M agnolia Manor Nursing Home. Inc.

MIA(;NOI IA MANOR NU'RSIN(G 11M0- Magnolia Manor Nursing Home, Inc. and Service Employees International Union, Local 706, AFL-CIO. Cases 16-CA-9119 and 16-CA 9185 February 22. 1982 DECISION AND ORDER BY M IMBHI RS FANNING, JE NKINS ANI) ZlIIM IRMIAN On December 18, 1980, Administrative Law, Judge Michael D. Stevenson issued the attached Decision in this proceeding and, on December 29. 1980, he issued an erratum to that Decision. There- after, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief inl sup- port of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of tihe National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its aiu- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions2 of the Administrative Law I Respondent has excepted to cert;in credihiNlt findings ml ade hb the Administrativse 1 la Judge. It is the BoaIrd's estalbhshed pohicS llo In overrule anl admiistrative llu. jludger' resolutionrs .iith respect I cretli hility unless the clear preponderaltlc of all of tile relexant evidence con- vinces us that the resolutions are incorrect Standard I)r, Wa /i Produtrr. Inc., 91 NLRB 544 (1950), enrd 188 1 2d 3ih2 (d Cir 1951) We hase carefully examined the record and find no basis tir reersiing his findindig Respondent further claims that the Adminislrative I. v. Judge took "the position of advocate" at the hearing and was not neutral or impar- tial. It also contends that the Administrative L aw Judge used "prejudicial and wrong reasoning to make adverse findiligs against Responldenl" [~e have carefully examined the rectord and the I)ecision iil light of these claims and find no basis for them In the absence of exceptions, we adopt prel orrtiu the Adlninistralire Law Judge's findings that Resplondeint did not Siolate the Ai with re- spect to the discharge of Johnetta Joihnison and the isu lling quits of il ilie Crowe. Acie Tucker, and Della Washingtoln 2 The Administrative Las Judge found that Respondent had violated Sec 8(a)(3) oIf the Act by refusing Io lire and bs the actual or colstruc- tive discharges of a number of the alleged discriminatees Inl finding these violations, the Administrative Law Judge did not specifically find that Respondent was aware of the particular union activities of each discrl- minatee before it took adverse action against each. In the circumstances of this case. we do no( deem such ai finding necessary As the Adminiis trative L aw Judge found, all the employees were union memhbers and suppoirters Also, the Administrative l.aw Judge found, Respondent de- sired a turnover of the staff it initially hired as it coinsidered that staff prounion and it wished to dissipate the strength of that prortuniion senit- ment. Numerous of its actions detailed by the Administrative L asw Judge were taken with the object in mind of dissipating the Union's strength And it is clear that the various adserse actilons takeni against the discrl- minatees were part of the pattern of reducing suppilrt for the Union by removing its supporters Given these circumstances, we coinclude that it was not necessary for the Administrative l asw Judge tlo detail at length either the union activity of any particular employee who was the victim of Respondent's adverse action or Respondent's knowledge of a discri- minatee's personal involvement in union aclivity Cf Karl Kallmann d/b/a Lovet Barbeque Resiaurantr A, 62, Lote S' Enterprires, In'., 245 NLRB 78. 81 (1979). enlfd in pertinent part 640 F 2d It94 (9th Cir 1981); Houston Ditrrbuttion Services. Inc., 227 NL RB 960. 967 (1977) In addition, we find that Karen McAllister was discharged on May o, 1980. as the Administrative Law Judge foutid at fn. 9 of his Declsilon, rather 260 NLRB No. 40 Judge and to adopt his recommended Order, as modified herein. : ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Magnolia Manor Nursing Home, Inc., Jefferson, Texas, it officers, agents, successors, and assigns. shall take the action set forth in the said reconi- mended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer the employees listed in Appendix A immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earnings they may have suffered due to the dis- crimination practiced against them, plus interest." 2. Substitute the attached notice for that of the Administrative Law Judge. than 1ll Nl;l) 1 19g(S. is he indicated at sec. 3(h) of his I)eclslor n 'e sl, agree witth the Admllinltqrati .c Lt.aw Judgc's conclusiorn thilt NicAIhster' discharge ,,.is part of Respondelttit's unlv i fL plan to dsi p.sate upport fir tht lie nion l ild hrefire xiolated Sec tilh 1) of the Act Ini sio conild ing. ho,,c\t'r, eei e agree tilh ithe Admlnii tratl s e Las, J ldge's recltalltin of telt tfac s ils set tl ili fi 1 of its [)ecilion lemniber /intmnernia;ri specficall diisavo,xs the Adnilnnstrall, I olx Judge' coi. ll i tiih .l t tlie dlscllarge of Mary Banks o ul d hasI: l beenh . I.utlatl e of lithe Act e .cn If shi vwere found to he a superl sor tie iadopt, the fiidinlg oIf .l llonl i conncllctioili . tith tHintk discharge 1on hbe aillus. irl agreenit ill tilth the Adnlinistrati e I.as Jidge. lhe finds1 her It ['C UI1 elllpll, ce 'We hise modificd the Administrat ve Lasw Judges, rec iommended ()rdcr to in lude the full reinslatcment language Iraditieonalls pros idedl hs the H oa rd We also m odifo the proposed notlice to cionillernil ith the pro i-llonis of thti recommended ()rder APPENDIX B NoTICE TO EMPILOYE.ES POSTFI) BY ORDI)R OF THrF NATIONAI LABOR Rit.ATIONS 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. Wt wl .i NOT fail to recognize and bargain with the Union on all matters relating to the terms and conditions of employment, or any changes thereto, and with respect to reachingk )77 DECISIONS OF NATIONAL LABOR RELATIONS HOARD agreement on a collective-bargaining agree- ment. WE WIL I NOT discharge or fail to retain em- ployees for the purpose of undermining sup- port for the Union. WE WILL NOT coercively interrogate em- ployees with regard to their own union activi- ties, the union activities of fellow employees, the activities of the Union, or the identities of union activists. WE WII.L NOT engage in surveillance or give the impression of engaging in surveillance of union activities. WE WILL NOT make coercive statements to employees designed to undermine support for the Union such as our willingness to pay a large fine before recognizing the Union or by threatening to discharge 50 percent or more of union supporters, or by stating we will never bargain with the Union over wages or other terms and conditions of employment. WE WILL NOT make erroneous statements of labor law to employees such as stating that be- cause there is no contract, there is no union. WE WILL NOT offer benefits to employees such as payment of insurance premiums for the purpose of undermining support for the Union. WE WIl.L NOT coercively tell employees that a legitimate reason for discharge could always be fabricated and make other similar types of antiunion statements. WE WIL.L NOT tell employees that other em- ployers in the area had been calling and asking for the identities of union organizers. WE WILL NOT tell employees that they would not need a union with us as we were going to pay salaries high enough for them to make a living, while we, at the same time, reduce the staff. WE WIL.L NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILI offer all the employees listed below 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 any other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered due to the discrimination against them, plus interest. Eva Lewis Susie Moore Ennis McAllister Mabel Hatton Mary Diane Banks Karen McAllister Brenda Washington Linda Washington Nevada Janet Lynn Parker Holloman Gloria Marshall Linda Thomas Loretta Jackson McCarol Moore WtI WIl. restore the status quo ante as to all changes in the terms and conditions of em- ployment which we made without bargaining with the Union, including employee transfers and shift changes, layoffs, or reduction of hours; also including policy on vacations, lunches, breaks, insurance policies, uniforms, and sick leave. However, we will continue to pay premiums on any and all employee acci- dent and health insurance policies. WE WILtI recognize and bargain with the Union on any proposed changes in the terms and conditions of employment and with re- spect to reaching an agreement on a collec- tive-bargaining agreement. MAGNOI.IA MANOR NURSING HOME, INC. DECISION STATIEMENT OF THE CASE MICHA-I. D. STEVENSON, Administrative Law Judge: This case was heard before me in Marshall, Texas, on September 9-13, 1980,' pursuant to an order consolidat- ing cases, complaint and notice of hearing issued by the Regional Director for Region 16 of the National Labor Relations Board on July 9, and which is based on charges filed by Service Employees International Union, Local 706, AFL-CIO (herein called the Union), on June 9 (Case 16-CA-9185) and on June 10 (Case 16-CA- 9119). The complaint alleges that Magnolia Manor Nurs- ing Home, Inc. (herein called Respondent), has engaged in certain violations of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended (herein called the Act). The Issues Presented 1. Whether Respondent is engaged in a business affect- ing interstate commerce to a degree that the Board has jurisdiction. 2. Whether Respondent is a successor employer and, if so, whether Respondent violated the Act by making uni- lateral changes in the terms and conditions of employ- ment. 3. Whether Respondent, by and through its agent, Kenneth Jewell, violated the Act by the making of cer- tain statements to employees which statements were cal- culated to coerce said employees in the exercise of their rights protected by Section 7 of the Act. 4. Whether Respondent violated the Act by refusing to hire certain persons employed by the nursing home's All dates herein refer to 1l980 unless otherwise indicated 378 MAGNOLIA MANOR NURSING HOME former owner and by terminating other persons shortly after Respondent hired them. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.2 Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINI)INGS OF FACT I 1. RESPONDENT'S BUSINEISS Respondent denies that it is subject to the jurisdiction of the National Labor Relations Board. However, the evidence of record shows that Respondent is a Texas corporation operating a nursing home facility in Jeffer- son, Texas. In addition, it was stipulated at the hearing that Respondent would project its gross revenues during any consecutive 12-month period to be in excess of $100,000. Evidence also shows that Respondent has or will purchase goods and materials valued in excess of $5,000 for a representative 2-month period from a suppli- er located within the State of Texas, which supplier has made purchases and received goods valued in excess of $50,000 per year from outside the State of Texas. Finally, Respondent has or will directly purchase and receive medical supplies from outside the State of Texas valued at approximately $3,000 per year. Accordingly, I find, that Respondent is a health care institution within the meaning of Section 2(14) of the Act and is engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act.3 II. THE LABOR ORGANIZATION INVOLVED Respondent denies, but I find, that Service Employees International Union, Local 706, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 4 Ill. THE AI.LEGED UNFAIR IlABOR PRACTICES A. The Facts 1. Background On or about April 30, Kenneth Jewell purchased the Magnolia Manor Nursing Home (hereinafter nursing home) from Mr. and Mrs. James Cole. Jewell's interest 2 The General Counsel's brief was not received by me until No'ember 14. This was a duplicate copy of the original mailed by her on November 6, but never received before the November 10 due date. I will treat this brief as timely filed. 3 University Nursing Home, 168 NLRB 263 (1967): Drexel Home, Inc. 182 NLRB 1045 (1970). 4 In making this finding, I rely on the evidence of record, including the testimony of Union Official Val Cox, which I have credited and in- cluding the "Certification of Representative," which I admitted over Re- spondent's objection. This latter document (GC. Exh. 14) is dated Janu- ary 18, 1980, and reflects that the Union was certified as the bargaining representative of an appropriate unit described in "The Facts" portion of this opinion. See also Alro Plastics Manufarcturing Corporaion. 1 36 NLRB 850, 851-852 (1962). in purchasing the Cole's business dated from 1977 when Jewell first became aware of its existence while investi- gating the possible purchase of another nursing home lo- cated in the same town, Jefferson, Texas. Because the Coles were involved in unexplained litigation, the nurs- ing home was not available for sale in 1977. However, Jewell contacted the Coles periodically until finally he was told in early 1980 that the litigation had been com- pleted and the business was for sale. In August 1979, the Union was contacted by certain of the Coles' employees who expressed an interest in orga- nizing a union. An organizing campaign was begun and the requisite amount of interest was expressed by the em- ployees. In October 1979, the Board conducted a repre- sentation case (R case) hearing for about 4 days, during which time several employees testified. Some of these employee witnesses noticed Jewell in attendance at the hearing, accompanied by one or more of his children. On or about January 18, the Board conducted an election which the Union won 36 to 7. On or about January 18, the Board certified the Union as a representative of an appropriate unit described as: All full and regular part-time employees employed at the Employer's . .. location, including LVN/charge nurses and other nursing service em- ployees, housekeeping, dietary, medical records clerk and social activities director. [G.C. Exh. 14.] On March 24, Union Official Val Cox testified that he sent a letter to Clarice O'Brien, administrator of the nursing home under both the Coles and under Kenneth Jewell, notifying her that employees Garner, Thomas, and Hatton were to be chief steward, shift steward, and executive board member, respectively. Thereafter, the Coles retained attorney Hugh Smith, who began negoti- ating a contract with the Union on behalf of the Coles. While the Coles were negotiating with the Union, they were also negotiating with Jewell to buy the nursing home. In mid-April, the deal was made and about 2 weeks later closed. Jewell purchased the home for $500,000 with $100,000 down; the ownership interest was divided evenly between Jewell and his two children. At the time of the purchase, Jewell owned three other nursing homes in the same general area of East Texas. These homes were all nonunion and no union had at- tempted to organize them. Jewell had been in the nursing home business since 1974 and before that had been a ma- chinist for the preceding 18 years, the first 11 of which were spent as an employee and the last 7 of which were spent as an employer. Cox learned of the sale to Jewell on April 30 when he was called by attorney Smith. Cox then sent three tele- grams: one to Smith, asking to bargain on the effects of the sale on employees, 5 and the other two to Jewell. One was a request for recognition and bargaining over conditions of employment based on the Union's status as ' In addition lo the two, charges filed In this case, Cox also filed a charge against the Coles for refusal to negotiate on the effects of the sale on unit members The Board issued a complaint which w'as resolved hy an informal settlement. 379 I) ICISI()NS ()F NA I ()NAL I.AItOR RUEL ATIONS 13()ARD a certified bargaining agent ((G.C. Exh. 16); the other telegram of the same date sent to Jewell asked specifical- ly for the continued employment of all unit employees. (G.C. Exh. 15.) 2. Respondent as an employer On April 30, Jewell called a meeting of nursing home employees for midafternoon. The employees vvithin the bargaining unit were almost all blacks, ; making the mini- mum wage, arid, in some cases, had several year's senior- ity. Jewell arrived for his first meeting with his employ- ees with an entourage of approximately 15 employees from one of his other nursing homes. As Jewell ad- dressed Respondent's employees, his other enmployees milled about in plain view behind him. Jewell began the meeting by introducing himself. members of his family who were nominal coowvners of Respondent, and the other persons present who worked for Jewell at one of his other nursing homes. This latter group included nurses, nurse aides, and a cook. After in- troductions, Jewell said that he knew there had been some problems with the Coles. but that he wanted to start fresh with them. T'hat is, Jewell said: I knew they had tried to form a union, and that there hadn't been a contract or anything, the Coles told me there was no contract, and they didn't have a union, and that's where I stood at the time. I thought that until a contract was signed and every- body agreed that they had a union, they didn't have a union, but I found out they did. And I said, "With me you won't need that. I am going to give the sal- aries that it takes to make you a living, but I can't work this many people and do that. Neither could the Coles." Jewell went on to say that these employees could either work for him and get along with him or they could leave right then. He also told them that, if they wanted to run a building, they should go get $100,0(X) together and buy one. Besides indicating to employees that, in his view, Re- spondent was overstaffed, Jewell also announced certain specific changes he intended to make. First, he would not allow any vacations accrued under the Coles and his employees would be entitled to a week's vacation only after they had worked for him for I year. The Coles had permitted 2 weeks after 1 year. (Resp. Exh. 6.) Second, the Coles permitted two 15-minute breaks per day, Jewell would permit one. Third, the Coles provided for free lunches prepared in the nursing home kitchen, while Jewell stated he could not afford this and all employees would be required to bring their own lunch. Fourth, the Coles did not require employees to wear uniforms, but Jewell announced he would. He also stated he would provide 10-cent-per-hour uniform allowance. 7 Finally. e To a limited extent, the race of participants in thi% calse is inllcrtWnllled with the issues of labor law herein presented. Accordingls, when iele- vant, race will be noticed in this case 7 This change in working conditions was never implemented-neither the wearing of uniforms nor the uniform allowance Jewell testifled that Cox told him he could not make these changes without negotiating with Jewell stated that employees would be required to take individual accident arid health policies at their own ex- pense." Jewell explained that he carried no workmen's compensation insurance at any of his nursing homes and, while he understood he was ultimately responsible for anly work-related injury or illness, he felt the insurance plan w ould lessen his potential exposure to employee claims. 1The record does not reflect whether the Coles carried workmen's compensation insurance, but it is clear that many of the Coles' employees hired by Jewell either never had the accident and health insurance or had per- mitted it to lapse. Jewell announced no further changes in terms and conditions of employment, but in subsequent days he did make two relevant changes in working conditions, al- though I anm not sure if ithe second was meant to cover all employees. First, Jewell converted a patient room used under the Coles as a patient activity room and an enmplocce break room back to a patient room. The nurs- ing home had been licensed as a 6()0-bed home under both the Coles aiid Jewell, but the former generally had fewer than 58 patients. Jewell wished to have the maximum number of patients permitted under his license. Under both owners, howmever, the number of patients varied be- tweell 54-58 under the Coles and between 56-60 under Jewell. Second, Jewell discharged employee Ennis McAllister in part for being absent on a Saturday. Jewell testified that he could not tolerate absences on Saturday for any reason." No such policy existed under the Coles. (Resp. Exh. 5.) Subsequent to this meeting, Jewell. together with his daughter Gayla Jewell and O'Brien, began to interview applicants. Approximately 54 employees had worked under the Coles. Of these, Susie Moore, an LVN, and two sisters named Washington, nurses aides, were among those not hired by Jewell. However, not all people hired were interviewed; in fact, some hired did not even submit applications. All unit employees hired were paid the same as they earned under the Coles. In addition, in all or most cases, employees were hired to perform the same work for Jewell as they had done under the Coles. The unit employees who testified were employed gen- erally in either the medical, the kitchen, or the house- keeping and maintenance groups, although there was sonime overlap. I begin with the medical group which was divided into licensed vocational nurses, nurses aides, and medical aides. One of the LVNs under the Coles was Susie Moore, who worked the 11 p.m. 7 a.m. shift. Moore had worked for the nursing home since May 1977. Moore was 61 years old and had a moderate hear- ing disability. When she was interviewed by Jewell on the Utnion I o this, Jewell responded. " et's Just forget the whole nliallr" A Again Je'cll changes his lriild on this natter. O()n or about June 5, Jeaell told ilhose emrlploe-es still working for him tihat he would pay the premtiunl of $8 a montlh per emplhyee At this time. a violent and almost fatal inucidenTl occurred as i resutlt of a dispute over the insurance as re- nected mi greater dclail belos " Jewell also fired Karenl McAllister. a nlurses aide ,on the I i p m-7 a n shift as she w as calling in sick on May h McAllister was informing Debbie Btroiwn, director if Ilnurses that she would rnot he in that evening When Jc-eell Iiterrupted lhe call saying. "Ihank you for your service iYIL xc bhcln replaced and Ac no lorage'r riced youu" then he hung tip 38( MAGNOLIA MANOR NURSING HOME May I., he told her that he no longer intended to have an LVN on the 11-7 shift. Jewell offered her a position at one of his other nursing homes, but she said that she could not afford to move. Then Jewell instructed Moore to return the next day when he would discuss the matter further with her. Before Moore came back, Jewell testi- fied he received certain information from various sources leading him to believe that Moore abused patients. I will examine the sources and nature of the information pro- vided in the "Analysis and Conclusion" section of this opinion. For now, it suffices to say that Jewell refused to hire Moore when she returned the next day and this re- fusal constitutes a major issue in the case. With the ex- ception of the two Washington sisters and some others, the remaining unit members in the medical group began work. Then on June 5, several of them stopped working as a result of a bizarre incident involving Johnetta John- son, a long-term nurses aide at the nursing home. Like the prior incident, I will discuss the matter in detail below. Much of it is sharply disputed by the participants. witnesses, and bystanders. Briefly, the matter involved an argument between Johnson and Jewell over the former's refusal to apply for and accept an accident and health policy, even after Jewell had agreed to pay the premi- ums himself. This intense dispute culminated in Jewell discharging a handgun in the hall of the nursing home. No one was injured as a result of this episode. In the kitchen. Jewell first attempted to retain all em- ployces while at the same time clearly indicating his in- tention to reduce the staff, restructure work shifts, and redistribute work assignments as soon as possible. The kitchen employees responded to these initiatives in a fairly uniform way. All quit or so indicated their resist- ance to Jewell's plans that they were fired. Kitchen Su- pervisor Doris Norris, who did not testify, quit first. Be- cause Jewell was required to have a licensed supervisor in charge of the kitchen, Jewell asked remaining employ- ees whether they would be willing to undertake the nec- essary schooling and training. For various reasons, all declined. Finally, I turn to the housekeeping department. The supervisor there was Mary Diane Banks. who began em- ployment in November 1978. She was hired by Jewell on April 30, then fired by him on May 1. A detailed de- scription of the circumstances surrounding Banks' dis- charge is necessary only if I find that Banks is not a stal- utory supervisor, a sharply contested issue. I will discuss this and related matters in the "Analysis and Conclusion" section of this opinion. Replacing Banks as housekeeping supervisor was Janet Lynn Parker, who began working at the nursing home in April 1979. She quit her job on May 8 because she was unable to perform heavy janitor's work assigned to her by Jewell. Parker was replaced by Maxine Williams who began employment on May 20 and was still employed at the nursing home at the time of hearing. Other than Ron Banks. husband to Mary Banks, the only other member of this department to testify was Ennis McAllister, who had worked at the nursing home about I year before he was fired by Jewell on May 3, in part for calling in sick on a Saturday. As the original housekeeping staff was depleted, Jewell attempted to assign employees from other departments into house- keeping. Generally, these efforts were unsuccessful. The original charge in this case was filed by the Union on May 6. (G.C. Exh. I(a).) A few days later, Jewell sent out a host of letters to his former employees offering them reemployment at the nursing home. Some letters were sent to incorrect addresses or were otherwise de- layed in reaching the addressee. In other cases, former employees responded, but were faced either by a lack of Respondent interest or the same difficulty which had led to their departure originally. In any event, only one former employee, Loretta Jackson, was rehired as a result of these letters. 'o While all of the above events were occurring, Jewell had several contacts with Cox relative to his representa- tion of unit employees. After the two telegrams referred to above, Cox talked to Jewell over the phone on May 2. The former asked for a meeting but Jewell said he was too busy then. There is some conflict in the testimony as to whether a meeting was scheduled for May 5. but both Jewell and Cox agree that they did in fact meet on that day at the nursing home. Cox argued that Jewell should be laying off people on a seniority basis and only after negotiating with the Union. The two men discussed Moore in particular and Jewell told Cox he would never take her back as she had abused patients. Cox also asked to bargain on the wear- ing of uniforms and the uniform allowance. This meeting was followed by a May 9 letter from Cox to Jewell asking the latter to reinstate employees and make them whole. Cox also requested that Jewell refrain from any further actions affecting employees without negotiating with the Union, (G.C. Exh. 9.) The two men met again on June 2 and this time Jewell was accompanied by his attorney, McLaughlin. Cox gave McLaughlin a copy of certain proposals that had been tentatively negotiated with attorney Hugh Smith while the Coles owned the nursing home. McLaughlin stated that he would study these proposals, but that Jewell would never agree to ar- bitration nor to checkoff. Another meeting was sched- uled for July 7, but was postponed for I week due to a business commitment which Cox had elsewhere. This meeting was ultimately canceled at the request of McLaughlin due to the Board having issued a complaint in the case. (G.C. Exh. 8.) B. Analysis and Conclusions I. Is Respondent a successor employer? On or about April 30, Respondent purchased the nurs- ing home from the Coles. Thereafter, the location of the business and the equipment used stayed the same; the nature of the business, the number and identity of pa- tients, and the level of care and funding for their care re- mained the same. In addition, the administrator of the nursing home, Clarice O'Brien, continued her position under Respondent. Initially, lower ranking supervisors also remained the same: Doris Norris, dietary supervisor, "' As i rcuill oIf hearing hrng efor a I S Dilrict Judge In Augui, Jewcll aigail Igrecd to offer rccnipltynlil I1 mn;I l oIf his [lfrncr cm- plh*Ncc% a'il lti tinsl c [rll xcral iiccrlc.' 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Banks, housekeeping supervisor, and Debbie Brown, di- rector of nurses. When Jewell took over operation of the nursing home, there was no hiatus in the operation of the business. Finally, Jewell hired most of the Coles' em- ployees except for, among others, Susie Moore and the two Washington sisters. There is, therefore, a substantial continuity of the employing industry." I therefore find that Respondent is a successor employer.12 Counsel for Respondent admits that Respondent is likely to be found a successor under Burns, supra, but then contends that Jewell had no obligation to bargain over the initial terms and conditions of employment, which were substantially different from those maintained by the Coles. In support of its position, Respondent cited the Burns case and another case N.L.R.B. v. Wayne Con- valescent Center. Inc., 465 F.2d 1039 (6th Cir. 1972), to which I now turn. In Burns, the Court held that a successor was not obli- gated as a matter of law to assume the preexisting collec- tive-bargaining agreement between the union and the seller. Here no such issue exists as the Coles never nego- tiated a contract with the Union. The Court also said in Burns at 294-295: Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms. This so-called Burns exception has been interpreted by the Board in an important case which inexplicably is not cited by either party. In Spruce Up Corporation, 209 NLRB 194-195 (1974), enfd. 529 F.2d 516 (4th Cir. 1975), the Board stated: When an employer who has not yet commenced operations announces new terms prior to or simulta- neously with his invitation to the previous work force to accept employment under those terms, we do not think it can fairly be said that the new em- ployer "plans to retain all of the employees in the unit," as that phrase was intended by the Supreme Court. The possibility that the old employees may not enter into an employment relationship with the new employer is a real one. .... Many of the former employees here did not desire to be em- ployed by the new employer under the terms set by him-a fact which will often be operative, and which any new employer must realistically antici- pate. Since that is so, it is surely not "perfectly clear" to either the employer or to us that he can "plan to retain all of the employees in the unit" under such a set of facts. II Saks & Company d/b/a Saks Fifth 4venue, 247 NLRBI 1047 (19q0); compare V'anrage Petroleum Corp., 247 NLRB 1492 (1980). 12 N. L R B. v Willium J. Burns International Security Services. Ins.. 406 U.S 272 (1972), Valmac Indutiries. Inc. v. 'L.R.i.. 599 F 2d 246 (8th Cir 1979). At the April 30 meeting, Jewell announced new terms and conditions of employment to the nursing home em- ployees respecting vacations, lunches, uniforms, breaks, and insurance. Under the authority cited above, he was free to change the terms and conditions of employment without violating the Act.'3 However, I find that Jewell violated the Act under a different theory. In my view, Jewell violated the Act in refusing to rec- ognize the Union and to bargain over the changes in the terms and conditions of employment, because he was motivated by union animus in announcing and imple- menting these changes. Beginning with his statements at the April 30 meeting relative to the Union and the pat- tern of antiunion statements and acts which I find below, Jewell desired a turnover of staff for the purpose of re- ducing support for the Union. However, he desired these changes gradually and only as he found persons to re- place those not retained or retained and then actually or constructively discharged. Jewell also fabricated various pretexts to justify his desired staff turnover and this took time as well. Approximately 52-54 persons were employed under the Coles, including supervisors and part-time employees. Of these, Jewell hired approximately 45 persons by May I or shortly thereafter. This constituted his entire initial work force. Among those former employees not hired by Jewell were Susie Moore and Brenda and Linda Wash- ington. With respect to Barbara Hatton and Christy Jar- rett, they were never called as witnesses and therefore it cannot be established with certainty whether they worked for Jewell or not. With respect to McCarol Moore, I find contrary to Respondent's assertion that she was constructively hired by Jewell when she reported for work on May 1, without initial objection by Jewell. At the April 30 meeting, Jewell told employees in part that: "I wanted to start with them. I wanted to start fresh with them. I wanted them to work there." These statements in the context of Jewell's reduction of benefits and other harsh words at the meeting must have con- fused employees and made them uncertain of their posi- tion with the new owner. When these statements are in- terpreted in light of what was to come, their false prom- ise is made clear. Jewell went on to testify that he re- quired those employees who worked under the Coles to fill out applications with references which would be checked and then submit to interviews. There is no evi- dence that any references were checked. Nor was there evidence that all employees hired filled out applications nor that they were all interviewed. In addition, those employees who were retained were in almost all cases told to continue doing the job they had done under the Coles. This is evidence that Jewell desired to retain the Coles' employees only until he had replacements and a pretext to fire them or not to retain them. Thus, I find that Jewell's unilateral changes in terms and conditions of employment constituted a violation of Section 8(a)(5) of the Act under the circumstances herein present. This conclusion is based not on the so-called "Burns exception," which is not applicable here, but on ":' See Bellinghamn rozen Fiods, Inc. v . L.R.B., 626 F2d 674 (9th Cir 1980) 382 MAGNOLIA MANOR NURSING HOME my finding that these changes were motivated by Re- spondent's antiunion intentions to reduce support for the Union in the bargaining unit. Despite Jewell's efforts, the previously certified appropriate unit continued under Jewell, a fact which supports Jewell's duty to bargain over initial terms and conditions of employment. Other facts in support of my conclusion follow.14 I begin with Jewell's denial of knowledge of the Union's relationship to the nursing home unit employees. Jewell argues that he had no knowledge of the union certification prior to April 30 and only learned of this as of May 5. He claims that he was advised by the Coles that, since no contract had been signed with the Union, there was no union and no obligations to the Union. I find this claim preposterous and disbelieve it in toto. Jewell owned three other nursing homes and wanted to buy a fourth. In the course of attempting to buy Re- spondent, his interest extended over a year's time. He even attended the R case hearing for about an hour. Based on this alone, I would be inclined to discredit his testimony. However, I will also credit the testimony of current employee Lillie Crowe, a nurses aide. She testi- fied that, on May 2, she had a conversation with Jewell at the nursing home, wherein she asked Jewell, whether he knew before he bought the nursing home that the em- ployees were unionized. He admitted to her that he was aware that the employees were unionized. It should be pointed out that Crowe did not tell the National Labor Relations Board investigator about this statement. How- ever, I credit her testimony and discredit Jewell's denial of the statement primarily because it makes no sense at all to me that Jewell did not know and because I have generally judged Jewell's credibility to be low in this case. Also, I thought that Crowe was a sincere and truthful witness. I will discuss the credibility issue fur- ther in finding below that Jewell violated Section 8(a)(l) of the Act on several occasions. I will also discredit Jewell's denial that he received telegrams from Cox sent on April 30 at 11:46 a.m. (G.C. Exhs. 15 and 16) informing Jewell that the Union was the bargaining agent for the employees. Even though the telegrams were sent to Jewell at one of his other nursing homes, the confirmation copies were received into evi- dence and I do not believe Jewell when he says he never received them. Although I discredit Jewell's testimony when he said he did not know about the Union nor his obligations under the Act, I do accept Jewell's account, in part, of his remarks at the April 30 meeting to show animus toward the Union. Jewell said that he knew the employ- ees had tried to form a union, but also said that, because they did not have a contract, they did not have a union. He also stated, "With me you won't need that [a union]. I am going to give the salaries that it takes to make you a living, but I can't work this many people and do that." Then, with the 15 employees of his other nursing homes 14 It is important to note the lack of evidence as well No credible evi- dence was introduced to show that the nursing home was in fact finan- cially distressed nor that it was overstaffed Also, no attempt was made to justify any of the changes in vacation policy. lunches, etc According- ly, to the extent that Respondent's position can be construed as an eco- nomic defense, it is unsupported by the record and I reject it standing behind him, Jewell said that the employees "could either work for him and get along or they could leave right then." He said, "If [you] want to run a build- ing, [you] should buy one, get $100,000 together and find one. The thinly veiled attacks on the Union made by Jewell and the promulgation of erroneous labor law (i.e., no contract, no union) all convince me that Jewell was mo- tivated in changing the initial terms and conditions of employment by antiunion bias and the hope that the Union supporters would quit. ' Those that did not would gradually be replaced as I discussed above. In Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, fn. 8 (1974), the Court made clear that a successor employer could not refuse to retain nor to hire employees of the predecessor because of antiunion considerations. In sum, I find that Jewell was playing for time. Along with the remarks made at the April 30 meeting which I reported above, Jewell also stated there were too many employees and some would be terminated shortly. By changing the terms and conditions of employment due to a hostility toward the Union, he would be able to erode the power of the Union, and hope that some employees would elect not to work for him and replace the others when he found suitable replacements. Accordingly, I will recommend that Respondent be required to recog- nize the Union, to rescind its changes in the terms and conditions of employment, and to return its employees to the starus quo ante; I will further recommend that Re- spondent be ordered to bargain with the Union on these proposed changes. I will further recommend that Jewell be ordered to bargain with the Union on the issue of a collective-bargaining agreement. 2. Did Jewell interrogate, threaten, and otherwise coerce employees in the exercise of their Section 7 rights? In part, the question posed is affirmatively answered by the evidence recited thus far.m In part. the question posed is affirmatively answered by the evidence to follow below. I begin, however, with a special discussion of Jewell's credibility in order to justify my discrediting of much of his testimony. First, Jewell was an angry person, blaming in his testimony various persons and en- tities for the predicament in which he found himself: (1) The Coles for overstaffing and for allegedly giving him wrong information on the status of the Union: (2) Union Official Cox for trying to run the nursing home, for trying to tell Jewell what to pay employees, for trying to run Jewell off like he did the Coles, for fooling Jewell into believing that Cox was representing him in the dispute with employees, and for having overall re- sponsibility for the labor dispute which led to the hear- ing; and (3) the National Labor Relations Board for pre- i" I find that these remarks were calculated to coerce employees in the exercise of their Sec 7 rights and therefore violated Sec 8(a){I) of the Act Is The Board is entitled to consider emphatic antiunion attitudes as "bhackground" against which to measure the impact on employees ,if managemecints satements and conduct Independent. Inc. d/h;ba The DLilv .4d,ril',er X . fI. R B. 406 F 2d 2t1, 205. fn I (5th Cir 1969) 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tending to be a fair organization. This "passing the buck" detracted significantly from Jewell's credibility. In addi- tion, Jewell appeared to have a low opinion of women. On May 4, Jewell fired Ennis McAllister in part for being sick on a Saturday and, in part, according to McAllister's testimony, because "he didn't like the idea of having a man around the nursing home anyway, be- cause if a man walks out, the women will follow." Jewell also made certain remarks suggesting a racial bias, as he believed the blacks on the day shift were the most responsible for the Union. 17 This is what Jewell told Crowe and I credit her testimony over his denial of the remark. Jewell also blamed the day shift for the Union without the reference to race in statements to employees Ennis McAllister, a janitor, Nevada Holloman, a cook, and Janet Parker, a housekeeper. Thus, I resolve the credibility issue against Jewell for several reasons: First, his hostile and suspicious attitude toward unions, the Board, women, and blacks detracted from the believability of his testimony; moreover, some of his testimony was inherently incredible as discussed above. Second, the sheer volume of testimony against him, most of it consistent, corroborative, and unim- peached, is persuasive; in addition, Jewell himself has provided some corroboration, in particular his testimony relative to his April 30 remarks to employees about the Union; and, finally, the General Counsel's witnesses, for the most part, impressed me as sincere and truthful wit- nesses who would not be given to fabrication. The test applied in determining whether a violation of Section 8(a)(l) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employee rights under the Act. " '8 Moreover, I find that the statements attributed to Jewell as described both above and below were part of an overall pattern of con- duct aimed at coercing employees in the exercise of their Section 7 rights.'9 In finding several violations of Sec- tion 8(a)(l), I note first that Jewell was obviously a high- level supervisor with the demonstrated power to hire and fire employees. Next, the Board has recently held that interrogation of employees in order to probe their union sentiments or knowledge of union activities is un- lawful, even in the absence of threats of reprisals or a1 The element of race is mentioned only insofar as it appears to be relevant to the labor issues clontained herein Compare \. L.R. I. v ttlouw- ton Distribution Services. Inc., 573 1 2d 260, 265 (Sth Cir 1'I78) Certain black witnesses who formerly worked fir Jeweill testified to stateilllts which Jewell made to them and which the); belic'ed to he racist I g. at the initial employment interview. Jewell told Janet Parker. a hiueskcep- ing employee, that "each of his enlployecs would take a hathl and h1 didn't want toi smell me ". he told Iillie Crowe. a rllrses aide. not to bring a hag ito work, because she might steal a ham or roast (on the "ais home: he told employee Linda I'hoimas. who had just started that she could not work 3 pm. to II pm. shift due to a yoiung child at hom e. "You people don't want to work" Despite the resenlmenl olt Iht'e wi- nesses to the tenor of these remarks. I havse coAncluded that thes are gen- erally credible witnesses While I find that Jewill made tile remarks at- tributed to) him by the abov e w itlesses. I have not discredited hii ;is a witness solely because he made those remarks Holwevcr, I filld i tilhe context of this case Ihat they reflect ion his general crediblity CI Dloug- las & Lomason Company, 253 NLRB 277 (1980() I leer trical Fitrings Corporalton. a subhcidiarv of I- 1- Irtipr rtal ( {rpora- tion, 216 NLRB 1(76 (1975) I Pennypower Shopping 'Vels. Inc., 253 NI. R 85, fi 4 ( IqMi) promises of benefits.2" Moreover, Jewell never gave any assurances against reprisals,21 and, in some cases, did make threats of reprisals. Specifically, I credit the following testimony and thereby find Respondent violated Section 8(a)(1): (I1) Surveillance of union activities, impression of surveil- lance, and coercion: On May 5, Jewell asked Parker, McAllister, and Jarrett whether they were going to a union meeting. In fact, a union meeting had been sched- uled for that evening. Jewell told these employees that anyone attending these meetings would not have a job on return and that he had ways of determining who at- tended. On another occasion, Jewell told employees Crowe and Tucker that anyone attending a union meet- ing would be fired. I also find that O'Brien told Crowe not to let Jewell find out that Crowe had attended a union meeting. 22 (2) Coercion: On or about May 2 to Thomas, and May 7 to Parker, Jewell stated that he would pay a $1()0,000 fine before he would permit the Union in. 23 (3) Interrogation: On May 7 and 8, respectively, Jewell asked employees Parker and Marshall on separate occa- sions for the names of people who organized the Union and he also told Parker that whoever gave him the infor- mation would benefit.2 4 (4) Coercion: On May 2, 6, and 7. respectively, Jewell told employees Thomas, Taylor, and Parker on different occasions that, if he were able to remove 50 percent of the union supporters, he would be able to win the elec- tion. Jewell also told Parker that there would always be something wrong around the nursing home which he could blame on an employee he wanted to fire.2 5' (5) I'Fuiliy oj unrion support: On May 2 and 3, respec- tively, Jewell told employees Holloman and Tucker on different occasions that the Union was not going to tell him what to pay employees nor how he should run the nursing home.2"' In conclusion, I note that the complaint alleges ap- proximately 24 instances of statements made by Jewell or other agents of Respondent. Those discussed above and two others to follow are the principal violations. It is un- necessary to rule on other alleged violations since they arc cumulative to those already decided and would not affect the remedy in this case. 27 2 r /:P( Inditrires, ftI . .ctv 1ngtcr Ploint. I /ier (Wlus Dvoiln, 251 Nl RB 1146 (1981)) (ntr Errngirilrg, i c., 251 Nl RB1 4191 (1191I i IN L.R R s £cen lir lrmrporr. Inc., 49() F 2d 1)24. 1()28 (hlIh Cir 1974). ceri denied 419 1 S 8928 i Ohio ('Cv I laurluJcrauroir,', /l . 238 NI.RB l 965 (19'781 ()'lrlen testi- fied site c(ould iiot recall making tle statel erilt. but her ites rilonl sil s i1not persuamsisc ': USrl l)wi (utlcng, IAnc. 245 Nl Ri 11t41 (1979)1: HWctlnghiouc E lcctric ('Crponrrrltrron 24() Nl.RIB 95 (1'9791 a4 ()c Druig. Ira' a h o .ed at Subclhaurv .J J, i, / I ciid (C orpunici. (i 237 Ni RU 231 11'78). Sirth tuuo Servic,. lrcorporaii c .r 252 NL.RIH h11) (19)}1) i i, (Cenltrn I:l'ng icri , In c , r. arl. 251 NI Ri 419' I regard this statl T1111t ais Iligills persiasivsa. ofI Jcvcll ', lnlaslfil rlitltce inl tI'usinig tc rec- ciglllc aMid hargtallr l will) Iih lc l 1ion anld 111 discha.rgillg or falltig to rualira cerlial otf hi prcdccessor ',s cltplose'es A.ura/rthon 1crtulh IBuildlrn (,rnlpunv, . 224 NIlRK 1 121. 124 c197h5: Ihe /rrc' (cripan i crcit( tllrci/ .%funlrracr m z n D ... c 117 NilR 15th, 15101( 621 2 c S C,' igrcicn O[,c dc. Irn . 245 NL.RII R 51 (1971) 384 MA(GNO)I. l MAN()R NURSING 1t()MF 3. Were any or all of Respondenl's employees discharged because of their union activities or other protected concerted activities? I find that. with the exception of Johnson, Crowe, Tucker, and Della Washington, all other employees who were not retained, who were retained and then fired, or who were relained and then quit are entilled to reinstate- menlt and to be made whole. I will find that the quits were in fact constructive discharges. I state below my reasoning in each ind ivdual case However, all employ- ees were members of and supporters of the Union. The particular circumstances of each case are judged in light of this fact and other evidence heretofore recited. a. Mart Diane Banlks Banks started working at the nursing home in Novem- ber 1978, was hired by Jewell on April 30, and was dis- charged on May 1. (l) Was flanks a statutory supervisor?2 8 About 3 months after Banks started employment under the Coles, Banks was made "head housekeeper" by O'Brien. At this time about 10 percent of her duties changed Although fanks had a title of "housekeeping supervisor" and even referred to herself in those terms. I must conclude that she was not a statutory supervisor. It is a worker's actual powers and duties and not his or her title which controls. ' Banks had only the routine con- trol of a skilled worker over less capable employees, rather than the control of a supervisor sharing the power of management.:"' Thus, at the employment interview with Jewell, Banks was asked only if she could operate a buffer and she said she could. Apparently no one else on the housekeeping staff was qualified to operate this ma- chine. However, the routine nature of Batik's job is clear from the time she became the head of housekeeping under the Coles. This is important because Jewell told her to continue doing what she had been doing before. First, before and after she became a supervisor, Banks' job was to clean the patients' rooms, hallways, bath- rooms, dining room, and lobby. This work was of a rou- tine nature since there was little change in the identity, the condition, or the number of patients on a day-by-day basis. Also, both before and after her promotion, Banks was paid on an hourly basis, punched a timeclock, and spent most of her day doing the routine work described 2" This issue existed during the representation hearing in the case Inl- tially the housekeeping supervisor was excluded from the unit The Union filed an appeal of that delerminatnio and in a lelegram dated Janu- ary 8. the Board ruled in pertinent part that "a substanrial issue is raised concerning she supersisory status of Di)ane Banks The Board wen on to rule that she should he permitted Io casl a I lr under challenge (i C Exh 18 ) However. since the Union won ihe dclc- lion 36 to 7. her vote was riecer counted and no decision was made on her supervisory status at that time. 29 Berry Schrols v. NL.R.B.. 653 i 2d 966 (51h Clr. 1980)) tul differ- ently, a rank-and-file emplo'ee canni bhe transformned into a superisor merely by investing him or her wulth a title and theoretical power Io perform one or more of the enumerated functions" 'L.R.B. v Soutrhern Bleaching and Print Woirkr. 257 F 2d 235. 239 (41h Cir 1958), ccrt denied 359 U.S 911 (i959) 30 Goldrer. Inc sN .L R B., h28 F 2d 706 (I sr Cir 1981) above. a t Any special instructions were relayed to her by ()'Brien. O'Blrrien prepared a job description for Banks shortly after Banks became a supcrvisor.12 (C.F. Exh. 5.) Banks' job Ilescriplion was identical lo that received by the others When she received the job description, there were a total of seven employees in the housekeeping de- partnient including three part-time janitors. Like them, Banks worked 4 days on and 2 days off. When she was off, no one performed her exact duties as "supervisor." Banks received no special benefits as a result of her status other than a 15-cent-per-hour salary differential; others made $3..10 and she made $3.25. She earned the same vacation time as the other employees. The indicia of Bank's supervisory authority which I find to be of a routine nature included ordering supplies on a regular basis, some every week, and some every 2 weeks. Any orders of an extraordinary nature had to be cleared with O'Brien. Banks never signed sales orders nor arranged for payments to be made. Banks was told to watch other employees and make sure they did their job. This involved little effort since all knew what to do and did it. On several occasions, Banks recommended to O'Brien that friends be hired and they were hired. Other employees also recommended that friends be hired. There is no evidence that Bank's recommendations were treated differently than those made by other employees. On two occasions she reported employees were not doing their job. O'Brien decided to discharge them. Banks also made daily assignments and schedules, but these changed very little on a day-to-day basis. If some- one were sick. Banks would try to get a replacement, or might come in herself if she were off, to cover for the missing employee. Anyone getting sick while at work or needing time off for other purposes would have to see )'Brien for permission. On the basis of this entire record, I conclude that Banks' position was comparable to a non- supervisory leadman because at most she exercised limit- ed or sporadic supervisory authority.3 3 Banks exercised little or no independent judgment.3 4 In conclusion, the evidence in this case should be com- pared to that in Dunkirk Motor Inn, Inc.. d/b/a Holiday Inn of Dunkirk-Fredonia, 211 NLRB 461 (1974), enforce- ment denied 524 F.2d 663, 665-667 (2d Cir. 1975), where an assistant housekeeper in a motel was found to be a statutory supervisor. There the supervisor was salaried, directly supervised the work of the maids under her, per- sonally took disciplinary action when required, attended management meetings, and replaced the housekeeper when the latter was off. Because the duties of Banks are substantially different, I must conclude that the Dunkirk case does not apply.:" S: Maremont Cororration 239 NL RB 240 (1978) :" I credit Banks' testimony that she received this document after be- coming supervisor over O'Brien's less-than-certain testimony that the document was prepared before :':' J .J uberry ( ompany. a Whollv Owned Subsidiary of McCoryv Cor- plratuln, 249 NlRB q991, 9919992 (198)) :,4 (i;ldleu. In V A' ..RB. rupra :1a I] Red Oas .Vurrring Hlome. Inc .NVL.R.B. 633 F 2d 503 (7th Clr 19O0), an assistant fiood supersis4or with duties similar to Banks' was found not tio he a supervssor See also QuOk-Pik Foxod Slores. Inc.. 52 NI. R 506 (198l)) 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Was Banks fired in violation of the Act? Having found Banks an employee, I now conclude that she was discharged in violation of Section 8(a)(3) of the Act. I will view the facts of her case as well as those of other employees in light of the record evidence de- scribed thus far. Banks was discharged by Jewell on May I, after having worked for about 3 hours. This happened after witness Debbie Williams, an employee of Jewell at another nursing home, allegedly overheard, on April 30, Banks telling employees Parker and McAllister to walk out on Jewell to protest the new working conditions. Williams testified she immediately went to a co-worker of hers named Faye Royal, and told her what Williams said she heard. Then both women reported the remark to Gayla Jewell, daughter of Kenneth Jewell and part owner of Respondent. Gayla then reported the remark to her father who fired Banks the next day. Banks denied making the remarks at issue, but did testify she said something to Parker about now knowing if she would stay, because of Jewell's new policy on vacations. Banks made the same remark to O'Brien later. Both Parker and McAllister denied hearing remarks attributed to Banks by Williams. Moreover, Parker and McAllister testified that Banks was attempting to calm their fears about Jewell and encouraged them to give Jewell a chance. In analyzing this case, I first credit Banks' denial of the remarks attributed to her. I find that Williams was mistaken in what she thought Banks said. Although Wil- liams was a management trainee, she never went to Banks to clarify her alleged remarks. Jewell never went to Williams nor did he ask for Banks to explain. He did ask if she had anything to say after he fired her and Banks remained silent. I credit her explanation for saying nothing: Well, I figure when somebody tells you that, "you're fired" or "I have to let you go" I figured there was no need for me to say anything else, or anything. After crediting Banks' version of events, I also find that, even if Banks had attempted to organize a walkout in protest of Jewell's policy, this would have been pro- tected concerted activity. Thus, Jewell's mistaken belief that Banks was engaged in protected concerted activity as a basis for firing her is a violation of Section 8(a)(1) and (3) of the Act. 36 In addition, it is no defense that Jewell considered Banks to be a supervisor when I find her to be an employee.37 I will recommend that she be reinstated and made whole. Alternatively, if Banks is found on review to be a stat- utory supervisor, I nevertheless find that she is entitled to reinstatement and to be made whole. Since I have found a widespread pattern of misconduct against em- ployees and supervisors alike, the restoration of the status quo ante is required to fully dissipate the coercive effects, 38 Metropolitan Orthopedic Associates, P.C, 237 NLRB 427 (1978) 37 Orr Iron. Inc., 207 NLRB 863 (1973), enfd. 508 F.2d 1305 (7th Cir 1975); New Castle Lumber and Supply Co., Division of Peter Kuntz Co, 199 NLRB 685 (1972). because I find that her discharge, even as a supervisor, violates Section 8(a)(l) of the Act.38 b. Susie Moore This employee was interviewed by Jewell, but never hired. He first told her that her job as a licensed voca- tional nurse (LVN) on the I 11 p.m.-7 a.m. shift was being abolished. Of course, this is a matter on which Jewell was required to negotiate with the Union. Jewell offered Moore a job at another of his nursing homes, but she stated she could not leave the area. Then Jewell told her to return the next day for further discussion. Before Moore returned, Jewell claimed to have learned that Moore abused patients. First, there was an alleged report of such in her file under the Coles. However, sometime after the charge was filed in this case, but before hearing, Mrs. Cole retrieved all her personnel files and the al- leged report on Moore was returned to Mrs. Cole. Cox saw the document once and it did not say what Jewell represented it said. O'Brien also described the alleged in- cident and said there had been a complaint not of abuse, but of inattention to a patient's needs. Moore had denied the accusation of wrongdoing and O'Brien clearly did not consider the matter. Next, Jewell claimed a relative of a patient told him that Moore talks "bad" to patients. Jewell could not recall the name of the patient. Finally, Jewell's daughter Gayla reported to Jewell that some relatives of a patient had complained to her that Moore abused patients. I regard all of the evidence regarding Moore as purely pretextual. No report of Moore's alleged mistreatment of patients either by Jewell, O'Brien, or anyone else was made to the State of Texas, although a state law requires that an immediate report be made where there is evi- dence of patient abuse. In addition, personal physicians examine patients on a regular basis and no physician re- ported evidence of patient abuse. Gayla Jewell saw bruises on the arm of one patient alleged to have been mistreated, but on cross-examination, it was established that the patient's limb had been amputated for medical reasons. In sum, during the approximately 3 years that Moore had worked at the nursing home, there was no convinc- ing proof that she had not been a satisfactory employee. In Americana Health Care Corporation of Ohio d/b/a Bar- berton Manor, 252 NLRB 380 (1980), the Board affirmed the decision of the Administrative Law Judge finding pretextual that an employee was discharged for alleged patient abuse. The real reason there as here was Re- spondent's desire to divest itself as soon as possible of all union supporters, particularly where a pretext was avail- able. c. Brenda Washington and Linda Washington These women had been employed as nurses aides at the nursing home for 4 years prior to Jewell taking con- 3" Pennypower Shopping News, Inc., 253 NLRB 85, fn. 4 (1980); DRW Corporation d/b/a Brothers Three Cabinets, 248 NLRB 828 (1980): Shera- ton Puerto Rico Corp. d/b/a Puerto Rico Sheraton Hotel, 248 NLRB 867 (1980). 386 MAGNOLIA MANOR NURSING HOME trol. When they were interviewed by Jewell on May I, he told them that he was overstaffed and could not use them for that reason and because they lived too far away and did not have a telephone of their own. Then Jewell told them, "I'll give you a week to work." To this, Brenda Washington responded that it was unfair for them not to be hired. At this point, Jewell withdrew his offer, saying they could leave right then. First, there were several employees of Jewell's, includ- ing O'Brien and Donna McClellan, an RN, who lived further away from work than the Washingtons. Next, the telephone issue had not been a problem for 4 years before Jewell, and there was no evidence why it should suddenly become a problem. Next, there was no legiti- mate way for Jewell to know on May I that he would be overstaffed since he could not possibly know how many of the Coles' employees would desire to work for him. In the context of these reasons and other evidence of Jewell's discriminatory motivation already stated, I must find that by failing to hire these women Jewell vio- lated Section 8(a)(3) of the Act. In addition, Jewell was required to negotiate with the Union on the issue of which employees, if any, should be laid off for legitimate economic reasons. d. Janet Lynn Parker This employee worked as a housekeeper, having been hired originally in April 1979. After Banks was fired, she was put in charge of the housekeeping department. How- ever, Parker did not make schedules nor order supplies and her pay remained the same. Consequently, I find the evidence even stronger as to Parker that she was not a statutory supervisor. Parker stopped working on May 7 when she talked to Jewell on the telephone. She had been doing heavy janitor work formerly done by a man. She also had been working in the kitchen for part of the day. Jewell told her that this was only temporary until he could find someone to replace McAllister, who had been terminated. On May 7, Parker told Jewell that she could not continue to do this work, which was too heavy. Jewell first told her she did not have to be in charge of housekeeping, but she responded that due to recent surgery and the recent birth of a baby she simply could not do the janitor's work. He responded that she would toughen up to it and either do the janitor's work or stay at home. I find that Parker was constructively discharged in violation of the Act. For constructive discharge, it is necessary to have intolerable changes in working condi- tions; motivation to discourage union membership and support, and an employee's resignation prompted by these changes. 3 9 The record amply demonstrates Re- spondent's antiunion motivation, particularly in the course of several statements made to this employee which I have found violated the Act. The intolerable conditions consist of the heavy work which Parker was "3 Haberman Construction Company. 236 NLRB 79 (1978), enfd 618 F.2d 298 (Sth Cir 1980): Cartwright Hardware Company v L RB., 600 F.2d 268, 270(l01h Cir 1979). unable to do and which no woman had been asked to do before. 4 0 e. Linda Thomas This employee began working at the nursing home in November 1975 as an LVN. In her interview with Jewell, on April 30, he told her that he preferred regis- tered nurses and when he found one he would let her go. On May II, Jewell told her that he had found an RN but said she could finish out the day. A few days prior to this, Jewell had called her into his office and told her that various employers from the area had been calling him, wanting to know who the union organizers were.41 Jewell then told her she would never get another job, but he was willing to offer her 2 days a week on the 3- 11 shift. Thomas had been working 4 days a week on the 7-3 shift. Thomas told Jewell that she had to care for her 3-year-old son at home, and could not work that shift. I find that Thomas was constructively discharged. To begin, replacing Thomas with an RN was one less member in the bargaining unit and one less union sup- porter. Jewell's offer for Thomas to work 50 percent less than what she had been working at a different shift was no offer at all. While an employer has no duty to accom- modate special personal needs of its employees, here Jewell's motivation was clearly expressed by certain statements made to Thomas recounted above and intoler- able working conditions created in order to force her to quit.4 2 f. McCarol Moore Moore began at the nursing home in January 1979. She was a cook on the 5-1 shift. On April 30, Moore filled out an application but was never interviewed, at least not formally, in Jewell's office. She did meet and talk to Jewell on May I when he came into the kitchen. He told Moore and the other kitchen employees that too many were employed there and he asked Moore to work a split shift-6:30 to 9 and 4 to 7. Like the last employee, Moore stated she could not work that shift due to a young child at home. Then Jewell told her to just work out her 4 days, which she did. I find that Moore was constructively discharged. Jewell was not authorized to change unilaterally Moore's shift. 43 In addition, I rely on the substantial evidence of unlawful motive already recited. g. Karen McAllister and Ennis McAllister Both these employees were fired by Jewell on May 3 after calling in sick on one occasion. Ennis was told that Jewell would not tolerate any employee calling in sick on a Saturday. Neither employee was told of Jewell's al- leged policy on sick leave prior to the time they were 40 Monroe Auto Equipment Company, 159 NLRB 613, 622-625 (1966), enfd. 392 F 2d 559 (1968) 41 I find that these statements were coercive and violated Sec 8(aXI) of the Act 42 Daniel Construction Company a Division of Daniel International Corp., 244 NLRB 704 (1979) 4' Electric Machinery Company, 243 NLRB 239 (1979) 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fired.44 Moreover, such a policy never existed under the Coles. I find that both terminations were pretextual and made for the purpose of reducing support for the Union. 4 5 h. Mabel Hatton Hatton had worked at the nursing home as a cook for 16-17 years before Jewell's arrival. Jewell told her of his expected reorganization of the kitchen on May 1. On May 2 and 3, she was off. During this time, Jewell called her husband and told him that he would not need her anymore because he had heard that she did not want to work. On May 3, Jewell called her back and asked her to come in to work only as a l-day replacement for an- other cook. She accepted only if she could return to her job, but Jewell refused this. Again I find that her discharge was pretextual and made in violation of the Act due to her support for the Union. There was no evidence to support Jewell's belief that she did not want to work. i. Nevada Holloman Another longtime cook at the nursing home, Holloman never made out an application nor submitted to formal interview by Jewell. She spoke with him on May 2 in the kitchen where she was working her usual 5-1 shift. When Holloman indicated she would not be able to wash pots and pans after breakfast and lunch, as well as cook those meals as Jewell had ordered, Jewell said, "You can work the rest of the day if you want to, but if it was me, I'd leave right now." I find that Holloman was fired by Jewell for refusing to accept a unilateral change in her working conditions. Her discharge was unlawful as Jewell was obligated to bargain on the change. Moreover, I find that his ex- pressed desire for efficiency in the kitchen was pretex- tual. j. Gloria Marshall Marshall worked at the nursing home about 3 years as an evening cook before Jewell took over. She submitted an application, but was never interviewed. On May 8, Jewell told her that she was being switched to the 6-2 shift in the kitchen. She objected, saying she had small children at home. To this, Jewell responded that she just wanted to sleep late in the morning. Then Jewell said there would be no job in the nursing home for her and she would have to go to Houston for work. Jewell also told her she could work 2 days on and 4 days off. On May 15, Jewell offered to employ her for 2 days on an a.m. shift and 2 days on a p.m. shift, but she quit. I find that Marshall was constructively discharged for refusing to accept a unilateral change in her working conditions. " The Board has held that unexplained changes in an employer's disci- plinary system implies a discriminatory motive. Keller Manufacturing Company Inc., 237 NLRB 712 (1978). This assumes for the sake of argu- ment that Jewell's policy on sick leave was bona fide; a very doubtful assumption. 4' General Barrtery Corporation, 241 NLRB l166 (1979); l.ouuiana Council No. 17. AFSCME. AFL-CIO, 250 NLRB 880 (1980). k. Loretta Jackson This employee worked as a cook on the 11-7 shift. She submitted an application, but was not formally inter- viewed. On May 2, Jewell told her that she would be working from 6-1 with an hour break and then work 2-7 p.m. Not surprisingly, Jackson said that she could not do that work, because it was too hard, too long, and she would not get her proper rest. Jewell then told her to either work or leave, but she agreed to work until noon, after being asked to do so by a kitchen supervisor. I find that Jackson was constructively discharged. Not only was her shift unilaterally changed, but her hours were lengthened and her job made more difficult. This was done to force her to quit due to her support for the Union.4 6 1. Johnetta Johnson Johnson started at the nursing home in January 1971. She was hired by Jewell as a nurses aide, the same job she had before. On June 5, she was fired by Jewell. On that day, Johnson and her daughter, also an employee at the nursing home, were driven to work by her husband, a retired person, in time for a 2 p.m. meeting. Johnson knew as she came to work that she would refuse to enroll in an accident and health insurance plan arranged for by Jewell and costing $8 per month. Before the meet- ing formally began, she told Jewell that she did not want the insurance as she could not afford it. Jewell told her and later announced to the assembled employees that he had decided to pay the premiums for this coverage. Jewell also said that because these employees had been with him for over 30 days, Jewell knew they were on his side and that they could work together.4 7 Johnson, how- ever, refused to take the insurance even if Jewell paid the premium. She testified that she was afraid he would discontinue his payments and she would have to pay. Indeed, Jewell did remark to the assembly that, once em- ployees received raises in pay, he would discontinue these payments. Accordingly, during the employees' meeting, Johnson continued to object to the insurance. As Jewell began to distribute employee paychecks, John- son also objected to his failure to provide a check stub with pertinent salary deductions listed as employees had received under the Coles. Finally, Jewell warned John- son that, if she continued to protest both matters, he would have to fire her. She continued arguing with Jewell in a loud and disruptive voice. Finally, Jewell told her she was fired. Then Jewell handed employee paychecks to another employee for distribution and left the room. All agree that he was followed by Johnson who, having received her paycheck then due, was de- 46 Cf. J P Stevens and Company, 461 F 2d 490, 494 (4th Cir. 1972); Seven-Up Bottrrng Company of Bridgeron. New Jersey. Inc., 235 NLRB 745 (1978). 41 I find that the timing of this benefit, Jewell's explanation of it, and the entire circumstances of this case are a violation of Sec. 8(a)(1) even though it was not expressly made dependent on the employees' rejection of the Union Grandee Beer Distributors. Inc. v N.L.R.B., 630 F.2d 928 (2d Cir 1980). Jewell's offer indicated a coercive purpose and intent, i e., to undermine support for the Union in a subsequent election See NV LR.B. v Exchange Parts Company, 375 U.S 405 (1964). MAGNOLIA MANOR NURSING HOME manding a second check for the last few days that she had worked. This check was not due for another week and Jewell refused to make special arrangements for Johnson. There is a sharp conflict about subsequent events. Jewell testified that, as he was walking to his office fol- lowed by Johnson, her husband approached from an- other direction. He had his hand in his pocket and acted in a threatening manner. Jewell testified that he removed a hand weapon from his clothing and warned Johnson and her husband to back off. At this point, Mr. Johnson allegedly stated that he was going to get his weapon. Jewell shouted at Mrs. Johnson. "I'll shoot you" three times. Finally, the gun discharged but only by accident. The insurance agent on the scene and one other employ- ee corroborate Jewell's account to the extent that they saw Mr. Johnson near Jewell just before the gun was fired. Mrs. Johnson denies that Mr. Johnson was in the nursing home at the time of the incident and several em- ployees testified that they did not see him there. Accord- ing to Mrs. Johnson. Jewell aimed and fired the gun in an attempt to shoot her, because she demanded her final check. I find that Mr. Johnson was in the nursing home at the time as described by Jewell. Mr. Johnson was never called as a witness and I rely on an adverse inference as his absence was never explained. 48 In addition, the General Counsel's witnesses on this point were not nec- essarily in a position to see Mr. Johnson at the time in question. Paychecks were being distributed and there was confusion in the meeting room. I reject Johnson's testimony that Jewell attempted to shoot her as incredi- ble. I find the firing of the shot to have been purely acci- dental and I find the exhibiting of the gun was a re- sponse to a perceived threat. This, of course, is not to condone Jewell's use of the gun. He testified that he had begun to carry it as his life had been threatened by a dis- gruntled former employee before this incident. After this incident occurred, Mrs. Johnson reported the matter to police and signed a complaint against Jewell. He was not arrested, but was required to report to the police station to make bail. At the time of hearing, no action had been taken on the complaint. Mandatory insurance coverage was a new term and condition of employment instituted by Jewell, although there had been some insurance coverage under the Coles. Before Jewell announced that he would pay the premi- um, four other employees besides Johnson had indicated they would refuse coverage. Then all but Johnson ac- cepted the insurance coverage. Since Jewell fired John- son, there is no issue as to constructive discharge. Nor can I find any pretextual reasons for the discharge. By June 5, Jewell had caused several employees to leave, and the record indicates to me no motivation for him to discharge other employees-indeed he was in the midst of awarding them a benefit-which I have found to be unlawful. With due deference for Johnson's long service and fully considering the context of Jewell's other un- lawful behavior, I can find no basis to hold that Jewell violated the Act in discharging Johnson. Even if it be 48 Martin Luther King, Sr., Nursing Center. 231 NLRB 15 (1977) said that Jewell initially provoked the matter by unilater- ally changing the insurance coverage and even if Jewell were unreasonable in not allowing Johnson to opt out of the program, I cannot find the critical and essential ele- ment of unlawful motivation in this incident. Here the element of timing works in favor of Jewell. 49 Moreover, Johnson's action subsequent to her discharge of demand- ing her final paycheck and acting in such a way as to make Jewell believe he was threatened are consistent with my view that Johnson had the greater share of the responsibility for the incident. I discredit Johnson's testi- mony that she wanted her final check so that she would not have any further contact with Jewell. No reason was suggested why the check could not be mailed nor why she could not receive the check from her daughter, who worked at the nursing home. As to Mr. Johnson, I do not find that he appeared pursuant to any plan nor do I even hold Mrs. Johnson responsible for the actions of her husband. Rather I find that Mr. Johnson's actions re- inforce my belief that Jewell did not violate the Act in the firing of Mrs. Johnson. m. Lillie Crowe, Acie Tucker, Della Washington. and Joann Taylor These employees all quit their jobs on June 5, immedi- ately after the gun was fired by Jewell. I find that none of these women were constructively discharged. Johnson had the greater responsibility for the incident, and the firing of the gun was an accident. Jewell was not discri- minatorily motivated to discharge these employees. None of them left in response to the changed terms and condi- tions of employment. Respondent did not violate the Act with respect to their separation from employment. n. Barbara Hatton and Jo Alice Scott These persons were not called as witnesses and I lack any credible evidence on which to make findings. Ac- cordingly, I will recommend that they be dismissed from the case and that they be entitled to no relief. o. Other individuals The General Counsel's motion to strike from the com- plaint certain individuals made at the close of the hearing is hereby granted and the following persons are hereby struck: Roy Dean Albertson, Ronnie Banks, Mabel Hunter, Ella James, Christie Jarret, Dorothy Johnson, Eva Lewis, and Danny McAllister. In conclusion, I note that, after the charges in this case had been filed, Jewell sent out several letters to employ- ees between May 12 and 19. (See G.C. Exhs. 10 and II11.) These letters offered former employees a job at the nurs- ing home. Respondent has objected to characterizing these letters as offering reinstatement and it is not neces- sary to rule on how they may be properly characterized. The issues presented by these letters and other offers of employment which occurred, about 3 months later pur- suant to a proceeding before a U.S. District Judge, are "4 Moreover. I also cannot find any concerted action by Johnson It is clear to me that she acted as an individual See inco Insulation. Inc, 247 Nl RB 612, 612 -613 i1979) 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters to be resolved in the compliance portion of these proceedings as may be necessary. CONCLUSIONS OF LAW 1. Magnolia Manor Nursing Home, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 706, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent is a successor employer to Magnolia Manor Nursing Home. 4. The Union is the certified bargaining representative of all full and regular part-time employees employed at Respondent's Jefferson, Texas location, including LVN/charge nurses and other nursing service employ- ees, housekeeping, dietary, medical records clerk and social activities director. 5. Respondent violated Section 8(a)(5) by failing to recognize and bargain with the Union and by unilaterally changing the terms and conditions of employment of its employees for the purpose of undermining support of the Union; more specifically, Respondent changed its pred- ecessor's policies as to vacations, lunches, uniforms, breaks, and insurance coverage without consulting or bargaining with the Union due to union animus. 6. Respondent also violated Section 8(a)(l) of the Act: (a) By surveilling union activities, giving the impres- sion of surveillance, and threatening the jobs of employ- ees who attended union meetings. (b) By telling certain employees that he would pay a $100,000 fine before he would permit the Union in. (c) By interrogating employees about the identity of union organizers and telling an employee whoever pro- vided the information would benefit. (d) By telling employees that, if he were able to remove 50 percent of the union supporters, he would be able to win the next election; and by telling an employee that he could always find some legitimate reason to fire an employee. (e) By telling certain employees that he would not let the Union tell him what to pay employees, nor how he should run the nursing home. (f) By telling employees that with him they would not need a union, that he was going to give the salaries it takes for employees to make a living, but that he could not work this many people and do that, and by telling employees that because they did not have a contract they did not have a union. (g) By telling employees that because they had been with him for over 30 days, Jewell knew they were on his side and that they could work together, and then stating he would pay an insurance premium of $8 per month which up to that time employees had been expected to pay. (h) By telling employee Thomas that various employ- ers from the area had been calling him and asking who the union organizers were. 7. Respondent also violated Section 8(a)(l) and (3) of the Act by discharging or failing to retain the following named employees for the purpose of undermining sup- port for the Union: (a) Mary Diane Banks, a nonsupervi- sory employee; alternatively, even if found to be a super- visor, her discharge violated the Act; (b) Susie Moore; (c) Brenda Washington; (d) Linda Washington; (e) Janet Lynn Parker; (f) Linda Thomas; (g) McCarol Moore; (h) Karen McAllister; (i) Ennis McAllister; (j) Mabel Hatton; (k) Nevada Holloman; (1) Gloria Marshall; and (m) Loretta Jackson. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Except as specifically found herein, Respondent en- gaged in no other unlawful conduct. THE Ri MIEi)Y Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act and to post an appropriate notice attached hereto as "Appendix B." Also, it is recommended that Respondent reinstate and make whole all former employees listed in "Appendix A," for any loss of pay as a result of the discrimination against them. Said backpay is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heat- ing Co., 139 NLRB 716 (1962). Upon the foregoing findings of fact, the conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER5 0 The Respondent, Magnolia Manor Nursing Home, Inc., Jefferson, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Surveilling union activities and giving the impres- sion of surveillance. (b) Coercively interrogating employees about union activities and identities of union activists. (c) Threatening to discharge employees for attending union meetings or for other protected concerted activi- ties. (d) Implying that it would not bargain with the Union over wages or over the terms and conditions of employ- ment. (e) Coercively telling employees that a legitimate reason for discharge could always be fabricated and for making other similar types of antiunion statements. (f) Discharging employees or failing to retain other employees for the purpose of undermining support for the Union. (g) Offering benefits to employees such as payment of insurance premiums for the purpose of undermining sup- port for the Union. sO In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 390 MAGNOLIA MANOR NURSING HOME (h) Telling employees that other employers in the area had been calling and asking for the identities of union or- ganizers. (i) Telling employees that they would not need a union with him as he was going to pay salaries high enough for them to make a living, while at the same time reducing the staff. 0j) Telling employees that, because they did not have a contract, they did not have a union or other erroneous statements of labor law. (k) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act.51 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Reinstate and make whole all former employees listed in "Appendix A" in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Expunge and remove from its records and files, the documents dealing with the unlawful terminations or fail- ure to retain, all former employees listed in Appendix A. (d) Restore the status quo ante as to any changes in the terms and conditions of employment made by Respond- ent without bargaining, including employee transfers and shift changes, layoffs, or reduction of hours; also includ- ing policy on vacations, lunches, breaks, insurance poli- cies, uniforms, and sick leave. However, Respondent Si Hickmotr FlJods. Inc. 242 NL.R 1357 (1979) should continue to pay premiums on any and all employ- ee accident and health insurance policies. (e) Recognize and bargain with the Union on any pro- posed changes in the terms and conditions of employ- ment and with respect to reaching agreement on a col- lective-bargaining agreement. (f) Post at its Jefferson, Texas, facility copies of the at- tached notice marked "Appendix B."I 2 Copies of said notice, on forms furnished by the Regional Director for Region 16, shall, after being duly signed by Respondent's authorized representative, be posted immediately upon receipt thereof and be maintained by it for 60 consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (g) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Il IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges unfair labor practices not found herein. 52 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order or the National Labor Relations Board." APPENDIX A Mary Diane Banks Brenda Washington Janet Lynn Parker McCarol Moore Ennis McAllister Nevada Holloman Loretta Jackson Susie Moore Linda Washington Linda Thomas Karen McAllister Mabel Hatton Gloria Marshall 391