and ha'ving considered the post-hearing briefs, I make the following: FINDINCS 01 FACr I. THE: ALI EGED UNFAIR I ABOR PRACTICi S A. Background and Issues On May 8, 1978, the Union filed a representation peti- tion seeking an election among Respondent's service and maintenance employees which included nurses aides and orderlies. On June 27, 1978, an election was held under the supervision of the Regional Director for Region 19 of the Board. Timely objections to the conduct of the election were filed by the Union. A second election in the service and maintenance unit has not been held due to the pendency of the instant unfair labor practice charges. On May 15 the Union filed a petition in Case Due to the dealh of Administrative l.a" Judge RashurN. Ihe .cad ¥, remanded to anorlher adminisratlr, la" judge 2 he onl wultnesse% 1o testif 5 beforce me vere t, i Ihe Ihl 13 named appl- Calrts for emlplomerit as licensed practllcal rlursc Nolne olf Ihe *n lll"rees who testified before Adminlsirati\e Iau Judge RasburN w'ere re.alled toi testify The credlchilit findings herein are hased o( in m rexle ,ffI lle record eviden e and the inferenes i lrl, dra'.ll Ilhcrefroml Sece II Rancho .ltfart, 235 Nl RI 4b8. 470 (1107.) 19-RC-8892, seeking to represent Respondent's employ- ees in the licensed practical nurse unit at issue herein: All full-time and part-time licensed practical nurses and graduate practical nurses employed by the Danmor Company at the Madison South Convales- cent Center, but excluding all registered nurses. nursing assistants, dietary and housekeeping em- ployees, physical therapy aides, laundry employees, maintenance employees, office clerical employees, professional employees, administrators, managers, confidential employees, guards and supervisors as defined in the Act. On August 16, the Regional Director certified the Union as the exclusive representative of Respondent's employees in the above-described bargaining unit, found to be appropriate within the meaning of Section 9(b) of the Act. Collective-bargaining negotiations in an effort to reach a collective-bargaining contract covering the li- censed practical nurses' bargaining unit described above (LPN unit) commenced on October 24 and continued at least through the end of January 1979. The consolidated complaint does not allege that Respondent failed to bar- gain in good faith during negotiations. The General Counsel contends that, following the cer- tification of the Union as the exclusive bargaining repre- sentative in the LPN unit, Respondent attempted to evade its obligation to bargain with the Union by failing to hire replacements for vacant LPN positions in an at- tempt to dissipate the LPN unit. The General Counsel further alleges that, in order to avoid its obligation to bargain with the Union, Respondent contracted out unit work by using the services of nursing agencies rather than hiring LPNs and refused to hire 13 allegedly quali- fied named applicants for LPN positions. Respondent does not deny that the number of LPNs in its employ de- clined from eight in May 1978 to two-both of whom were on leaves of absence-in January 1979.' However, Respondent contends that its failure to hire LPNs result- ed from external conditions beyond its control. In sup- port of this argument Respondent presented evidence that its primary concern was to upgrade the facility so that it would not lose its license to operate in the State of Washington. Rather than hiring LPNs, Respondent hired registered nurses (RNs) and utilized nurses from contract labor agencies. The General Counsel and Re- spondent agree that the critical issue herein is the Re- spondent's motive for hiring RNs and utilizing contract labor rather than hiring LPNs. B. The Decline in the Number of LPNs In May 1978, at the time of the filing of the represen- tation petition in the LPN unit, Respondent employed eight LPNs, seven full time and one part time. During the 6-month period from the election through January 1979, the number of LPNs in Respondent's employ de- creased to two, both of whom were on leaves of ab- sence. During the same time period, Respondent's com- 1J Ihe sillmllll r ,1 It)7'). a.lld a.i the tIlnlC OF Ic he nil m al hearing hterill. hire , 'i r btn,,i i i I'Ns In R(t ' t, f Itli+ r p'rl lf l 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plement of RNs ranged from a low of 7 to a high of 15. There was extensive evidence, that with minor excep- tions, LPNs and RNs performed virtually the same duties for Respondent. During this critical time period, Respondent was pre- paring for an inspection by the State of Washington Department of Social Health Services. The Department of Health Services had threatened Respondent with the loss of its license unless conditions improved by its next inspection scheduled for late January or early February 1979. In preparing for this inspection, Respondent had some supervisors from sister facilities spend considerable time working at the Madison South Convalescent Center. Concurrent with these events, as found by Administra- tive Law Judge Rasbury, Respondent discharged nurses aides Judy Jarvis and Glenda Freeburger, both members of the Union's bargaining team, on January 24, 1979, in violation of Section 8(a)(3) and (1) of the Act. On that same date, Respondent further violated Section 8(a)(3) and (1) of the Act by discharging LPNs Judy Johnson and Marcy Lyon in order to hide the illegal discharges of Jarvis and Freeburger. Further, Respondent engaged in the following conduct in violation of Section 8(a)(l) of the Act: interrogating employees concerning their union activities or interests; and labeling employees as "union agitators" in response to prospective employers' refer- ence checks. In support of its contention that Respondent sought to evade its obligation to bargain with the Union, the Gen- eral Counsel relies on the following uncontradicted testi- mony of Larry Buchanan, a former nurses aide. 4 Just prior to the August 1978 election in the LPN unit, Bu- chanan had a conversation with Grace Ellis, then Re- spondent's director of nursing services, in which he asked Ellis whether she intended to replace two LPNs who had recently resigned. Ellis responded by saying that sort of thing was out of her hands, that it was not her responsibility, and that she had nothing to say about it. Buchanan commented that it did not look like Ellis was trying to replace those LPNs and Ellis agreed with that observation but said she, personally, had nothing to do with it. During September 1978, Buchanan asked Ellis if she were going to replace an LPN named Ruth Jones who had just been discharged for sleeping on the job. Ellis replied, "Probably not. I don't know, I don't think so." Buchanan said, "Well now, we've got a very inter- esting situation don't we? We're down to four, we're down to four LPN's where there used to be eight. And it's getting down to the wire, because Denise [another LPN] is pregnant, you know she will be leaving, and there is every probability that Connie [an LPN] will be leaving. That will leave two. That isn't much of a unit." Ellis agreed that it was not much of a unit. 4I credit Bluchanan's tesiimny (irace Fllis. formerly Respondentclls di- rector of nursing services, was called to teslify by the General Cotunsel ais an adverse 'ritmess and Bwas nhot questioned Oin this mlatter RespondentI did not ask any queslitns Otf [llis ;Ird she "as not recalled to delni tlis testimony Fromr the failure to recill Ellis concernillg thes milttiert.s. I draw the infereilce that her lestiriloll otluld nolt haIl hbeen11 fai rabl e lo Respondent See Martin, Iuther Kirng. Sr, \'urulng ( enter, 21 Nl R13 15, fn I (1977) Buchanan resigned from Respondent's employ on October 31, 1978. Thereafter, in January 1979, he called Ellis seeking to return to work. Ellis told Buchanan that he could "absolutely not" return to work. When Buchan- an stated, "Why not? You have openings and I'm a good aide, you know that," Ellis then replied, "That's not the question." Several days later, Buchanan filled out a job application and presented it to Ellis. Ellis said, "You know I can't hire you. I've gotten instructions. I cannot hire you." Buchanan asked who had given those instruc- tions and Ellis replied "I'll give you three guesses." When Buchanan guessed Mortimer (Respondent's presi- dent), Ellis replied, "You've got it." With that both Bu- chanan and Ellis laughed and Buchanan said, "I heard about Judy [Johnson] and Marcy [Lyon], and as far as I'm concerned you're in for the time of your lives." Ellis replied, "I know it. I think it's a horrible mistake, but I didn't have anything to do with it. That's all Mr. Nelson [Respondent's administrator] and I really don't have any- thing to say about anything around here anymore."5 Ellis told Buchanan that she was unhappy with her job and that she intended to find another job. She said she was upset that she did not have a regular staff. Buchanan commented on the number of contract service nurses and the lack of employee LPNs. When Ellis agreed that there was a lack of LPNs, Buchanan said, "Well, you've got a hell of a bargaining unit here now. You lost your last 2 nurses, you can negotiate forever with what you've got left, which is nothing." C. The Failure To Hire the 13 Allegedly Qualified Job Applicants The General Counsel contends that Respondent's re- fusal to hire any or all of the 13 LPN applicants was part of a calculated and deliberate scheme to avoid its obliga- tion to bargain with the Union by dissipating the LPN unit. 6 The General Counsel further contends that Re- spondent's animus is aimed at the Union rather than the individual applicants. Respondent contends that its fail- ure to hire the 13 applicants for LPN positions was due to "objective nondiscriminatory criteria and circum- stances and was not for the purpose of dissipating the bargaining unit or undermining the Union's majority." The criteria for LPN hiring as testified to by Grace Ellis were possession of a valid Washington State license, long-term care experience as a licensed employee, and, if an individual had graduated before 1965, a certificate that he or she had taken pharmacology. Although indi- cating that there might be other criteria, Ellis could recall no other criteria. Ellis testified that she could not independently recall the reasons for the failure to hire any of the 13 applicants. However, she identified her I lihe failurc to rehire Buchanllan las, notr alleged as a siolialion of the Act ardli is rlot befor e ei on reiTllild "'I' I 13 allegedls qualifid applicants for iunit poritiors and date' of ilpliticat ioIn are Franci.r I Frederick. 9 20 78. liecerl. Ann Riley. IO) 18 78 June K Zinmilerrimal 11 02 78; Russell K (itoo. II-27 78: Patts Ann Colbertl 12 28 78 John IluigerC Storrnclnti. I 1)5 79 Carol Palmer. I 1)4 79 \Vlck RenKee Mrltul. I ()8 7(9 Jalquelvn Jean 'lillon. I 21 79; PaImela Joleen Ro hberry. I 31 79, Iheoldore () ilBlsiuganic. 2 -1)-79 lerres, J lilsiigar.im 2 (8 791 .and Shlirl, Kalhcilen lt.ik 2 0)9 79 828 MAI)IS()N S()L1lt C()N\'ALi SCII Ct'N 'I ER written remarks on their job applications which gave ab- breviated reasons for not hiring nine of the applicants traunc" L. t'red#ric'k, an LPN, applied for work at Re- spondent's Madison South facility on September 26, 1978. No reason was offered for why Frederick was not hired except that Ellis noted that she had not inter- viewed Frederick. Ellis could not recall why Frederick was not inter.iew ed Beverly Ann Rileyv, an LPN, filled out an application for employment on October 18, 1978, and was inter- viewed that same date by Ellis. Riley testified that she told Ellis that she could work any shift, and that she had worked in a hospital before, but did not give medica- tions. Thereafter, Riley had no contact with Ellis but was subsequently dispatched by a contract service agency to work at Madison South as an LPN where she passed out medications. Ellis could not recall why she did not hire Riley. Respondent in its brief, relying on Ellis' written remarks on the job application, contends that Riley was not hired because she had no experience in giving medications and was rather unkempt. Respond- ent further argues that at the time of Riley's application no serious staffing problem existed. Finally, Respondent argues that Riley's experience was insufficient. June K. Zimmerman, an LPN, applied for employment on November 2, 1978. Zimmerman had received clinical training at Madison South under the supervision of Ellis. Ellis told Zimmerman that there were no positions open during the shifts for which Zimmerman sought work. 7 Ellis told Zimmerman that she would be contacted if anything in her desired timeslot opened up. However, when Zimmerman contacted Ellis later to again inquire about a job, Ellis told Zimmerman that the applicant would not be hired due to her lack of experience. Ellis could not recall why Zimmerman was not hired but her notes indicated that Zimmerman wanted full-time work. In its brief Respondent contends that Zimmerman was not hired due to her lack of experience. Russell K. Goo, an LRN, applied for employment on November 27, 1978. Goo testified that, at the time of his application, he was willing to work all hours and had nursing experience. Further Goo testified that he had geriatric training. Ellis offered no reason for not hiring Goo but said she was unable to contact him by telephone (presumably for an interview). Goo acknowledged that he was looking for employment and could have missed Ellis' call. In its brief Respondent contends that Goo lacked sufficient experience for employment. Party Ann Colbert. an LRN, applied for employment on December 28, 1978. Ellis testified that Colbert prob- ably was not hired because she had a back injury. Col- bert credibly testified that, at the time of her interview with Ellis, Ellis did not indicate that Colbert's back injury would prohibit her from being hired. Rather, Ellis told Colbert that she would be hired. Colbert was not later contacted. In its brief, Respondent contends that Colbert was not hired because she concealed the exist- ence of her back injury and because of the injury itself. 7 My revles of the record indicate, that positions were aatlahbl during the shilfts for wuhich Zimmerman appiled Respondent is utiltzirng nurses from contracdt labor agenclCes for thrse shitis Joh, Eugene Stormnent applied for employment on Jan- uary 5, 1979, hut had not worked as an LPN since 1974. Storment was in the process of renewing his license at the time of his application. Ellis noted on the job appli- cation that Storment did not have a current license. The General Counsel apparently argues that Storment could have obtained a license in time to be hired by Respond- ent. Respondent argues that Storment's disqualification from hire is patently obvious. Carol Palmer. an LPN with more than 20 years' nurs- ing experience, applied for employment on January 4, 1980. Palmer was interviewed by Ellis at the time of her application and told that she would be contacted. Palmer testified that, after Ellis failed to call, she attempted to call Ellis four times. Ellis never returned Palmer's calls. Ellis testified that she was interested in hiring Palmer. but that when she tried to contact Palmer by phone no one answered. Palmer credibly testified that someone was available to take phone messages at all times but that she received no messages. Ellis never explained why Palmer was not hired immediately or why Palmer was not contacted by mail. Nor did Ellis explain why she called Palmer only once. Respondent contends that Palmer was not hired because of the lack of a telephone and lack of long-term care experience. Vicky Renee Mostul applied for employment and was interviewed by Ellis on January 8, 1979. Mostul in- formed Ellis that she had worked previously with geriat- ric patients as a student nurse and that she would work any shift. Ellis told Mostul that Respondent did not have an opening at that time but would have an opening within a couple of weeks because of "high turnover." Ellis told Mostul that she would call the applicant as soon as there was an opening. However, Mostul was not later contacted. Ellis testified, after reviewing the job ap- plication, that Mostul was not hired because of the lack of long-term care experience as an LPN. Jacquelyne Jean Tilton was an LPN when she applied for employment on January 23, 1979. Tilton had 5 years' nursing experience and indicated that she was available for full-time work. Ellis could offer no reason for not hiring Tilton except that she had not interviewed Tilton. Ellis offered no reason why she had not interviewed Tilton. Respondent contends that Tilton was not hired due to a lack of long-term care experience. Pamela Joleen Rowberry, an LPN, applied for employ- ment on January 31, 1979. Ellis testified that, after re- viewing Rowberry's application, Rowberry was not hired because she had been dismissed from another hos- pital for excessive absenteeism. Rowberry testified that she was interviewed by Ellis and told that all day-shift positions were filled at the time. Approximately 2 weeks later, Rowberry was working at Respondent's Madison South facility as a contract services employee during the day' shift. Rowberry also worked the other two shifts during her assignment of approximately 3 weeks at Madi- son South. Theodore Q. Blasingame and his wife, Teresa J. Blasin- game, both LPNs, applied for employment on February 8, 1979. Neither Blasingame was interviewed by Ellis. Teresa Blasingame testified that she attempted to contact 829 DIECISIONS OF NAII()NA. I.AB()R REItATIONS BOARD Ellis for an interview but was unsuccessful in doing so. Ellis offered no reason for not hiring the Blasingames. She testified that at the time of their application for em- ployment she was very busy with the upcoming state in- spection. Respondent contends that Mr. Blasingame was not hired due to a lack of experience and that Mrs. Bla- singame indicated a refusal to work irregular hours. Shirley Kathleen 7bck, an LPN, applied for employ- ment on February 9, 1979. Tock did not testify. Accord- ing to Ellis' remarks on Tock's job application, Tock did not appear for an interview. There is no evidence to con- tradict these remarks. D. Respondent's Defense Respondent's defense must be considered in the light of the General Counsel's prima facie evidence. Grace Ellis, Respondent's director of nursing services from July 1978 until February 1979, called as an adverse witness by the General Counsel, was not examined or recalled by Respondent. My review of the record indicates that Ellis was unable to recall most matters and seemed to be eva- sive and reluctant to testify. 8 Ellis testified that she was under instructions from Donald Nelson, Respondent's ad- ministrator, to hire LPNs and, in fact, told to hire any qualified applicant. She testified, however, that hiring LPNs was secondary to her concern for Respondent's potential loss of its state certification. She testified that, in January 1979, she was too busy with the state inspec- tion to train employees and in February she was so busy that she "probably" did not have time to interview cer- tain job applicants. Ellis never explained why she in- creased her use of contract labor services when instruct- ed to do the opposite. Nor did she explain why she did not hire LPNs when instructed to do so. Further, Ellis could not recall why she did not hire the 13 named ap- plicants for employment. From reviewing the job appli- cations, Ellis had a reason for not hiring two of the ap- plicants. But for the most part she had no memory and her written remarks were brief and not fully explained. For four of the employees, even utilizing the job applica- tions, she could not recall a reason. Certain examples are most telling: With regard to applicant Carol Palmer, Ellis testified that she was interested in hiring Palmer and called to leave a message for Palmer, but no one an- swered.9 However, no explanation was offered for why Palmer was not hired immediately, why Palmer's calls were not returned, or why Ellis did not send Palmer a wire or a letter. Applicant June Zimmerman was appar- ently not hired because she wanted full-time work. How- ever, no explanation was offered as to why Zimmerman could not be offered full-time work. Respondent was uti- lizing RNs and LPNs from contract services during the hours that Zimmerman sought work. In its brief, Re- spondent argues that Zimmerman was inexperienced. However, Zimmerman had served in an intern program 'Administrative Lasw Judge Rasburry, apparently, credited Ithose re- sponses given by Ellis ()n the other hand, I place particular importance on Ellis' failure to offer evidence on matters critical to the resolutioin of these issues. 9 There is reason to doubl that Ellis in fact called Palmer s I'Palmer credibly testified someone was present at all times to take phone mesa sages for her at Madison South. Moreover, that reason was not offered by Ellis. "' The General Counsel also presented evidence that Madison North, Respondent's sister facility, hired an LPN in April 1979, who did not have long-term care ex- perience-a requirement used to exclude applicants at Madison South. Most importantly, Ellis was not recalled to deny Buchanan's testimony regarding her instructions not to hire a regular staff of LPNs. Donald Nelson, Respondent's administrator, testified that he was under instructions from Trudel Dean (then Respondent's operations manager) to reduce the contract labor expense and to "use his own people."" Nelson was never instructed to increase the number of RNs. Howev- er, between October 1978 and January 1979, Nelson par- ticipated in the hire of three RN's.'2 During the relevant time period at least five RNs were hired. Nelson, like Ellis, never explained why contract labor expenses in- creased in contradiction of management's instructions. Nelson never explained why the 13 applicants named in the complaint were not hired. Analysis and Conclusions In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), the Board announced the following causation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(l) turning on em- ployer motivation. First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Upon such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. 13 As the parties agree and I find that the critical issue herein is Respondent's motivation for using contract labor services and not hiring LPNs, I find that the Wright Line test applies. For the following reasons I find that the General Counsel has made a prima facie showing that Respondent was motivated by a desire to discourage membership in the Union and to erode the bargaining unit. Concurrent with the filing of the petition in the representation case, Respondent substantially increased its use of contract labor from one agency and began utilizing contract labor from a second agency. The timing of these events is an important factor in determining whether Respondent was motivated by its employees' protected conduct. Further, during this same time period, Respondent was engaged in substantial unfair labor practices. The unlawful dis- charges of two bargaining team members, Judy Johnson and Marcy Lyon, followed by the discharges of employ- "u No weight has been given to arguments in Respondent's pretrial brief regarding alleged delicielncies of job applicants which are not sup- ported by Ellis' testimony " Contract labor cost Respondent $2 per hour more than employee labor in the same classification Nelson was also told by Respondent's counsel to hire L PNs so as not to appear to be deleting the unit I' One of these RNs quit shortly after her hire The two RNs replaced LP 'Ns Nelson testified that Respondent had job applications from ap- proximately 50 RNs and approximately 20 LP'Ns "3 If after all the evidence has been submitted. the employer has been unable to carry its burden. the Board will not seek to quantitatively ana- I)N7e the effect (,f the unlawful cause once it has been found Id at fn I1 930 MADIS()N S()LT11 C()NVAI ISCENF CFNTER ees Glenda Freeburger and Judy Jarvis in order to hide the illegal discharge of Johnson and Lyon, establish that Respondent had embarked on a course of conduct aimed at discouraging employees from union activities. An in- ference can be drawn from such antiunion conduct that Respondent was similarly motivated in its use of contract labor. I find it particularly significant that the use of contract labor was against Respondent's self-interest. Contract labor was more expensive. Both Nelson and Ellis were allegedly told to hire LPNs and reduce the cost of con- tract labor. However, rather than reduce such costs, Re- spondent increased its use of the more expensive contract labor services. Respondent would not have acted in this manner unless it had a reason. Respondent's failure to ex- plain its reasons leads me to conclude that it had a reason which it desires to conceal-an unlawful and dis- criminatory one. Contrary to Administrative Law Judge Rasbury, I do not find that Ellis took the easy way out and turned to contract labor because it allowed her more time to devote to her primary task of getting ready for the in- spection. Ellis did not so testify She only testified that in January 1979 she was so busy that she could "probably" not train employees. Ellis further testified that she prob- ably was too busy in February to interview certain appli- cants. However, there is no basis to conclude that con- tract labor required less training or required less of Ellis' time. Rather, the frequent turnover of contract labor would require more training and supervision. Further, two of the LPN applicants, allegedly not qualified. were sent by nursing agencies to work for Respondent as con- tract labor. There is no evidence that those two nurses were given any additional training. Moreover, Respond- ent did hire RNs and there is no reason to believe that RNs needed less training or required less of Ellis' time than LPNs. Finally, the undenied admissions made by Ellis to Bu- chanan establish that Respondent knew that the unit was being dissipated. Ellis further admitted to Buchanan that she was instructed not to hire applicants regardless of their qualifications. This evidence was not rebutted or explained. The lack of reasons for failing to hire the named appli- cants further supports the establishment of the General Counsel's prima facie case. Carol Palmer, concededly qualified, was allegedly not hired because no one an- swered one phone call. No effort was made to write her or call her again. June Zimmerman was not hired be- cause she allegedly wanted full-time work, but there was no evidence that full-time work was not available. Rather it appears that contract labor was being used during the work hours for which Zimmerman was seek- ing employment. Further, no attempt was made to inter- view five of the applicants. I find that the timing of the increase in the use of con- tract labor shortly after the filing of the petition and con- current with substantial unfair labor pi ictices, the use of a more expensive alternative to hiring L.PNs for unit po- sitions, and the admissions of Buchanap and Resnond- ent's failure to offer a plausible explanation for its con- duct establish the General Counsel's prima facie case. Thus, the burden shifts to Respondent to come forward with a business justification for its failure to fill vacant unit positions with licensed practical nurse applicants. As stated earlier. Respondent contends that its failure to hire LPNs resulted from external conditions beyond its control. First, Respondent asserts that it has always been easier to hire RNs than LPNs in the nursing home field. There is some evidence to support that argument. Secondly, Respondent contends that its hiring problems ,were compounded by its threatened decertification by the State Department of Social Health Services. This contention is no doubt true. However, neither argument explains Respondent's conduct in failing to avail itself of a qualified applicant when such a person applied for work. Thirdly. Respondent argues that there was no eco- normic incentive for Respondent to avoid or minimize the use of staff LPNs; to the contrary, there was a very strong economic disincentive to doing so. As discussed above, it is this economic disincentive which casts seri- ous suspicion on Respondent's conduct and which must be explained by Respondent. Respondent contends that it took strong, affirmative action to attempt to maintain its LPN staffing during the critical time period herein. While Respondent did place extensive advertising in local papers to attract applicants, no attempt at hiring has been shown. Rather, evidence has been shown that Ellis was instructed not to hire unit applicants regardless of qualifications. Moreover. Re- spondent cannot adequately explain why it did not hire at least some of the applicants. While certain of the LPN applicants may not have met nondiscriminatory stand- ards, it appears that all were disqualified regardless of qualifications. As stated earlier. I am not impressed by reasons offered in brief which were not advanced by Re- spondent's witnesses. The failure to hire LPNs does not appear to be directed at any of the applicants or the union activities of any applicant but rather at the Union. Thus, I do not find it persuasive that none of the appli- cants were questioned about their union sympathies. Based on the above analysis, I am not persuaded that Respondent's conduct in not filling vacant LPN positions and not hiring LPNs would have taken place in the ab- sence of its employees' union activities. If Respondent had evidence to support its defense, it should have pre- sented such. I find that Respondent has not rebutted the prima facie case and, therefore, that Respondent had vio- lated Section 8(a)(3) of the Act. As found above, Respondent's failure to fill vacant LPN positions was motivated by its reaction to its em- ployees' activities in bringing in the Union. Whether Re- spondent was further attempting to dissipate the unit or undermine the Union's majority is not clear. However, dissipation of the unit and the undermining of the Union were reasonable expectations from Respondent's con- duct Ellis conceded as much to Buchanan. Thus, I find that Respondent's conduct violated Section 8(a)(5) as well as Section 8(a)(3) of the Act. Respondent further argues that: (I) the Board cannot determine which applicants are qualified for LPN posi- tions, and (2) it has not been shown that vacancies exist for all of the discriminatees. ,Aearonder Dawson, Inc.. 83X1 DI)[ISIONS ()F NATIONAI I AlO()R RF[I.A''I()NS B()ARD) d/b/a Alexanders' Restaurant and Lounge, 228 NLRB 165, 179 (1977)."' The Administrative Law Judge quot- ing Shawnee Industries, Inc.. subsidiarp of Ihiokol Chenni- cal Corporation, 140 NLRB 1451, 1452-53 (1963), stated: Under the Act an Employer must consider a re- quest for employment in a lawful, nondiscrimimna- tory manner, and the question whether an applica- tion has been given such consideration does not depend on the availability of a job at the time an application for employment is made. Consequently, the Act is violated when an employer fails to con- sider an application for employment for reasons proscribed by the Act, and the question of job availability is relevant only with respect to the em- ployer's backpay obligation. Having failed to consider any of the applicants because of reasons prescribed by the Act, Respondent must show that an applicant would not have been hired even in the absence of such unlawful reasons. It has sustained that burden only with regard to two of the applicants: John Eugene Storment and Shirley Kathleen Tock. Storment did not have a valid state license and Tock did not appear for her interview. With regard to the II1 remain- ing applicants, Respondent has failed to establish that they were not qualified for employment had their appli- cations been lawfully considered. Determination of job availability and possible backpay liability will be proper- ly left to the compliance stage of this proceeding. Alex- ander Dawson, supra, 228 NLRB at 179; Apex 'entilating Co., Inc., 186 NLRB 534, fn. 1 (1970). CONCLUSIONS 01 LAW 1. By failing to replace licensed practical nurses, by in- creasing its use of contract labor services, and by refus- ing to consider job applicants for positions as licensed practical nurses, for the purpose of dissuading its em- ployees from supporting the Union and/or for the pur- pose of dissipating the bargaining unit or undermining the Union's majority status, I find Respondent violated Section 8(a)(5), (3), and (1) of the Act. 2. By engaging in a pattern or practice of refusing to hire applicants for employment, regardless of qualifica- tions, in order to discourage its employees from support- ing the Union, I find that Respondent discriminated in regard to the hire of Frances L. Frederick, Beverly Ann Riley, June K. Zimmerman, Patty Ann Colbert, Russel K. Goo, Carol Palmer, Vicky Renee Mostul, Jacquelyn 4 Enfd 58 F 2d 13()00 (9th Cir 19781 Jean Tilton. Pamela Joleen Rowberry, Theodore Q. Bla- singame, and Teresa J. Blasingame, thereby discouraging membership in the Union and, accordingly, I find that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The evidence establishes that Respondent would not have hired John Eugene Storment and Shirley Kathleen Tock even in the absence of its unlawful motives de- scribed above. Ttliii RFI MI) Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action set forth below to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- criminated against Francis L. Frederick, Beverly Ann Riley, June K. Zimmerman, Russell K. Goo. Patty Ann Colbert, Carol Palmer, Vicky Renee Mostul, Jacquelyn Jean Tilton, Pamela Joleen Rowberry, Theodore Q. Bla- singame, and Teresa J. Blasingame with respect to their applications for employment, it will be required to offer them employment in the same position in which they would have been hired absent the discrimination against them, in the order that it would have employed them absent any discriminatory considerations, discharging, if necessary, any employees hired after the dates of their applications. In the event that there are insufficient posi- tions for all the discriminatees, the reinstatement offers will be made in chronological order according to the date of application. With regard to those discriminatees not receiving an offer, Respondent will be required to place their names on a preferential hiring list and offer them the first such positions that become available, in which it would have employed them absent any discrimi- natory conditions. It will be further recommended that Respondent be required to make them whole for any loss of earnings they may have suffered by reason of the fail- ure to give them nondiscriminatory consideration for em- ployment in the manner outlined above, with backpay to be computed on a quarterly basis, making deductions for interim earnings, F KW Woolworth Company, 90 NLRB 289 (1950), and w'ith interest to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).' 5 [Recommended Order omitted from publication.] " See,. gencrally, siv PlurmbinlK & I eating Co.. 138 Nl.RH 716 11962) See a)ls ()alsvmpit Med(tl (l rprprrator , 250) NL RB 14tl (19R(0) 832