Lutheran Home, The, of Kendallville, Indiana, a Division of Lutheran Homes, Inc.

THE LUTHERAN HOME The Lutheran Home of Kendallville, Indiana, a Divi- sion of Lutheran Homes, Inc. and United Food and Commercial Workers Union, Local 10R. Case 25-CA-13013 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On February 2, 1982, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herein and to adopt his recommended Order, as modified. The Administrative Law Judge found that the new job classification of "supervisor-nursing," which Respondent established in November 1980 at the Kendallville home, was a Section 2(11) supervi- sory position. ' In creating that new job classifica- tion at Kendallville, Respondent did not even at- tempt to bargain with the Union and acted unilat- erally, thus violating Section 8(a)(5) of the Act, as the Administrative Law Judge found.2 The Admin- I No exceptions were filed to this finding. In addition, no exceptions were filed to the Administrative Law Judge's finding that Respondent did not violate Sec. 8(a)(1) of the Act by issuing a written warning notice to Becky Egly on February 9, 1981. We also note, with regard to the Administrative Law Judge's discus- sion (lf Respondent's no-solicitation rule, that under TR. W Bearings Divi- sion, A Division of TR. W.. Inc., 257 NLRB 442 (1981), the phrase "during working time" in a no-solicitation rule is presumptively invaldi. Chairman Van de Water does not endorse the holding in TR. W and subscribes to the standard announced in Essex Internarional. Inc., 211 NLRB 749 (1974) See his dissenting opinion in Intermedics, Inc., 262 NLRB 1407 (1982). 2 Our dissenting colleague fails to recognize that when an employer promotes employees out of the unit into supervisory positions, the Board draws a sharp distinction based on whether the bargaining unit thereby suffers a significant loss of work Where an employer wishes to select a unit employee to be a supervisor, and the unit will not lose that employ- ee's work, the Board does not find that the employer has a duty to bar- gain over the selection. KONO-TV-Mission Telecasting Corporation, 163 NLRB 1005, 1008 (1967). However, where an employer wishes to create a new supervisory position and the several unit employees whom the em- ployer wishes to place in the new supervisory jobs will continue to per- form duties which they had performed as unit employees, the unit will- as here--suffer an abolition of jobs. That loss of work is a change in the terms or conditions of employment which under Sec. 8(d) of the Act the employer is obligated to bargain over with the union. Respondent's fail- ure here to bargain over that change thus violates Sec. 8(a)(5). Central Cartage, Inc, 236 NLRB 1232, 1258 (1978); Kendall College, 228 NLRB 264 NLRB No. 74 istrative Law Judge also concluded that Respond- ent's creation of the supervisor-nursing position was motivated by antiunion reasons, and therefore violated Section 8(a)(3). We find merit in Respond- ent's exception to the finding of an 8(a)(3) viola- tion. 3 The relevant facts, which are set out in detail in the Administrative Law Judge's Decision, are as follows: Lutheran Homes, Inc., operates two resi- dential and nursing home facilities-one in Fort Wayne, Indiana, and one in Kendallville, Indiana. The Fort Wayne facility, opened in 1965, has ap- proximately 310 beds; the Kendallville facility, started in 1932, has approximately 92 beds. The su- pervisory structure at the two facilities differed until 1980. The Fort Wayne facility's top manage- ment official is the administrator, who reports to the executive director of Lutheran Homes, Inc. Under the administrator is the director of nursing of the Fort Wayne home, then the assistant direc- tor of nursing of the Fort Wayne home, and then the position of supervisor-nursing. All of the li- censed practical nurses (LPNs) at the Fort Wayne home are in the supervisor-nursing position. Re- sponsibilities of persons in the supervisor-nursing position include setting up and distributing medica- tions, ordering drugs, working with aides, keeping up to date on the physical exams, doctor visits, and overall patient care plans, ensuring that their staff of aides complete their duties, and making patient assignments for the aides. The supervisor-nursing position has been in effect at Fort Wayne since prior to 1977. At the Kendallville facility, the top management official is also the administrator, who reports to the executive director of Lutheran Homes, Inc. Under the administrator is the director of nursing and the assistant director of nursing. However, prior to 1980, Kendallville had no super- visor-nursing position or other such low-level su- pervisory job classification. Instead, as the Admin- istrative Law Judge found, the approximately 25 1083, 1088 (1977); Tesoro Petroleum Corporation, 192 NLRB 354, 359 (1971). I We do not find merit in Respondent's exception that the complaint did not allege that Respondent's establishment of the supervisor-nursing position violated Sec. 8(a)(3), and that this issue was not fairly tried. The complaint alleged, inter alia, that Respondent "promoted and granted a wage increase" to four LPNs on November 16, 1980, and "conditioned the granting of the. . . promotion and wage increase" upon the LPNs' abandoning the Union as their bargaining representative in violation of Sec. 8(aX3). At the hearing, Respondent called as a witness Executive Director Fred Nieno, who testified as to how and why the new supervi- sory position was established At the close of the hearing, the Adminis- trative Law Judge noted that the issue of whether Respondent had cre- ated the new position in order to weaken the Union was a viable one. Under these circumstances, we find that the theory upon which the Ad- ministrative Law Judge found an 8(a)(3) violation was alleged in the complaint, and that the issue was fully litigated at the hearing We thus conclude that Respondent was given fair notice and opportunity to defend the 8(aX3) argument. 525 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nurses' aides and 7 LPNs had only the director and assistant director of nursing to supervise them. Usually, neither the director of nursing nor the as- sistant director of nursing was present at the home at night or during the weekends. There had been three-directors of nursing at the home in the 1-1/2 years prior to November 1980. Fred Nieno, executive director of Lutheran Homes, Inc., since approximately 1976, first thought about revising the Kendallville home's su- pervisory system in 1977 while teaching a course on supervision at a local college. He did not act at that time, noting in his testimony that his reasons for not establishing a supervisor-nursing position at the Kendallville facility prior to 1980 were foot- dragging, his perception that things were running smoothly at Kendallville, and the longstanding gen- eral feeling on the part of the Kendallville staff that the Kendallville operation-which was the parent facility-should not need to do everything exactly like the Fort Wayne home. In 1979 Nieno again taught a course on supervi- sion and this further emphasized to him that there were gaps in the Kendallville chain of command. He subsequently reviewed the most recent official job description of the supervisor-nursing position at the Fort Wayne home, which had been prepared in 1977, and discussed in detail with the Fort Wayne director of nursing the supervisor-nursing position. Nieno then prepared, on December 10, 1979, a new job description of the supervisor-nursing position, which was the same as the existing (1977) job de- scription except on two points: the 1979 description added details to the 1977 description's general statement that one of the responsibilities of a person in the supervisor-nursing position was to make patient assignments for the aide staff; and the 1979 description added the Kendallville home as having the supervisor-nursing position. Nieno later asked Kendallville Administrator Paul Dobler to ask informally the LPNs at Kendallville how they would feel about becoming supervisor-nurses at Kendallville. In the summer of 1980, Dobler asked the LPNs individually if they would be interested in becoming supervisors, were management to create a new supervisory position. Dobler did not have a job description to show them at that time, so he was unable to specify what additional duties would be entailed or whether additional pay would be involved. Virtually all the LPNs gave negative responses. By the fall of 1980, Nieno had concluded that the supervisor-nursing position which existed at the Fort Wayne facility should be implemented at the Kendallville home. As he explained this decision, "the second time and even the third time that I even went through the textbook, which does a lot better job of explaining what management is all about than you normally think about while yoe: are, you know, involved in the daily job manage- ment. It had driven home to me the idea that the first-line supervisor really was the key to a good or poor operation." On October 22, 1980, Nieno pre- pared a final supervisor-nursing job description for the Kendallville home. 4 The duties and responsibil- ities of the supervisor-nursing position were further specified in this final version and a pay increase of 30 cents per hour was set for the position. Nieno decided to established the new position at Kendall- ville as of November and to do so by offering to all the LPNs at one group meeting the opportunity individually to take, or not take, the new position. At a November 5 meeting of the LPNs, 5 Direc- tor of Nursing Linda Burkett announced that the position of supervisor-nursing was being established at Kendallville. Burkett read to them the October 22 supervisor-nursing job description, and ex- plained that each LPN was free to accept the new position with its new duties and higher pay, that those who accepted the position would no longer be members of the bargaining unit, and that each was absolutely free to reject the promotion if they so desired. Four of the seven LPNs agreed to take the new position, which became effective Novem- ber 16. On November 17, Marie Kent was hired as an LPN and subsequently was offered, and accept- ed, the position effective December 9. On June 7, 1981, one of the three LPNs who had originally decided against taking the position accepted the position. The Administrative Law Judge concluded that the creation of the new position was "directly re- lated" to the July 1979 certification of the Union and was not "inspired by anything other than the troublesome appearance of the Union at Kendall- ville." In particular, the Administrative Law Judge found that Respondent's establishment of the super- visor-nursing position was motivated by two an- 4 The director of nursing at the Fort Wasne home objected to certain orf the details in this job description Nienot and thiat dirccll- agreed tha the 1977 job description would continue to apply at the Fort Wayne Home until that director's objections were mollified As of the hearing date, the 1977 job description was still in effect at the Fort Wayne home Therefore, while both homes had the position of supervisor-nursing from November 1980 on, the official job description of that positiln differed somewhat between the two homes. 5 Also present at the meeting were Shirley Pohlnik and a geriatric tech- nician. Shirley Polinik was one of three registered nurses working at the Kendallville home; the other two--the director of nursing and the asslsl- ant director of nursing--were supervisors. Polinik was not Neither Po linik nor the geriatric technician was a member of the bargaining unit which was comprised of service and maintenance employees. Including all licensed practical nurses. Both Polinik and the geriatric technician were offered the new supervisor-nursing position; Polinik took the posi- tion, and the record is silent on whether the geriatric technician became a supervisor-nurse. 526 THE LUTHERAN HOME tiunion reasons: to sap the Union's strength by de- creasing the number of employees in the unit, and to remove the LPNs from union representation and thereby make them more amenable to Respondent's authority in the event of a strike. We find the evi- dence in the record insufficient to prove an antiun- ion motivation on the part of Respondent. There is very little support in the record for the inference drawn by the Administrative Law Judge that Respondent created the position in order to decrease the number of employees in, and strength of, the unit. Two facts persuasively suggest the op- posite. First, only 4 persons in a bargaining unit of some 57 employees left the unit. Second, all of those persons who left the unit did so pursuant to an offer-made to 7 of the 57 unit members-to accept or not to accept the new supervisory posi- tion. If Respondent's real motive was to decrease the unit's strength, it would be somewhat hard- pressed to implement a less effective strategy to remove members of the bargaining unit. Further, when Marie Kent was hired as an LPN on Novem- ber 17, Respondent did not place her in the super- visor-nursing position, as could be expected if its real motive was to diminish the unit's strength. Re- spondent soon thereafter offered her-but did not require her to take-a promotion to supervisor- nursing. In light of this clear evidence of lack of interest in eroding the bargaining unit, the Admin- istrative Law Judge points to the testimony of Kendallville Nursing Director Burkett, who testi- fied, with corroboration by Kendallville Adminis- trator Dobler, that Dobler once orally noted that the probable acceptance in the near future of the supervisor-nursing position by one of the LPNs would result "in one less Union member." In our view, this demonstrates at most that Dobler was fully aware that employees who accepted the su- pervisor position were thereby removed from the bargaining unit. The Administrative Law Judge also points to LPN Linda Howdyshell's testimony that on two occasions she told Nursing Director Burkett that the reason for establishing the new po- sition was just to get the LPNs out of the Union. According to Howdyshell, Burkett on both occa- sions agreed, but added that as far as she was con- cerned the new position was established to help re- lieve her and the assistant nursing director of some of their duties, In our view, this testimony falls far short of persuasive evidence that, in instituting an optional program of promotion out of the bargain- mng unit of up to 7 of the 57 bargaining unit em- ployees, Respondent sought to sap the Union's strength. There is simply no support in the record for the inference drawn by the Administrative Law Judge that Respondent created the position in order to remove LPNs from union representation and there- by make them more amenable to Respondent's au- thority in the event of a strike. No witness called by the General Counsel or by Respondent even hinted that this was a consideration on the part of Respondent. Indeed, the parties had just signed, in January 1980, their first collective-bargaining agreement, without a strike. The Administrative Law Judge also relied on three pieces of evidence as demonstrating a general antiunion motivation by Respondent: the timing of the creation of the new position, the apparently haphazard implementation of the new position, and Respondent's executive director's less than categor- ial denial of antiunion motivation. As to timing, it is far from obvious that the creation of a new su- pervisory position almost 1-1/2 years after the cer- tification of the Union, and 10 months after the signing of a contract, is a direct response to the advent of the Union. As to the apparently haphaz- ard implementation of the new position, in that not all of the LPNs were required to become supervi- sors, it is sufficient to repeat that "Respondent is entitled to make its own decisions as to how best to supervise its operations." Hydro Conduit Corpora- tion, 254 NLRB 433, 441 (1981). Moreover, the fact that Respondent did not require the LPNs to become supervisors significantly undermines the Administrative Law Judge's finding that Respond- ent's action was motivated in part by a desire to weaken the bargaining unit's number and strength. As to the Administrative Law Judge's reading of Respondent executive director's testimony, the question which Executive Director Nieno was asked at the hearing was whether the Union's certi- fication had been a motivation for his December 1979 revision of the supervisor-nursing job descrip- tion. Nieno responded that "I do not believe that the Union situation had any impact on preparing those descriptions." Nieno was not asked whether the decision to establish the supervisor-nursing po- sition was due in part to the certification of the Union. Unlike the Administrative Law Judge, we do not find Nieno's testimony to be "less than a certain denial" that antiunion reasons motivated Respondent's creation of the new position. At one point in his Decision, the Administrative Law Judge indicated that proof of an antiunion motive was unnecessary, applying N.L.R.B. v. Erie Resistor Cotp.. 373 U.S. 221, 229 (1963), to the present case. We find application of the Erie Resis- tor doctrine to be inappropriate here: offering, on a noncoercive basis, supervisory positions to 7 of the 57 bargaining unit employees, at a time when no strike had occurred, was occurring, or appeared 527 DECISIONS OF NATIONAL LABOR RELATIONS BOARD imminent, is not "inherently discriminatory" con- duct. In short, we find that the General Counsel has failed to establish that one of the reasons that Re- spondent created the supervisor-nursing position at the Kendallville home was to weaken the Union, reduce the Union's effectiveness in the event of a strike, or otherwise unlawfully affect the Union. We shall therefore dismiss the 8(a)(3) allegation of the complaint. 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,6 and hereby orders that the Respond- ent, the Lutheran Home of Kendallville, Indiana, A Division of Lutheran Homes, Inc., Kendallville, In- diana, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Delete paragraph l(a) and reletter the subse- quent paragraphs accordingly: 2. Substitute the following for paragraph 2(a): "(a) Rescind the position of "supervisor-nursing" established in November 1980, and accord recogni- tion to the Union as the collective-bargaining rep- resentative of the former occupants of that position who were in the bargaining unit." 3. Substitute the following for paragraph 2(b): "(b) Upon request, bargain collectively with the Union as the exclusive representative of employees in the above-described unit with respect to wages, hours, and other terms and conditions of employ- ment." 4. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN VAN DE WATER, concurring in part and dissenting in part: I agree that, in the absence of a valid no-solicita- tion rule,7 Respondent's warning to union steward Sparkman violated Section 8(a)(1) of the Act, be- g In par. 2(a) of his recommended Order, the Administrative Law Judge required Respondent to accord recognition to the Union as the collective-bargaining representative "of the former occupants of [the su- pervisor-nursing] position." As noted in fn. 5, supra, a nonbargaining unit person (registered nurse Polinik) became a supervisor-nurse when Re- spondent established the new position. We shall modify the recommend- ed Order, and conform the notice accordingly, to limit Respondent's rec- ognition and bargaining obligation to only those persons who were mem- bers of the collective-bargaining unit prior to establishment of the new position. I I subscribe to the standard announced in Essex International. Inc., 211 NLRB 749 (1974), for determining the validity of no-solicitation, no-dis- tribution rules. See the dissenting opinion in Intermedics. Inc., 262 NLRB 1407 (1982). cause Respondent failed to show that her conduct impaired production. I further agree with my colleagues that Respond- ent did not create the new job classification, "su- pervisor-nursing," in November 1980 and promote seven LPNs from the bargaining unit for discrimi- natory reasons, and therefore did not violate Sec- tion 8(a)(3) and (1) of the Act thereby. However, unlike the majority, I would dismiss the allegation that Respondent violated Section 8(a)(5) and (1) by establishing the new classification and promoting the LPNs into it without notifying or bargaining with the Union about the change. In so doing, I would overrule Kendall College, 228 NLRB 1083, 1088 (1977), and like cases, holding that, "where an employer promotes bargaining unit employees to supervisory positions, with a conse- quent abolition of bargaining unit jobs, the duty to bargain arises." There is no dispute between my colleagues and myself that Respondent instituted these positions and promoted persons into them for legitimate, nondiscriminatory reasons, as fully set out in the majority opinion.8 That being the case, Respond- ent, in my view, must have a free hand in deciding upon its supervisory complement. The fact that the supervisors here also perform bargaining unit work does not alter their supervisory status. Thus, while bargaining unit work may be somewhat diminished by the establishment of the supervisory classifica- tions, I am persuaded that the balance must be struck against infringing upon an employer's right to create supervisory positions for legitimate rea- sons. I agree with my colleagues' quotation from Hydro Conduit Corporation, 254 NLRB 433, 441 (1981), that an employer is "entitled to make its own decisions as to how best to supervise its oper- ations." s Prior to the creation of the seven supervisory positions, the director of nursing and the assistant director of nursing supervised some 25 nurses aides and 7 LPNs, and were not present at the facility at night or on weekends. 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. 528 THE LUTHERAN HOME WE WILL NOT refuse to bargain collectively with United Food and Commercial Workers Union, Local 10R, as the representative of our employees in the appropriate unit described as follows: All full-time and regular part-time service and maintenance employees, including all nonprofessional charge persons and all li- censed practical nurses employed by the Employer at the Kendallville facility, ex- cluding office clerical employees, profession- al employees, guards, and supervisors as de- fined in the Act. WE WILL NOT discipline employees for en- gaging in activities protected by Section 7 of the Act, and WE WILL rescind the written warning given to Lillian Sparkman on August 15, 1980, and remove all evidence thereof from our files. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain with the Union as the exclusive representative of all employees in the appropriate bargaining unit with respect to rates of pay, hours of employ- ment, and terms and conditions of employment of the employees included within the appropri- ate unit. WE WILL make the Union whole, with inter- est, for the loss of dues suffered as a result of our institution of the classification of "supervi- sor-nursing" in November 1980. THE LUTHERAN HOME OF KENDALL- VILLE, INDIANA, A DIVISION OF LUTHERAN HOMES, INC. DECISION BERNARD RIES, Administrative Law Judge: This matter was heard in Kendallville, Indiana, on September 2-3, 1981. The complaint alleges that the Respondent, The Lutheran Home of Kendallville, Indiana, a Division of Lutheran Homes, Inc.,' violated Section 8(a)(1), (3), and (5) of the Act by promoting and granting wage in- creases to certain licensed practical nurses and denying such promotions to others, by terminating the checkoff of dues for certain employees, and by issuing written warnings to two nurses. The pleadings establish that it is appropriate for the Board to assert jurisdiction here, and that the Charging Party is a "labor organization" as referred to in Section 8(aX3). In making the following findings of facts and As amended at the hearing. conclusions of law, I have considered the entire record in this proceeding, my recollection of the demeanor of the witnesses, and the briefs filed by counsel for General Counsel and counsel for Respondent. 1. ESSENTIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW A. The Establishment of the "Supervisor-Nursing" Position Lutheran Homes, Inc., operates two residential and nursing home facilities in Fort Wayne, Indiana, and one such facility, the subject of the present case, in Kendall- ville, Indiana. The Kendallville home has been in oper- ation since 1932. In July 1979, the Charging Party, following a repre- sentation election, was certified as the bargaining repre- sentative of "[a]ll full-time and regular part-time service and maintenance employees, including all nonprofes- sional charge persons and all licensed practical nurses," with the customary exclusions. In January 1980, the par- ties executed a 3-year bargaining agreement. In the summer of 1980, Paul Dobler, administrator of the Kendallville home, briefly and separately inquired of the seven licensed practical nurses (LPNs) in the bar- gaining unit as to their sentiments about being promoted to supervisory positions; he received a generally negative response. On November 5 of that year, the LPNs (with the exception of one who was absent) were called into a meeting with Dobler and Director of Nursing Linda Burkett; also in attendance were Shirley Polinik, the only nonsupervisory registered nurse,2 and the geriatric tech- nician. Burkett read and explained to the employees a newly promulgated job description for a position de- scribed as "Supervisor-Nursing.": It was pointed out to 2 The other two registered nurses on the payroll were Director Bur- kett and Assistant Director of Nursing Loretta Chupp. Around February 1981. Burkett left Respondent's employ, and Chupp became the director. 3 The entire form reads as follows: LUTHERAN HOMES. INC. JOB KENDALLVILLE, INDIANA SUPERVISOR-NURSING JOB DESCRIPTION PURPOSE-Supervise the nursing area assigned for that tour of duty. QUALIFICATIONS-Graduate of an accredited School of Nurs- ing-either RN, LPN, or graduate Geriatric Technician. PAY RATE-RN, LPN, or GT rate plus .30 per hour. ACCOUNTABLE TO-Assistant Director of Nursing or Director of Nursing DUTIES AND RESPONSIBILITIES--I. Set up and distribute meds to residents. 2. Order drugs and keep updated on new meds, discontinued meds, change of dosage, etc. 3. As the Supervisor- A. Make patient assignments for the aide staff and assign duties to aide staff. Be responsible for seeing that staff has completed assign- ments and chartings. B. Maintain adequate staffing. May approve schedule changes and grant time off in accordance with Home policies. May call in em- ployees to fill in for absent employees. May authorize overtime. Continued 529 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees that the new position carried a 30-cent- per-hour raise, that acceptance of the position would remove them from the bargaining unit, and also that they were absolutely free to reject the promotion if they wished. Four of the LPNs (Judy Frick, Mary McCormick, Cathy Burleson, and Suzey Godsey) agreed to accept the promotion, and it became effective on November 16. One LPN, Becky Egly, said she was not interested; an- other, Betty Hunt, said she would like to think over the offer, but apparently rejected it thereafter. The seventh, Linda Howdyshell, who was not present on November 5, was later offered the opportunity by Burkett, but she declined. Polinik, the registered nurse, agreed to take the position. The record is silent as to the response of the geriatric technician. Thereafter, Respondent ceased checking off dues to the Union pursuant to the authori- zations earlier made by Frick, McCormick, Burleson, and Godsey. In addition to the five employees who were promoted effective November 16, there were subsequently two similar personnel actions. Marie Kent was hired as an LPN on November 17, 1980, and, after a talk with As- sistant Nursing Director Chupp, was promoted on De- cember 9; and Becky Egly, who originally refused the promotion, accepted it on June 7, 1981. The creation and implementation of the "Supervisor- Nursing" position is the central issue in this case. The complaint, as amplified by the General Counsel's brief, asserts that the "promotions" had no real substance and were in fact designed as an antiunion measure, and that Respondent violated Section 8(a)(3) by promoting and granting increases to some of the employees and, on the other side of the coin, by denying such promotions to the others who "refused to so abandon the Union," and further violated Section 8(a)(5) by instituting the new classification without affording the Union an opportunity to bargain about the matter.4 The 8(a)(3) issues presented are, I think, complicated and subtle. The evidence is not, unfortunately, suscepti- ble to brief summarization. Respondent operates 21 shifts of employees weekly. The first (or "day") shift runs from 6:30 a.m. to 3 p.m.; C Insure compliance with Home policies. May suspend any em- ployee who, in the supervisor's opinion, needs discipline and may make recommendation for final disciplinary action. D. Review and evaluate performance of employees supervised in accordance with Home's policies. 4. Work with staff in on the job instruction as needed, help with dif- ficult residents, check residents for change of condition, problems noted by staff, etc. 5. Keep current on physical exams, doctor visits, medicine re-orders, Medicaid recerts., and care plans. 6. Does short and long term planning and coordinates resident care needs with other services and departments. 7. Monitors and supervises maintenance of personnel and resident records. Follow all other duty instructions listed as standing or special orders for the assigned nursing area. Follow any other dir- ectives for which either the Assistant Director or the Director of Nursing feels the Supervisor capable. 4 The complaint also alleges that by terminating the deduction of dues from the promoted employees, Respondent violated Sec. 8(aX5); although the the complaint claims that this action was taken "in order to discour- age membership in and undermine support of the Union," it does not assert that the termination of deductions also violated Sec. 8(a)(3). the second (or "evening") shift from 2:30 to 11 p.m.; and the third (or "night") shift from 10:30 p.m. to 7 a.m. In November 1980, there were about 57 bargaining unit em- ployees, all tolled, at the facility. The two maintenance men, the two laundry department employees, and the five housekeeping employees reported directly to Ad- ministrator Dobler. There were 14 dietary employees su- pervised by their own director. On the two floors of the three-level building on which patients and residents were located, a total of 7 LPNs, a registered nurse, a geriatric technician, and about 25 nurses aides (or nursing assis- tants) covered the 21 shifts. 5 The director and assistant director of nursing, who are present at the facility during the day, are, as earlier noted, also registered nurses. The deployment of nursing personnel is somewhat complicated. The home is, as noted, in operation 7 days a week and 24 hours a day, and many of the employees work only partial weeks, so that the picture is less than crisp. Nursing patients, who require the most attention, reside on the third floor, and the residential patients are on the second floor; accordingly, the bulk of the nursing personnel work on the third floor on any given shift. However, the third shift, which runs through the night hours, is more skeletally staffed than the other two shifts. According to Burkett's and other testimony, all of it not wholly consistent, on the first shift, the only nursing personnel on the second floor was an LPN, while on that shift on the third floor, there were normally one or two LPNs and about five or six nursing assistants. On the second shift, there was a single LPN and no assis- tants on the second floor, and on the third floor, one LPN (and perhaps the registered nurse) and four to five assistants. 6 On the third shift, there was only one LPN on duty covering the two floors; in addition, there was a nursing assistant stationed on the second floor, and an uncertain number of assistants (from one to three) on the third floor. However, 2 days a week, the third-shift LPN was off duty, and the highest-ranking employee present in the home was one of the nursing assistants. While the evidence as to the daily activities of the LPNs and the nursing assistants is less than abundant, it would appear that their routine functions corresponded to those ordinarily associated with such positions, as de- scribed by the Board in many cases.7 LPNs generally oversee the routine care of patients, their therapy, and their medications, and are assisted in doing so by the aides. There can be little doubt that virtually all of the working effort of the LPNs is ordinarily devoted to the performance of routine, nondiscretionary, manual patient care, and that the direction which they give to the assis- tants in so performing is not the kind of responsible guid- ance which characterizes supervisory status. There is no indication in the record that Respondent took the posi- tion, prior to the 1979 election, that LPNs were statutory s Dobler initially identified 23 such nursing assistants as of November 8 from a schedule shown to him; in subsequent testimony by Dobler and Burkett, however it appears that there may have been a few more such personnel on the payroll at that time. s See the testimony of Marie Kent. 7 See, e.g., Sunset Nursing Homes. Inc., d/b/a North Miami Convales- cent Home, 224 NLRB 1271 (1976); New Fern Restorium Co., 175 NLRB 871 (1969). 530 THE LUTHERAN HOME supervisors by virtue of their division of functions with the assistants." The Board has refused to consider LPNs to be supervisors despite the fact that they "schedule routine tasks on a daily basis for the aides and orderlies who are assigned to their floors" and "give instructions to these employees and also discuss proper care of indi- vidual patients." Sol Henkind, an Individual, d/b/a Greenpart Care Center, 231 NLRB 753 (1977). Whether the promoted LPNs actually became statu- tory supervisors is governed, of course, by Section 2(11) of the Act: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promise, discharge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment. Although all portions of the new "Supervisor-Nurs- ing" job description, earlier set out, are to some degree relevant to the inquiry, attention must necessarily focus on paragraph 3 ("As the Supervisor-"), which Burkett characterized, at the November 5 meeting, as "really the only big change" in functions Of particular interest here, it would seem, is the extent to which Burkett's per- ception was accurate. As to subparagraph 3, A, the record fairly establishes that, prior to the promotions, the LPNs "[made] patient assignments for the aide staff and assign[ed] duties to aide staff," and, as well, were "responsible for seeing that staff has completed assignments and chartings." Subparagraph 3, B, seems potentially more signifi- cant.'10 The provision for maintaining "adequate staffing" seems to be only a summary of what follows; no other explanation was given at the hearing. The authority to "approve schedule changes," in a permanent sense, would appear to be something new; there is no evidence that it has ever been exercised by the promoted employ- ees, from November 1980 until the hearing in early Sep- tember 1981.1' The right to "authorize overtime" may not have been an innovation; Becky Egly testified, with- out detail, that before her promotion, she had "okayed overtime "12 There is no indication that any of the pro- ' Marie Kent, who began emnploment as an LPN on November 19, alter the new system was instituted, but did not become a "supervisor" until December 1Q teltified that "before and after" her promotion, she would "tell the girls I hich patients they're going to take care of" A recording of this meeting was made, and a transcript is in evi- dence. '0 "Maintain adequate staffing May approve schedule changes and grant time off in accordance with Home policies. May call in employees to fill in for absent employees. May authorize overtime." " Cathy Burleson testified, however. that she has approved temporary schedule changes of particular days since becoming a "supervisor," for vacations and such 12 1 thought all of the l.PN witnesses were most credible That is not to say that some conclusionary remarks, which they had not thought through, should be relied upon. moted nursing supervisors have actually attempted to "authorize overtime." The inherent authority to "call in employees to fill in for absent employees" was, the record shows, in fact ex- ercised by LPNs prior to the promotions; it frequently became necessary for the nurses to call other employees to fill the vacancy of a missing one. Indeed, even after the promotions, according to Linda Howdyshell, who did not accept a promotion, she has had occasion to call in personnel on the weekends, although she stated that she would do so during the week only if a "supervisor" told her to. And Marie Kent, who began work on No- vember 17, but did not accept a promotion until Decem- ber 9, testified that she called in employees before she was promoted. ' 3 The evidence as to the authority to "grant time off in accordance with Home policies" is varied. Judy Frick, a promoted employee who testified for Respondent, said that she has granted time off to employees since her pro- motion, but she did not elaborate as to the circumstances. Cathy Burleson, who began employment with Respond- ent in January 1980, said that, prior to becoming a super- visor, she had never granted time off to nursing assistants without the permission of a supervisor, but has done so on her own authority after her promotion; she also did not furnish details. Betty Hunt, on the other hand, testi- fied that, as a nonsupervisor, she "granted time off, like on weekends, if someone came to me and needed to be off because she was sick or there was sickness at home." It should be recognized that none of the components of subparagraph B is specifically referred to in Section 2(11) of the Act, but it might be said that the authority spelled out in that subparagraph could be considered to fall within the powers to "assign," "transfer," or perhaps "responsibly to direct." Subparaqraph 3, C, is perhaps the most material new provision. 4 There is no hint in the record of any pre- promotion authority possessed by LPNs to "suspend" other employees, but the job description clearly author- ized the "Supervisor-Nursing" to do so, when, "in the supervisor's opinion," such action is "needled]." Section 2(11) expressly lists the authority to "suspend" as a su- pervisory attribute. The evidence does not disclose that any of the pro- moted employees has attempted to invoke such suspen- sion authority since November 1980. In the more general area of discipline, it would appear that things have not changed much in the postpromotion period. Cathy Bur- leson, testifying for Respondent, said that, prior to her promotion, she once orally reprimanded a nursing assist- ant (althouqh she had not been told she was authorized to do so), and exdirector Burkett said she had, before the promotions, heard an LPN criticize an assistant. Marie '3 The practice was not, however, unmixed. Judy Frick, who began employment in March 1980, said that prior to becoming a supervisor, she would "usually" call Burkett first; and Suzey Godsey. who started in February 1980, testified that she called Burkett in "all" such cases, but does not do so now that she is a "supervisor." 14 This provision reads as follows: "Insure compliance with Home policies. May suspend any employee who, in the supervisor's opinion. needs discipline and may make recommendation for final disciplinary action." 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kent felt that she had the authority to reprimand both before and after her promotion. Suzey Godsey, however, testified that, subsequent to her promotion, she "wrote up" two employees, one for having a male friend in the building, and the other for tardiness. There is no documentary evidence in the record about the first incident. As to the second, an em- ployee status report in evidence, dated March 5, 1981, shows a "Warning" for "excessive tardiness" signed, in accordance with the dictates of the printed format, as "Requested by" Godsey and "Approved by" Dobler. There is also in evidence an earlier note written by Godsey on February 23 stating that she had told the em- ployee that day that "she was not to be tardy for work any more. That it was straight from Mr. Nieno and also this was an employee policy." Fred L. Nieno is the ex- ecutive director of the parent organization; Godsey ex- plained that she had talked to him at a staff meeting about the tardy employee and "asked Mr. Nieno what I could do." He told her to give the employee a verbal warning and "if that didn't do any good and she clocks in late again to write her up." This sort of uncertainty by the "supervisors" about their authority manifests itself more than once in the record. Burleson testified to a problem around late De- cember involving two assistants who consistently failed to report for work on time. Apparently, Burleson's re- monstrances fell on deaf ears, because "it finally came down that Laurie [Chupp] had to talk to these girls and introduce me and whoever the other nurse was-I'm not sure-as a supervisor and that they were supposed to be up on the floor at 2:25 and must clock in. .... She told them that when we are there, we are in charge and that they are responsible to us." On the one hand, Burleson's concern appears to proceed from a management-oriented interest; on the other, the facts that the assistants did not seem to recognize her status a month or so after her pro- motion and that Burleson took no action on her own, but rather sought help from Assistant Director Chupp, tend to weaken the sense of a strong supervisory self-image. Another occasion of apparent lack of supervisory iden- tification was described by Judy Frick. She told of an in- stance, after she became a "supervisor," in which an as- sistant had "refused" to take a blood pressure reading needed for a patient with severe chest pains. Frick made the reading herself. got the patient to the hospital, and the next day asked the aide the reason for her refusal. The aide replied that "it was just the mood she was in." Frick, a part-time employee, testified that she did not "reprimand her in any way" that she could recall. In addition, as will later be seen, in February 1981, Becky Egly, who had not become a supervisor, was in- volved in an incident allegedly implicating insubordina- tion toward new "supervisor" Mary McCormick. When Egly questioned the absence of McCormick's name from the written reprimand given to her, she was told by Chupp that McCormick "had not been trained yet, to do write-ups...." And Marie Kent told of an instance when "there was reprimand due," but after discussing the situation with the director of nursing, she "didn't reprimand" the offending employee. Finally, subparagraph 3, D, states, "Review and evalu- ate performance of employees supervised in accordance with Home's policies." The record indicates that at least some of the LPNs had made out annual evaluations-as- signing numerical values to various characteristics on printed forms-for nursing assistants long before the pro- motions. Linda Howdyshell had done so prior to mid- 1979, Betty Hunt did several in early 1980, Suzey Godsey did them on the night shift, and Director Bur- kett testified that when she herself had worked at the fa- cility as a nurses aide, probably in the early 1970's, the LPNs had evaluated the aides "on a regular basis." The prepromotion use of LPNs for this task seems to have been somewhat spotty, however. Egly, who became full time in July 1979, said that she made no evaluations before becoming a "supervisor" on June 7, 1981, but has done so since, and Burleson, who started in January 1980, gave similar testimony. I have the impression, not definitively supported by the record, that, until the pro- motions, evaluations were simply made and filed, and that current practice is to discuss the evaluations with the employees appraised. There is here also some indication of supervisory ten- tativeness; Marie Kent, hired on November 17 and soon promoted, said she had done "one or two" evaluations since then, but she "usually had a little consultation with the director of nursing before that was done." The bar- gaining agreement does not expressly provide for merit wage increases, and the record gives only one indication of a use to which evaluations are put-Dobler testified that evaluations would have an important impact on the question of retention of probationary employees. "Evalu- ation," as such, is not a 2(11) supervisory criterion, but it does seem relevant to supervisory status. There are other matters which bear, in varying de- grees, upon the question of conferral of true supervisory authority. The newly promoted employees were issued name tags with the words "Nursing Supervisor" on them. The new "supervisors" received 30 cents per hour more-after December 15, 1980, they were paid $5.25 per hour and the other LPNs $4.95. The November 28 issue of the Home newsletter offered "congratulations on the following nurses' promotion to nursing supervision positions," and listed the five names. Dobler testified that on December 5, he met with the new "supervisors" and gave them an opportunity to review the job descriptions and ask questions. He also gave some fairly vague testi- mony about a program of supervisory training conducted by Executive Director Nieno "later" on.'15 Other evidence contributes to the picture. Becky Egly said that when she finally became a supervisor in June 1981, the promotion resulted from a meeting at which she and Betty Hunt were told by the current director and assistant director that Respondent "needed another day supervisor," and that Egly, Hunt, and Howdyshell, none of them "supervisors" at the time, had to decide how to accomplish that end. As I understand Egly, how- ever, the possibilities included alternatives not involving supervisory status: "[W]e could either-one of us volun- '' Nieno's testimony on this point presumably would have been nmore helpful. 532 THE LUTHERAN HOME tarily take it, supervisory; one of us voluntarily take the 3 to 11 p.m. shift permanently; or we could rotate the 3 to II shift between the three of us, but that seniority did not count, as far as, you know, one of us would have to take it." Egly further recalled that when she had decided to become a supervisor, the assistant director told her that "supervisors would be forced to take more responsi- bilities, because [the director and assistant director] were being called too much on the weekends for things." At this point, some 6 months after the promotions, it is hard to understand why the "supervisor" already on the 3-11 shift on weekends was calling so much, or how Egly's presence could relieve that problem. I also note that this discussion occurred 4 months after the com- plaint issued. Egly testified that, when she was promot- ed, no one discussed with her the duties and responsibil- ities of a supervisor, nor was she given a copy of the job description. The problem of the director and assistant director being bothered at home is here and there referred to as one which, it was anticipated, would diminish as a result of the promotions, but it does not seem to have been much ameliorated, at least as far as Judy Frick was con- cerned. She testified that, since becoming a supervisor, she has called the director or assistant at home 8-10 times for assistance with problems; she gave no exam- ples. There is other testimony which suggests a certain rec- ognition of the more elevated status of the new "supervi- sors." Nonsupervisory LPN Hunt, for example, testified that while she will authorize ill employees on her shift to leave, she will do so only if there is no "nursing supervi- sor" present; I assume her reference is to the new posi- tion. Linda Howdyshell spoke of ordering drugs on weekends when there is no supervisor there or when the "supervisor has been busy"; the "supervisor" here re- ferred to was Burleson, whom Howdyshell seemed to regard as being of somewhat loftier rank. It has often been said that Section 2(11) "is to be inter- preted in the disjunctive .... and the possession of any one of the authorities listed in § 2(11) places the employ- ee invested with this authority in the supervisory class." Ohio Power Co. v. N.L.R.B., 176 F.2d 385, 387 (6th Cir. 1949); Jas. H. Matthews & Co, v. N.L.R.B., 354 F.2d 432, 434 (8th Cir. 1965). It has, moreover, frequently been held that the section "does not require the exercise of the power described for all or any definite part of the em- ployee's time. It is the existence of the power which de- termines the classification." Ohio Power Co. v. N.L.R.B., supra at 388; N.L.R.B. v. Edward G. Budd Mfg. Co., 169 F.2d 571, 575 (6th Cir. 1948). The Board and the courts, however, have evinced reluctance to allow those two principles to form an easy escape hatch for employers who would benefit from categorizing some of their em- ployees as statutory supervisors. Thus, after referring to the disjunctive format of the section, the court of appeals in N.L.R.B. v. Security Guard Services, Inc., 384 F.2d 143, 147 (5th Cir. 1967), noted, "Nevertheless, the statute expressly insists that a supervisor (I) have authority (2) to use independent judgment (3) in performing such su- pervisory functions (4) in the interest of management. These latter requirements are conjunctive." And in Inter- national Union of United Brewery. Flour. Cereal, Soft Drink and Distillery Workers of America,. AFL-CIO [Gulf Bottlers, Inc.] v. N.L.R.B., 298 F.2d 297, 303 (D.C. Cir. 1961), the court of appeals expansively stated: It has seemed to us that if a mere employee at some stage may become a supervisor, the transition becomes an actuality when he is found to posses real power "in the interest of the employer" to take meaningful action with respect to the statutory tests. It is not alone that he may hire or fire or layoff or discipline. He must do so in the interest of the employer. He must then, when acting, become in effect a part of management, not simply a lead- man or a straw boss. The entire work force from the president down to the messenger boy in one sense acts in the interest of the employer, as Con- gress well knew. Surely it contemplated some other test than is afforded by a sheerly literal reading of section 2(11). We recently spelled out various criteria to be ap- plied by the Board in an individual, case-by-case ap- proach. We had in mind particularly that there must be a determination of status based upon the "nature" of the supervisory position and "how com- pletely the responsibilities of the particular position identify the holder of the position with mange- ment," all "because of the infinite possible variations in responsibilities enumerated in § 2(11)." There has also been extensive judicial consideration of the subject of what constitutes the real existence or pos- session of a statutory supervisory attribute. In N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), the court, apparently rejecting the notion that nominal "possession" is sufficient, stated, "[T]he employer cannot make a supervisor out of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enu- merated supervisory functions. The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title." (Emphasis sup- plied.) And the Court of Appeals for the District of Co- lumbia Circuit followed this approach, and that of the Fifth Circuit, in Food Store Employees Union, Local 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO [G.C. Murphy Co.] v. N.LR.B., 422 F.2d 685, 690 (1969): "As far as the in- struction sheet is concerned, it is well established that 'theoretical or paper power will not suffice' to make an individual a supervisor. N.L.R.B. v. Security Guard Serv- ice, supra at 149. The test is what power the work actually exercises, and the finely-shaped gradations of power in any enterprise proscribe a wooden reading of Section 2(11)." (Emphasis supplied.) The Board, in like vein, has stated, "In spite of the job description, however, the Board law is clear that the mere use of a title or the giving of 'paper authority' which is not exercised does not make an employee a supervisor." Sunset Nursing Homes, Inc., supra, 224 NLRB at 1272. But cf. Mid Alle- gheny Corporation, 233 NLRB 1463, 1465 (1977): "It is DECISIONS OF NATIONAL LABOR RELATIONS BOARD well settled that possession of supervisory authority is enough even if not execised .. . ." ' There is, as may be seen, some lack of consistency and clarity as to the tests to be applied, and I consider the present issue a difficult one. The written authority of the present "supervisors" to "approve schedule changes" and to "suspend any employee who, in the supervisor's opin- ion, needs discipline" certainly seems to fall within the statutory definition. In the 9 months between the original promotions and the hearing, however, no "supervisor" even attempted to exercise such authority, and the dem- onstrated timidity and uncertainty of some of them about their powers suggest that, at least at this point, they may not be likely to do so. On the other hand, in those 9 months, there may have been no seemly occasion for sus- pension or rescheduling. The authority is inescapably there, memorialized in writing,' and there is no particu- lar reason to believe that Respondent would not honor any attempt by the "supervisors" to exercise such au- thority; indeed, Respondent's strong concern that these employees be deemed statutory supervisors, probably for the purposes discussed hereafter, leads me to believe that Respondent would willingly do so. There are cases which imply that supervisory status should not be be found here. In Security Guard Service, Inc., supra, the court and the Board (154 NLRB 8 (1965)) found to be nonsupervisory certain guard ser- geants who were in charge of from one-three guards, who, like the guard captains, wore white caps and gold badges, who were usually the highest ranking person on a shift, who maintained logs and kept timecards, and whose employee manual provided that "Violation of any one or more of the following rules is sufficient reason for immediate suspension by the supervisor." The sergeants, however, had never exercised any true supervisory au- thority. The court said (384 F.2d at 149): The supervision must have both conceptual and practical aspects and must be meaningful in respect to the position occupied by the employee. Imple- mented intentions are integers in the formula. A su- pervisor may have potential powers, but theoretical or paper power will not suffice. Tables of organiza- tion and job descriptions do not vest powers. Some kinship to management, some empathic relationship between employer and employee, must exist before the latter becomes a supervisor for the former. In Sunset Nursing Homes, Inc., supra, involving the issue of the status of LPNs, the Board found the case to be "rather close" because of a written job description (issued after the election petition was filed). (224 NLRB at 1273.) The description provided that LPNs were to make "effective" recommendations concerning such mat- ters Ps hirings, discharges, supensions, and the like. The Board said, however, that the proper course for it was to "analyze what supervisory functions, if any, the LPNs actually perform," id. at 1272, and concluded that the 16 In Mid Allegheny, supra, the employee, found to be a supervisor, had succeeded to an established supervisory position shortly before the hear- ing, but had not yet exercised any supervisory authority. " A copy is contained in a policy book maintained in the Home LPNs were not supervisors, despite evidence that LPNs had issued warning slips to nursing assistants, evaluated them, authorized employees to leave early in certain cir- cumstances, and exercised other indicia of some authori- ty. In the present case, Respondent has committed in writ- ing to certain authority that the new "supervisors" are permitted to exercise, and components of that authority clearly fall within the 2(11) statutory definition. Al- though the grasp of at least some of the fledgling "super- visors" upon that authority is less than vigorous, and might even be described as "weak or jejune, "N.L.R.B. v. Security Guard Services, Inc., supra, 384 F.2d at 147, others seem to have been imbued with an embryonic "empathic relationship" with management by virtue of the promotion, id. at 149. While a contrary conclusion would seem quite reasonable, I am inclined to believe, dubitante, that there has been a true (even anxious, as dis- cussed below) conferral of supervisory authority here. Compare Tesoro Petroleum Corporation, 192 NLRB 354 (1971), where the Board found to be supervisory four newly created shift supervisor positions with a broad written description of powers, despite the absence of a showing of exercise of those powers. I nonetheless conclude that Respondent violated Sec- tion 8(a)(3) by instituting the new positions, even if they were in fact supervisory. I" It seems clear that the decision to create additional su- pervisory posts was directly related to the advent of the Union. Executive Director Nieno testified that the idea that a revision of the supervisory system was needed at Kendallville first occurred to him in 1977, when he was teaching a course in supervision at a local college. He did not pursue the notion, however, until 1979, when he again started thinking about it as he offered another course in supervision at one of the sister homes in Fort Wayne. This time, he was moved to action. It will be re- called that the Union was certified at Kendallville in July 1979. Nieno testified that he discussed the matter with Dobler, Dobler's nursing director, and the Fort Wayne nursing director. There was in existence a job description for the Fort Wayne home for a position called "Supervi- sor-Nursing"; the one in evidence is dated February 15, 1977. It generally describes the technical functions of an LPN, but the only supervisory-type attributes mentioned are "Make patient assignments for the aide staff." "Work with aides as far as on the job instruction w.hen needed," and "Be responsible for seeing that her aide staff have completed their assignments and charting." On Decem- ber 10, 1979, Nieno prepared a draft job description for a "Supervisor-Nursing" position pertaining to both the "Fort Wayne and Kendallville" homes. This draft ex- panded the former "Make patient assignments for the aide staff" to read: 1' It has been held that conversion of employees to independent con- tractor status may violate Sec. 8(a)(3), even though the conversion may have actually effected a change in status. United Dair, Farmers Coopera- rive Association, 242 NLRB 1026 (1979), enfd. on this point 633 F.2d 1054, 1057, fn. 8 (3d Cir 1980) 534 THE LUTHERAN HOME Make patient assignments for the aide staff, and call in employees to fill in for any one who did not come in as assigned. May suspend any employee who, in the supervisor's opinion, need [sic] disci- pline, may call in temporary replacement, and may make recommendation for final disciplinary action. Otherwise, the earlier job description remained the same. After preparing this document, Nieno asked Dobler to conduct an attitude survey among his licensed personnel, which Dobler did in the summer of 1980. On October 22, Nieno prepared the present job description, as earlier set out, but made it applicable only to the Kendallville home, and he told Dobler to begin the implementation process earlier described. Asked whether the unionization of Kendallville had any influence on his decision to create a new supervisory position there, Neino's answer was less than a certain denial: "At that stage and time, I do not believe that the Union situation had any impact on preparing those de- scriptions. I'm going from memory and I'm trying to think back, but I don't recall that it did." Given his posi- tive explanations of why the action was taken, as set out below, it would seem that Nieno should have been able to proffer a more absolute denial of Union causation. In any event, those explanations are themselves seemingly explicable only in terms of the appearance of the Union, as hereafter discussed. Thus, Nieno testified that he did not act to institute at Kendallville a "supervisory" system like the one at Fort Wayne until 1980 due to his own "foot dragging" and "secondly, if you have something that is working and the wheels aren't squeaking too loud, you tend to run it." He went on, "[T]his thing floated quite nicely until things began to get tangled up. That's when you get all kinds of regulations and all kinds of things superimposed on what was a simple operation; and finally, you had to begin to face it and say, 'Hey. It's got to be changed around."' At another point, Nieno stated, "By [1980], we had deter- mined that it was just about critical that we should be getting something going in order to give us a chain of command that started from the rank and file and did carry through to top management." Despite the fact that Nieno was a personally impres- sive witness, I cannot conclude that the new classifica- tion was inspired by anything other than the troublesome appearance of the Union at Kendallville. The Home had been in operation there since 1932. Nieno had been its executive director since 1965. Even though he put a "Su- pervisor-Nursing" classification into effect at Fort Wayne in 1977, and was purportedly thinking along the same lines at that time with relation to Kendallville, he in fact did nothing about the latter situation until 1979, after the arrival of the Union. This 1977 occasion would seem to have been an ideal time to do something about the situation at Kendallville, since, according to Nieno, "It was about in '77 when the inspectors would come in and say 'You must have a job description for every- body."' He offered no explanation of how the "inspec- tors" overlooked the situation at Kendallville, of how "things began to get tangled up," of what was the nature of the "all kinds of regulations and all kinds of things su- perimposed on what was a simple operation," or of why it became "just about critical" in 1980 to change the su- pervisory structure. The record shows that the new job description has not yet been put into effect at Fort Wayne, because, said Nieno, the director of nursing there did not like the format or the "precise wording" of it, and "frankly, we just haven't gotten to go back and check whether a common wording can be worked out." Why it seemed "just about critical" in 1980 to endow Kendallville LPNs with authority to suspend, change schedules, etc., was never explained in terms of past experience; nor was any explanation offered as to why this new program world not work and was not also critically needed at Fort Wayne, other than that the two operations were different in size. There is also testimony by Burkett, essentially cor- roborated by Dobler, that the two had often discussed a list of union members on dues checkoff routinely fur- nished to him by the Union, and that Dobler once spoke in terms of the probable acceptance of the new position by one of them as resulting in "one less Union member." I did not believe Dobler's attempt to portray this refer- ence as an innocuous reference to a ministerial proce- dure, and I think it did exhibit a relish on his part for diminishing the strength of the Union. Similarly, on an- other occasion, Dobler noted to Burkett that the dis- charge of two nurses aides result in "two less Union members." That the motivation was not purely a business one is, I think, further indicated by the rather haphazard way in which the promotions were effected. For one thing, the uncontradicted testimony of Becky Egly was that after the November 5 meeting, Assistant Nursing Director Chupp told her that she had not even been informed ahead of time that Dobler and Burkett in- tended to introduce the new classification. Moreover, the promotions were offered to all seven of the LPNs,' 9 and, presumably, if only one or two had ac- cepted, they would have become "supervisors" even though the other five or six remained "rank and file." This would be a patently absurd situation (indeed, it was fairly awkward when only four of seven were promot- ed). 20 The obvious method of putting into effect a system thought to be "just about critical" would have been to require that all seven LPNs be promoted. 21 According to the transcript of the November 5 meet- ing, Dobler told the employees that the need was such that, if they were not interested, "we would have to go to the outside and bring in someone that are [sic] inter- ested in doing something like this." But the record shows that Marie Kent was soon thereafter hired as an LPN, on November 17, and only later did the assistant director speak to her about accepting a promotion.22 The record 9a And the registered nurse. 20 Equally unsettling is the fact that, if the registered nurse had not accepted the promotion, she would then presumably be a subordinate of those LPNs who had. 2t Nieno testified at one point that "It was once determined that the ideal might be nine." He did not clarify this determination. 2a On brief, Respondent argues that this implies a lack of interest in eroding the bargaining unit. That is not an unreasonable argument. To Continued 535 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further shows that on 2 days a week, when the third shift LPN was off duty, the highest authority in the home was a nursing assistant, but no evident effort was made to patch up that defect in the supervisory struc- ture. Moreover, according to Linda Howdyshell, it was not until June 1981 that a new "supervisor" (Burleson) was assigned to the first shift on weekends-before then, the command staff continued to consist of Howdyshell and Hunt, both nonsupervisory employees, presumably in charge of the five nursing assistants who normally work on the second shift. All of the foregoing makes almost irresistible the infer- ence that the creation of supervisory positions at Ken- dallville was directly responsive to the presence of the Union. The institution of the program may have been simply an effort to sap the Union's strength by diminish- ing the size of the bargaining unit. Direct evidence sup- porting this conclusion was given by Linda Howdyshell, who said that Burkett agreed with Howdyshell on two occasions when the latter surmised that the new program was created "just to get us out of the Union so that we wouldn't have the Union there. " 2' It also seems prob- able that a principal purpose was, more positively, to remove tile LPNs from union representation and make them more amenable to Respondent's authority in the event of a future strike and for similar purposes. In N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 229 (1963), the Court acknowledged the Board's proper role of "weighing the interests of employees in concerted ac- tivities against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended conse- quences upon employee rights against the business ends to be served by the employer's conduct." The Court concluded, despite its recognition that "it may have been necessary [for the employer] to offer super-seniority to attract replacements and induce union members to leave the strike" in order to keep production going, that the offer could not, in view of its particular impact upon protected concerted activity, be considered an acceptable "overriding business purpose justifying the invasion of union rights." Id. at 231. I have here rejected Respond- ent's assertion that normal business considerations prompted the new classification. I infer that at least one real motivation was to align the LPNs with management for purposes of combating potential concerted action. I also believe that the evidence supports the inference of the companion motive of reducing the ranks of unit strength and union membership, but I would find a viola- tion based solely on the first purpose inferred, by anal- ogy to the analysis in Erie Resistor.24 my mind, however, the dominant inference is the impeachment of Dobler's profession of the importance of, and need for, the new classifica- tion. 23 Howdyshell conceded, however, that Burkett also said that "as far as she was concerned, it was to help relieve her and Laurie Chupp of some of their duties." 24 There are references, as earlier noted, to employees being told that the conferral of the new authority would save the top echelon personnel from being bothered at home with problems. That could conceivably be an effect of the change, although it did not seem to work out that way in Frick's case. But Nieno did not appear to have any such purpose in mind, as indicated by his references to such matters as "all kinds of regulations and all kinds of things superimposed on what was a simple operation." Making supervisors out of employees has a foreseeably erosive effect upon the power and union adhesion of the remaining bargaining unit employees, who may well have counted upon the inclusion of the now-supervisors in their ranks when they committed themselves to union representation; the alliance of LPNs with the other em- ployees in an industrial dispute at the home could well prove decisive. In addition, the new program deprives the elevated su- pervisors of an uncabined choice of remaining in the bar- gaining unit. I recognize, of course, that the LPNs were afforded the option of staying with the rank and file, but I do not believe that that factor is dispositive. The op- portunity to earn 30 cents more per hour, as well as the unhappy prospect of suddenly having to accept a station below former equals, make the offer inherently coercive. Dobler recognized this quite clearly when, as he conced- ed, he told Burkett that Godsey would probably accept the proffered promotion because she "needed money." "Voluntary" or not, the new system obviously was laden with powerfully seductive benefits, and a tempting choice was presented. In Erie, the Court noted that one vice in the superseniority offer was that it was "in effect offering individual benefits to the strikers to induce them to abandon the strike." 373 U.S. at 230. Given these encroachments upon concerted activity protected by Section 7 of the Act, it would be no de- fense to say that Respondent created this new classifica- tion because of the anticipated usefulness of the new "su- pervisors" in future industrial disputes. That is not, in my view, an "overriding business purpose justifying the in- vasion of union rights"; indeed, it serves a considerably less legitimate operational need than an award of super- seniority designed to keep a plant iri production during a strike. Accordingly, I conclude, despite my razor-thin con- clusion that Respondent conferred actual supervisory au- thority upon the new classification, that the establish- ment and implementation of that classification violated Section 8(a)(3) of the Act.25 Respondent also independently violated Section 8(a)(5) of the Act by creating the "Supervisory-Nursing" posi- tions; accordingly, a remedy would be required on that basis alone. The parties stipulated that Respondent did not inform the Union of the promotions before they occurred. The Board holds it violative of Section 8(a)(5) for an employ- er to "unilaterally promote employees to supervisory status if such actions would decrease the work per- formed by unit employees." Central Cartage, Inc., 236 NLRB 1232, 1258 (1978). Accord: Kendall College, 228 NLRB 1083, 1088 (1977); Tesoro Petroleum Corporation, a5 I recognize that this conclusion is founded upon a theory which de- parts from that urged by the General Counsel (although it may be said to be consonant with the allegations of the complaint). In my view, howev- er, this is a "material issue which has been fairly tried" and which there- fore "may be decided by the Board." N.L.R.B. v. Thompson Transport Co., Inc., 421 F.2d 154, 155 (10th Cir. 1970). At the hearing, Respondent presented Executive Director Nieno for the sole purpose of explaining and legitimizing the genesis of the new classification, and I informed counsel at the close of the hearing that I considered this approach to be a viable issue. 536 THE LUTHERAN HOME supra, 192 NLRB at 359. The creation of the new classi- fications plainly promised to, as it in fact did, remove from the unit a substantial amount of employee work, both immediately and as future LPNs were put into these new categories. Consequently, Respondent's failure to consult with the Union regarding the institution of this program was inconsistent with its obligations under Section 8(a)(5). Respondent's brief contends that the complaint "does not allege that the establishment of the positions or the fact that they were offered to bargaining unit employees were violations of Section 8(a)(5) or any other Section of the Act." The amended complaint does, however, assert that by unilaterally "promot[ing] and grant[ing] a wage increase" to six named LPNs in November and Decem- ber 1980 and June 1981, Respondent violated Section 8(a)(5). These allegations seem to comfortably encompass the establishment of the program. I should note that if it were to be held that Respond- ent did not, in fact, successfully convert these employees to supervisors, I would even more readily conclude that a violation of Section 8(a)(5) occurred, since Respondent would then have modified, without notice or bargaining, the terms and conditions of employment of employees who remained in the bargaining unit. Anticipating that possible result, Respondent argues on brief that a provi- sion in the bargaining agreement ("This Agreement pro- vides minimum standards only and shall not prevent the Employer from granting additional payment or benefits so long as such granting is not otherwise violative of this Agreement or state or federal laws") privileges the uni- lateral grant of additional wages to some LPNs. This contention does not, of course, resolve the nonwage status aspects of the change. Moreover, I doubt that the Board would find that the provision constitutes a "clear and unmistakable waiver" by the Union of its right to be consulted about modifications in the wages and other conditions of employment of represented employees. Re- spondent's brief points out that in N.L.R.B. v. Honolulu Star-Bulletin, Inc., and Advertise Publishing Co.. Ltd.. d/b/a Hawaii Newspaper Operators, 372 F.2d 691 (1967), the Court of Appeals for the Ninth Circuit held that sim- ilar language ("Nothing in this agreement shall limit the right of the employer at its discretion to pay amounts in excess of the salary set forth above") constituted a waiver. The Board, however, had effectively held to the contrary, 153 NLRB 763, and I am, of course, obliged to apply the Board's view of the law. Finally, the complaint asserts that Respondent violated Section 8(a)(5) by terminating deduction of union dues for McCormick, Frick, Burleson, Godsey, Kent, and Egly at various times in 1980.26 As Respondent points out, the contract only provides that the Respondent "agrees to deduct Union dues and initiation fees from the wages of employees in the bar- gaining unit who voluntarily provide the Employer with a written authorization." (Emphasis supplied.) I have reached a (debatable) conclusion that the promoted LPNs attained supervisory status. It can be nonetheless a6 The evidence shows, however, that Kent never authorized dues de- ductions argued that they remained "employees" in the eyes of the law because of the improprieties attending their con- version; that, however, is a metaphysical swamp which hardly seems worth entering. A more practical disposition is to dismiss the separate allegation relating to dues checkoff and to order Re- spondent, pursuant to the more inclusive 8(a)(5) and (3) findings, to reimburse the Union for loss of dues. Resto- ration of the status quo ante is the normal remedy for such violations, and it is patently appropriate here to compensate the Union for the dues losses flowing from the violations found. B. The Sparkman and Egly Warnings The complaint alleges that Respondent violated Sec- tion 8(a)(1) by issuing a "discriminatory and unwarranted written warning" to Nursing Assistant Lillian Sparkman on August 15, 1980, and another such warning to LPN Becky Egly on February 9, 1981. Sparkman, an employee since 1978, had been appoint- ed union steward on January 4, 1980. On August 9, she was assigned to the duty of escorting patients to the dining room and, after they had eaten, returning them to their rooms. At the breakfast meal on August 9, she had taken and returned some 40 patients to and from the dining room by about 8:30 a.m. A single remaining diner, a Ms. Sheets, had not completed her meal, and, although Sparkman's breaktime had arrived, she waited for Sheets to finish. While waiting, Sparkman briefly conversed with a passing dietary employee, who said she was going home because she had already worked 40 hours that week. Some other dietary employees were sitting in the dining room at the time, taking their scheduled break. Thinking about what the departed dietary employee had said, Sparkman "walked back" to where the others were sit- ting and, upon being told that the department was short- handed that day, she informed them that it would have been possible for the employee who had left to have re- mained at overtime pay. When the employees said that "they won't let us" work more than 40 hours weekly, Sparkman told them that if they wanted to join the Union, "We are waiving the $20.00 initiation fee, and you don't have to pay if any of you's interested in it." The "three or four minute" conversation ended, and Sparkman thereafter took Ms. Sheets to her room. Dobler testified that the dietary director notified him of the conversation. On August 15, he issued to Spark- man an "Employee Status Report," dated August 13, reading as follows: Warning #1. Employee (Union Steward) conferred with dietary employees at 8:30 A.M. on Aug. 9th regarding cut in dietary hours and suggesting they may contact the Union on this. She also advised this group that the $20.00 initiation fee would be waived if they were to join the Union now. This contact was made during her working hours. Dietary was on break at that time. An employer may, by publication of a rule, proscribe solicitation on his premises during certain times, and the 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rule will be considered a presumptively valdid bar to such prohibited conduct. Peyton Packing Company, 49 NLRB 828, 843-844. The Board had held, however, that where no valid rule has been promulgated, the employer must establish that an employee's solicitation of union membership, even though it occurred while the solicitor or the one solicited was on duty, actually interfered with the production: "The correct view, however, is that any prohibition of solicitation, by rule or discipline, interferes with employee rights, and that such interference must- in the absence of a valid rule-be supported by an af- firmative showing of impairment of production." Daylin Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972) (Chairman Miller and Member Kennedy dissenting). There is, in this proceeding, no probative evidence of any presumptively valid rule promulgated by Respond- ent that prohibits solicitation. That is not to say that the official file itself contains no such evidence. By one of those quirks of advocacy which often retrospectively en- liven Board proceedings, there came a point late in the case at which counsel for the General Counsel, for a purpose unrelated to the present issue, attempted to in- troduce into evidence a set of rules and regulations gov- erning the performance of Respondent's employees. Counsel for Respondent objected to receipt of the exhib- it, stating that he saw "absolutely no relevance for it." After counsel for the General Counsel failed to convince me of its relevance for the purpose asserted, the exhibit was rejected. It was, nonetheless, included in the record as a reject- ed exhibit, at the request of counsel for the General Counsel. The exhibit in fact contains three rules pertain- ing to solicitation, including: "(2) No employee may so- licit on the Home property for any purpose if any party to the solicitation is on working time for the Home." Having now detected a relevant use for the exhibit, I have considered the possibility of reversing my ruling on its admissibility. There is an obstacle, however. While Dobler testified, under questioning by the General Coun- sel, that the rules were published on January 22, 1980, he never reached a point at which he said that they were in effect in August, when Sparkman engaged in the conver- sation in issue. There is, therefore, no basis for conclud- ing that the rule was in effect on that date. I might note, moreover, that the rule's use of the phrase "working time," once found acceptable in Essex International, Inc., 211 NLRB 749 (1974) (Members Fanning and Jenkins dissenting), has now been held impermissibly ambiguous, T.R. W. Bearings Division, a Division of TR. W., Inc., 257 NLRB 442 (1981). The facts must therefore be considered against the Daylin standard of whether Respondent has made "an af- firmative showing of impairment of production" flowing from Sparkman's solicitation of union membership. No such finding is warranted here. Sparkman's job was simply to attend Ms. Sheets while she had her meal. There is no evidence that, while Sparkman spoke to the dietary employees, who were on a break, she took her eyes from the patient.2 7 Indeed, the normal performance of this escort duty appears to contemplate that the staff member will be away from some of the diners from time to time. While Sparkman testified under cross-examina- tion that she "can't leave them in the dining room . . . [because] [t]hey get choked and we've had a few to fall dead right in the dining room," her description of the function-that she escorts the diners back to their rooms piecemeal "as two or three finish"-indicates that some of them will necessarily be left alone for short periods. For what it is worth, it may also be noted that the warning notice seems a surprisingly strong reaction to the circumstances. Sparkman credibly testified that she "always" converses with the dietary employees when she performs this duty, and, while there is no specific evidence that supervisors have been aware of this prac- tice, it seems rather likely that they would have been. As described by Sparkman, the portion of the conversation devoted to the invitation to join the Union appears min- iscule compared to the principal subject, i.e., the discus- sion about the possibility of working overtime; given the setting-Sparkman speaking to some off-duty employees while she engaged in the passive function of attending a single diner-the warning seems most disproportionate to the occasion. Without regard to these indications of a particular state of mind, however, I conclude that Daylin, supra, re- quires a holding that Respondent violated Section 8(a)(1) by issuing a warning notice to Lillian Sparkman on August 15. Becky Egly testified that on February 5, 1981, a posted schedule on the second floor showed that she was to work on the third floor the following day. When she came in the next morning, she went to the third floor, but when Mary McCormick arrived, she told Egly that she was in fact assigned to work on the second floor, due to a schedule change. Egly accordingly went to the second floor, but there found Linda Howdyshell, who believed that she was the only nurse who was to be as- signed to the second floor. Egly thereupon returned to the third floor; when McCormick saw her and asked why she was back, Egly stated that she "was going to come back up where I was originally assigned until Laurie Chupp or Linda Burkett arrived, to advise me differently." McCormick informed Egly that the sched- ule had been changed, and Egly looked at the schedule posted on the third floor, which reflected the change. Nonetheless, Egly began working on the third floor. When Burkett arrived, Egly had an apparently emo- tional discussion with her about being "the only LPN that was being treated like a yo-yo." After some expres- sion of views by Egly as to the deployment of personnel which would have been the most sensible, and Egly's as- sertion that she was "very upset" and could not work properly, Burkett allowed her to leave for the day. When Egly returned to work the following Monday, February 9, she was called to the nursing office, where Chupp handed her an "Employment Status Report," dated February 6, which read: z7 It is clear from the testimony of Sparkman and Dobler that the di- etary employees were in the "dining room" during this incident. 538 THE LUTHERAN HOME Becky Egly was insubordinate to Mary McCormick [illegible word] She refused instructions given to her on 2/6/81. Requested by L. Chupp, R.N. Approved by P. Dobler. Egly asked why Chupp had signed the form, since only Burkett and McCormick had played a part in the incident; Chupp replied that Burkett was out of town, and McCormick "had not been trained yet to do write- ups." There is some reason to believe that the issuance of the reprimand to Egly was inspired by an illicit motive, but not enough, I think, to make out a violation. The record does show a close identification of Egly with the Union. She accompanied Sparkman to the warning inter- view given the latter in August 1980; she refused to accept a promotion when it was first offered in Nove- moer 1980; and the record discloses an incident, some time prior to Christmas 1980, when, to Dobler's knowl- edge, Sparkman made an off-duty visit to see Egly "con- cerning some matter of the Union" (to use the words of Burkett, who discussed with Dobler the possibility of disciplining Sparkman for doing so). There is also, I think, general proof of disapprobation of the Union by Dobler-hardly of the "fire 'em all" variety, but rather a decided preference against unionization (common. I agree, to most employers). Moreover, the incident seems relatively insignificant, and there is ground for suspicion in the fact that Chupp, not Burkett or McCormick, initiated the warning. None- theless, these shreds of evidence and inference are not, in my view, sufficient. Whether or not McCormick was, in law, a supervisor, she was at least a leadperson, and likely so regarded by Egly at the time. Egly ignored McCormick's instruction to station herself on the second floor even after she saw the schedule change. This be- havior, as aggravated by Egly's subsequent chastisement of Burkett, might understandably have been viewed as "insubordination" warranting some reproof; there is no evidence that other LPNs have engaged in similar be- havior and escaped unscathed. Despite some misgiving, then, I shall recommend dis- missal of this allegation. CONCLUSIONS OF LAW 1. Respondent The Lutheran Home of Kendallville, Indiana, A Division of Lutheran Homes, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2) and (6) of the Act. 2. United Food and Commercial Workers Union, Local 10R, is a labor organization within the meaning of Section 2(5) of the Act. 3. By issuing a written warning notice to Lillian Sparkman on August 15, 1980, Respondent violated Sec- tion 8(a)(l) of the Act. 4. By establishing and putting into effect a new super- visory classification on and after November 16, 1980, Re- spondent violated Section 8(a)(3) and (1) of the Act. 5. The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time service and main- tenance employees, including all nonprofessional charge persons and all licensed practical nurses, at the Respondent's Kendallville, Indiana, location, ex- cluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. 6. By failing, on or before November 16. 1980, to bar- gain collectively with the above-named labor organiza- tion as the exclusive bargaining representative of the em- ployees of Respondent in the appropriate unit, by unilat- erally instituting a new supervisory classification, Re- spondent violated Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8. Respondent has committed no other unfair labor practices alleged in the complaint except as set out above. THE REMEDY Having found that Respondent has engaged in unfair labor practices. I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the institution of the new supervi- sory classification was violative of the Act, I shall rec- ommend that Respondent be required to abandon the classification, to rescind the promotions already granted, and to cease granting such promotions in the future. In connection therewith, of course, Respondent need no longer pay the promoted employees the premium amounts which it has been paying. The appropriate remedy for the 8(a)(5) violation found would ordinarily stop here, together with an injunction that Respondent bargain in good faith with the Union if Respondent desires to reinstitute the supervisory pro- gram. But because I have concluded that the establish- ment of the system also violated Section 8(a)(3), I shall recommend that Respondent simply be required to re- scind the new job description at this time, without refer- ence to future possibilities. This is not to say that the status quo is immutable. There may arise circumstances which would provide genuine justification for an inter- mediate supervisory classification, and Respondent would be free, in such circumstances, to adopt such a program once more, after, of course, engaging in appro- priate good-faith bargaining. While the General Counsel has asked for the remedy given above ("to reinstate these promoted employees to Licensed Practical Nurses within the bargaining unit"), he further seeks "to make those Licensed Practical Nurses who were not promoted whole, by paying them the wage increases which they did not receive on and after November 16, 1980." The requested remedy is not appropriate. None of the employees would ordinarily have received wage increases were it not for the improp- erly motivated promotions; the LPNs who did not accept promotion suffered no reasonably anticipated le- gitimate monetary loss by failing to do so. 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I shall further recommend that Respondent be ordered to reimburse the Union, with interest as provided in Flor- ida Steel Corporation, 231 NLRB 651 (1977), for loss of dues resulting from the new system. In addition, Re- spondent should be required to rescind the warning notice given to Sparkman and to expunge all evidence thereof from its personnel files. Finally, I shall also recommend posting of the tradi- tional notices. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 28 The Respondent, The Lutheran Home of Kendallville, Indiana, a Division of Lutheran Homes, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promoting employees to supervisory status for the purpose of discouraging membership in United Food and Commercial Workers Union, Local 10R, or any other labor organization. (b) Disciplining employees for engaging in activities protected by Section 7 of the Act. (c) Refusing to bargain collectively concerning rates of pay, hours of employment, and other terms and condi- tions of employment with the Union as the exclusive bar- gaining representative of the employees in the appropri- ate bargaining unit set out below: All full-time and regular part-time serviEe and main- tenance employees, including all nonprofessional charge persons and all licensed practical nurses, at Respondent's Kendallville, Indiana, location, ex- cluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. a' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Rescind the position of "Supervisor-Nursing" es- tablished in November 1980, and accord recognition to the Union as the collective-bargaining representative of the former occupants of that position. (b) Bargain collectively with the Union as the exclu- sive representative of all employees in the aforesaid ap- propriate unit with respect to rates of pay, hours of em- ployment, and other terms and conditions of employ- ment. (c) Reimburse the Union for loss of dues suffered, as set out in the section of this Decision entitled "The Remedy." (d) Rescind the written warning notice given to Lillian Sparkman on August 15, 1980, and remove from Re- spondent's files and records all evidence thereof. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount of dues to be paid under the terms of this recommended Order. (f) Post at its facility in Kendallville, Indiana, copies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's rep- resentative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORI):REDI that the allegations in the complaint be dismissed except insofar as specific findings of violations based on those allegations have been made above. 29 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 of the National Labor Relations Board." 540