Clark Manor Nursing Home Corp.

CLARK MANOR NURSING HOME CORP. Clark Manor Nursing Home Corp. and United Food & Commercial Workers International Union, Local 1445, AFL-CIO. Cases -CA-15221, 1- CA-15796, 1-CA-15955, 1-CA-16130, I-CA- 16239, 1-CA-16240, 1-CA-16547, 1-CA- 16565, 1-RC-16262, and 1-RC-16263 January 14, 1981 DECISION, ORDER, DIRECTION OF SECOND ELECTION, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JENKINS, PENELLO, AND ZIMMERMAN On August 15, 1980, Administrative Law Judge George F. McInerny issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel and the Union filed limited exceptions ac- companied by supporting briefs. 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 as modified herein. 1. The Administrative Law Judge found that Francis Fowley was discharged for just cause on May 18, 1979, and therefore concluded that he was not terminated in violation of the Act. The Union has excepted to this finding, claiming that Fowley was fired in retaliation for union activities. We find merit in this exception. The record reveals that at the time of his dis- charge Fowley had been employed in the mainte- nance department of Respondent's nursing home for 7 years. Not only was his work record unble- mished by even an oral warning before the Union began its organizing drive, but Fowley also appears to have been a favored employee. He was routinely scheduled for holiday work, for which he was paid i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enrd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings Nor do we find merit in Respondent's contention that because the Ad- ministrative Law Judge generally discredited the Employer's witnesses and credited the General Counsel's witnesses, his credibility resolutions are arbitrary or attended by prejudice. N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656 (1949). 254 NLRB No. 54 at overtime rates, and he maintained flexible hours. 2 The Union began its organizing campaign at Re- spondent's facility in late September 1978. Shortly thereafter, Fowley had a conversation with his su- pervisor, Robert Bradway, in which Bradway indi- cated that he knew Fowley had expressed hostility toward Robert Sibulkin, Respondent's president and administrator, at a union steering committee meeting. Not long afterwards, Bradway told Fowley that Sibulkin considered Fowley the top organizer in the Union's campaign and predicted that he would run for shop steward if the Union won an election. Just before Thanksgiving 1978, Bradway, who had previously assured Fowley that he would be permitted to work the holiday as usual, removed Fowley's name from the Thanks- giving Day schedule. Fowley was also denied per- mission to work on Christmas or New Year's Day. Bradway told Fowley that the schedule change had been initiated by Sibulkin, who did not deny the allegation at the unfair labor practice hearing. At about the same time, Bradway also required Fowley to begin maintaining a rigid work sched- ule. In February 1979, Bradway and Fowley had an- other conversation. Fowley had apparently been late for work that day, and Bradway told him not to give Sibulkin any opportunity to issue him a warning because Sibulkin was "after" him. The Administrative Law Judge found that the foregoing incidents constituted violations of Sec- tion 8(a)(1) of the Act except for the "top organiz- er" conversation, which the Administrative Law Judge found noncoercive under the circumstances. Fowley's relationship with Respondent during the organizing campaign also serves as background to the events of May 18, 1979,3 with which we are primarily concerned here. The Union lost the elec- tion held on May 17, 1979. On May 18, Fowley came to work late. At 8:30 that morning he had spoken to Eli Erlich, Respondent's psychiatric social worker, over the telephone and had told Erlich that he would be late. Fowley refused to identify himself, but Erlich recognized his voice. Later that morning, at or about 10:30, Erlich en- countered Fowley at the nursing home. Fowley made an obscene remark concerning Erlich's tele- phone manner, to which Erlich responded that if Fowley called again without identifying himself 2 We also note that Fowley was a friend of Respondent's housekeeping supervisor, Carl Graham, and kept Graham's house every other weekend when Graham was away. There is een an uncontradicted suggeslion in the record that the nev. wing of Respondent's nursing home was named for Fovley's mother :' All dates hereafter are in 179 unless otherwise indicated 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Erlich would hang up. Fowley replied that if Erlich did so Fowley would "take care" of him. Erlich immediately, in his words, "shared" the inci- dent with Sibulkin. He claims to have been profes- sionally concerned about Fowley's behavior al- though he did not consider Fowley the least bit dangerous. In any event, Erlich testified that Sibul- kin did not solicit Erlich's professional opinion, al- though Erlich did tell Sibulkin that Fowley was understandably upset about the outcome of the union election. Almost at once after his encounter with Erlich, Fowley was again rude, vulgar, and insulting to employees Marie Petit and Sheila Shanley in the solarium in which the employees typically took their breaks. Shanley also immediately reported the incident to Sibulkin. At noon, in the same solarium, Fowley again rudely accosted two female employees, Marie Pol- lard and Elizabeth Giguere. To Giguere he not only made remarks of a personal and sexual nature but apparently frightened her by his threatening demeanor. Both Pollard and Giguere reported Fowley's behavior to Sibulkin, and both were ap- parently quite distraught when they did so. At or about 1 p.m. Fowley left the nursing home for the day. Sibulkin made no independent investi- gation of the reports given to him of Fowley's be- havior. He asked no questions of any of the em- ployees who made the reports, nor did he speak to Fowley himself. In making the decision to dis- charge Fowley that afternoon, ostensibly based upon the reports, Sibulkin did not consider Fow- ley's previous excellent work record. The Adminis- trative Law Judge concluded that Respondent dis- charged Fowley because of his disruptive and of- fensive behavior and not for his union activities. In Wright Line. A Division of Wright Line, Inc.,4 the Board recently set forth its mode of analysis for determining whether the discharge of an em- ployee constitutes a violation of the Act. 5 We employ the Wright Line standards to evaluate the evidence here. In presenting a prima facie case of wrongful motive, the General Counsel demonstrat- ed that Fowley was from the early days of the union campaign a leading union advocate and that Respondent was not only aware of his sympathies and activities but had, before discharging him, taken such retaliatory measures against Fowley as 4251 NLRIRB 1083 (1980) s In Wright Line, the Board stated First, we shall require that the General Counsel make a prima fac. showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. (O)ce this is established, the burden will shift to the employer to demonstrate that the same action would has.e taken place even in the absence of the protected conduct denying him holiday work, insisting that he adhere to a more rigid schedule than previously, and inter- rogating him about union meetings-all of which the Administrative Law Judge found to violate the Act. It is also relevant that the discharge occurred only I day after the 1979 election. Moreover, Respondent clearly harbored animus toward both the Union and union activists. Respon- dent's antiunion campaign included, inter alia, dis- criminatory enforcement of an invalid no-solicita- tion rule, the arrest of employees who were distrib- uting union literature in Respondent's parking lot, and two other unlawful discharges of union adher- ents. The General Counsel also demonstrated that Re- spondent had never before discharged an employee under these circumstances. Sibulkin himself ad- mitted that he became involved in termination de- cisions only rarely, since hiring and firing were normally entrusted to the heads of Respondent's various departments. The General Counsel intro- duced uncontroverted evidence that during the past 5-1/2 years Respondent had discharged only 60 of 1,000 employees, and of that number only I other than Fowley who had service of over 2 years. The General Counsel also established beyond question that the language used by Respondent's supervisory and nonsupervisory employees was uniformly vulgar but was tolerated by Respondent and that written warnings were the usual form of disciplinary action taken against employees whose abuse of their mother tongue and their fellow workers went beyond even Respondent's tolerant limits. 6 The General Counsel also offered uncon- tradicted proof of several instances in which em- ployees who quarreled or even assaulted each other were not discharged. For example, Robert Shea shoved Night Supervisor Godwin and called him a vulgar name and, on another occasion, "punched out" an employee who had offended him. Shea also pushed a kitchen employee at an- other time and threatened to kill him, and, on yet another occasion, deliberately burned an employee 'i We refer to t he wairinlg issued to employee Kehoe by Sibulkin for language Sihulkin described as "abusie" Aside from the discharge of Elaine Czyzewski, which we consider i detail later in our decision, Kehoe was the only employee ever disciplined for impermissible lan- guage Ihe record is replete with examples of vulgarity that went unre- primanded Robert Shea testified that his supervisors were aware of the prevalence of obscenity among employees Shea himself had called Night Supervisor Godwin a "fuckinlg nobody" without being disciplined, and had, also without being disciplined, hit another employee for calling him an assihle." Kim Bolio credibly testified that Sheila Shanley regularly used obscrne anId antisemitic language and that employee Jhn Sokowski had called another employee a "dumb bastard" for oing against the Unionl i hese are only a fes examples of' tile sort of shop talk that Re spTnleill tllcir ted l ithiuir tt Illplitittm if anL) sort of discipline 456 CLARK MANOR NURSING HOME CORP on the arm with a cigarette. None of these inci- dents resulted in disciplinary action. Sibulkin him- self admitted that an employee had once sprayed scalding water on female employees and used foul language to such an extent that his coworkers peti- tioned Graham to take some action. The employee received a written warning but was not discharged. Linda Nishan credibly testified that two aides were once physically separated for fighting on the 11-7 shift and that the incident was reported to supervi- sory personnel but that no action was taken.7 Moreover, the General Counsel demonstrated that under most circumstances the discipline at Re- spondent's facility was progressively administered. An oral warning for the first infraction was fol- lowed by three written warnings before discharge, 8 and Respondent used printed forms for this pur- pose. Even more significant, in our opinion, the General Counsel demonstrated that Respondent normally did not discharge an employee without investigating complaints lodged against him and without interrogating the employee himself about the misconduct that served as the basis for the dis- charge. Nurse McPartland, director of Respon- dent's nursing department, testified that she consid- ered such investigation so important in termination decisions that she had once declined to discharge or even to issue a warning to two employees for fighting on the 11-7 shift because she had been unable to conduct an immediate personal investiga- tion of the reported incident. In addition, we note that in the case of Paul Girard, whose discharge the Administrative Law Judge found to violate the Act, at least a pretext of counseling and investiga- tion was made. From the foregoing we conclude that the Gener- al Counsel has made a prima facie showing that Fowley's union activity was a motivating factor in Respondent's decision to discharge him. Our con- clusion is based upon Respondent's union animus as reflected in its conduct throughout the organizing campaign, the retaliatory measures directed against Fowley because of his active prounion role in the campaign, and the timing of the discharge. Of par- ticular significance is Respondent's unexplained de- parture from its usual practice of investigating complaints before making termination decisions and of declining to discharge employees for the first in- stance of conduct abusive to nonsupervisory per- ' Nursing Director McPartland testified that, although she was aware of this incident and considered that it called for disciplinary action. she did not issue even a warning to the two employees because she was not able to conduct a personal investigation of the fight, an outcome we find significant in another context elsewhere in this decision * Respondent followed this procedure. for example, in the unlawful discharge of Paul Girard. sonnel. Moreover, the discharge here is particularly suspect in light of Fowley's excellent work record. We further conclude that Respondent has failed to demonstrate that it would have taken the same action against Fowley had he not engaged in union activities. At the outset, we note that none of the employees who complained to Sibulkin about Fow- ley's behavior were union supporters and at least two of them had actively campaigned against the Union. Eli Erlich had so closely identified himself with Respondent's management in the union cam- paign that he ordered handbilling employees off the property. Sheila Shanley, initially a member of the Union's organizing committee, had become dis- affected when the other members raised doubts about her sincerity and ejected her from a commit- tee meeting, after which she became a bitter and vocal opponent of the Union. Moreover, the record shows that Sibulkin was aware of the sym- pathies of these employees. 9 Additionally, Respon- dent has not explained why Sibulkin failed to ques- tion the grievants closely, to make an independent investigation, and to speak to the subject of the complaint, especially when it was otherwise his practice to do so. Furthermore, Respondent depart- ed from its own system of administering discipline without showing that the incidents Fowley perpe- trated created a situation so exigent that it was jus- tified in doing so. In this regard, the record shows that Respondent tolerated abusive and obscene lan- guage.1 0 In fact, the record establishes that, by all credited accounts, Sheila Shanley, one of the com- plainants, was herself an expert in foul language and overbearing behavior. Both Fowley and Bolio testified that on May 18, when Fowley insulted Shanley, she responded in kind, calling Fowley a "fucking liar." Bolio also testified that Shanley had called one of the union organizers a "Jew bastard" and that she regularly used obscene language at work. Since Shanley's linguistic habits did not pre- vent her promotion to supervisory status, we find reason to doubt that Sibulkin was genuinely con- cerned about crude conduct on nursing home premises. The record establishes further evidence of dispa- rate treatment. Respondent offered only one inci- dent in which Sibulkin discharged an employee for u During the hearing, whenever he was asked, Sibulkin candidly ad- mitted knowing the position an emploee took with regard to union rep- resenlation. He also purchased and made available "Vote No" buttons, which the record indicates were orn about the home. he record a) establishes that this union campaign as sigrously and openly debated among employees and that Sibulkin encouraged antliurmon campaigning We also observe that Sheila Shanles. the Lniorn's most vocal opponent. was promoted to a supervisory position shiortly after the election o We wuould make it clear that we do inot cndone the use of such language However, we recognize that the contexl i hich it is used must be considered 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a single instance of abusive conduct. In finding that Fowley was not discharged because of his union activities, the Administrative Law Judge consid- ered this incident determinative because both dis- charges involved misconduct of similar gravity. However, we find the discrepancies between Fow- ley's discharge and the discharge of Elaine Czy- zewski more salient than the similarities to which the Administrative Law Judge gave such control- ling significance. Czyzewski was discharged in No- vember 1978 for calling Sibulkin at his home on Thanksgiving Day and ordering him in obscene terms to come to the nursing home, where she was on duty, and issue her a paycheck. At the close of the conversation, Sibulkin called the home and spoke to Czyzewski's supervisor, who informed him that Czyzewski's behavior was threatening and that she was upsetting patients and visitors. Sibul- kin again talked to Czyzewski and attempted to reason with her and to explain that paychecks were never issued on holidays but would be given out the following day. It was only when Czyzewski re- mained intransigent and abusive that Sibulkin ter- minated her over the telephone, and then only when she rejected his suggestion that she go home for the rest of the day. In the end, Czyzewski had to be removed from the home by police persuasion. Thus, the record, which is composed entirely of Si- bulkin's own testimony, establishes not only that Sibulkin investigated the problem by talking with Czyzewski's supervisor about an incident that surely required minimal investigation, since Sibul- kin himself was a witness to the misconduct, but also that, before discharging Czyzewski, Sibulkin attempted to remedy matters short of discharge by reasoning with the employee and then by suggest- ing that she leave work for the day. Sibulkin took no such measures before discharging Fowley, and we are constrained to conclude that the manner in which Czyzewski was discharged weakens rather than strengthens Respondent's defense. Accordingly, for the reasons given above, we find that Respondent discharged Francis Fowley in violation of Section 8(a)(3) and (1) of the Act, and we shall order that he be reinstated to his former position or, if that position no longer exists, to a substantially equivalent position at Respondent's nursing home and that he be made whole, with in- terest, for any loss of earnings he may have suf- fered as a result of the discrimination against him. 2. The Administrative Law Judge found that Re- spondent imposed a pretextual condition upon Robert Shea's continued employment as a part-time dishwasher by requiring him to secure a note from his doctor for absence from work during the week of May 13, 1979. He concluded that Respondent violated Section 8(a)(3) and (1) of the Act by ter- minating Shea's employment in retaliation for his activities on behalf of the Union and ordered Shea's immediate reinstatement with backpay. We uphold the Administrative Law Judge's conclusion and adopt his recommended Order in this respect, but we are of the opinion that the recommended remedy falls short of the relief to which Shea is en- titled. The General Counsel has excepted to the Ad- ministrative Law Judge's failure to conclude that Respondent unlawfully reduced Shea's hours prior to his discharge and to provide a backpay remedy for this additional violation of Section 8(a)(3) and (1). We find merit in the General Counsel's excep- tions. As the Administrative Law Judge observed in his Decision, the record is somewhat unclear with respect to the events centering around Respon- dent's reduction of Shea's hours and his eventual discharge. The evidence does establish, however, that Shea was regularly scheduled to work week- ends and was often called in for additional work during the week if other help was not available. The record also establishes that on or about May 18, 1979, Shea noticed that he had been removed from the schedule for May 19, 20, and 23 and was told by his supervisor, Carl Graham, that Sibulkin was responsible for the erasure. Respondent's animus toward the Union and its adherents is amply documented, and its specific animus toward Robert Shea is demonstrated not only by his un- lawful discharge but also by Graham's remark to Shea and another kitchen employee, Rene Lymon, on May 16 that they would "learn the hard way," which the Administrative Law Judge found to be a violation of Section 8(a)(1) of the Act. We there- fore conclude that the General Counsel established a prima facie case of unlawful discrimination in the reduction of Shea's hours. Moreover, Respondent advanced no credible jus- tification for removing Shea's name from the kitch- en work schedule for the week of May 19. In fact, from Graham's confusing testimony it is difficult to be certain that any justification whatsoever was given. We are therefore prepared to conclude that Respondent removed Shea's name from the sched- ule for May 19 and 20 in retaliation for his union activities and thereby violated Section 8(a)(3) and (1) of the Act. We shall order a backpay remedy for those days. Because the record does not clearly establish that Shea was regularly scheduled during the week, however, or that he had arranged with Graham to work on Wednesday, May 23, before noticing that his name had been erased for that 458 CLARK MANOR NURSING HOME CORP. day, we shall not include May 23 in the backpay award. 3. The General Counsel also excepts to the Ad- ministrative Law Judge's refusal to order that Re- spondent reimburse Linda Nishan and Karen Baker for legal expenses that they may have incurred in defense of the trespass complaint brought against them by Respondent in the Worcester district court. We find merit in the exception. It is our practice to order reimbursement of legal expenses arising from charges brought against an employee by an employer unlawfully motivated under the Act,'L and the issue whether such expenses were in fact incurred and paid by the employees them- selves or by the Union is irrelevant to an unfair labor practice proceeding. We shall therefore order the relief requested by the General Counsel' 2 and leave resolution of related questions to the compli- ance stage of this proceeding. 4. We also agree with the General Counsel that a broad order is warranted in this case, particularly since we have here found additional violations of Section 8(a) (3) and (1). Respondent's unfair labor practices include, inter alia, discriminatory enforce- ment of an overly broad no-solicitation rule, the threat to arrest and the actual arrest of employees distributing union literature on Respondent's prop- erty, various retaliatory actions against union ad- herents with regard to their schedules and employ- ment status, and three discharges from an employee complement of approximately 150. We also note that Respondent concentrated its unlawful activity upon those groups of employees which it believed to represent union strongholds, that is, on the main- tenance and housekeeping and on the kitchen de- partments, and on the nurses aides who worked the 11-7 shift. While Respondent's unfair labor prac- tices perhaps cannot be characterized as wide- spread, they were certainly numerous, varied, and egregious, and, we conclude, demonstrated a delib- erate disregard for the Section 7 rights of the em- ployees of the nursing home.' 3 5. Finally, while we conclude that the Adminis- trative Law Judge properly recommended over- turning the election in Case -RC-16262, we wish to correct his statement of the law concerning the propriety of considering conduct not specifically alleged in objections to the election in determining whether the election should be set aside. The Ad- ministrative Law Judge noted that, of four inci- i' See, e.g. Baptist Memorial Hospital, 229 NLRB 45 (1977). 12 We construe an award of legal expenses to Nishan and Baker to in- clude any further expenses that may arise in the proceeding to expunge their records in the state court. The Administrative Law Judge inadver- tently omitted the expunction order from his notice, and in issuing a new notice we shall correct the error. I3 See Hickmort Foiods. Inc.. 242 NLRB 157 (1979) dents occurring during the critical period before the election, only two were specifically alleged as objections. Finding that these two incidents were violations of Section 8(a)(1), the Administrative Law Judge determined that they constituted objec- tionable conduct sufficient to set aside the elec- tion.' 4 However, the Administrative Law Judge refused to consider as objectionable conduct one other incident of misconduct,' 5 which he found to be a violation of Section 8(a)(1) but which was not specifically alleged as an objection. Our decisions establish that any improper con- duct discovered during the course of an investiga- tion of objections to an election, whether or not specifically alleged, may, if sufficiently objection- able, constitute grounds for invalidating an elec- tion.' 6 Where, as here, an administrative law judge, after full litigation, finds that a respondent committed an unfair labor practice during the criti- cal period before the election, that misconduct is to be considered as a basis for overturning the elec- tion even if not alleged in the written objections to election filed in the representation case. 7 We therefore find that the incident that occurred on May 16, 1979, in which Supervisor Graham in- formed Rene Lymon and Robert Shea that they would "learn the hard way" in the union election was not only a violation of Section 8(a)(l) of the Act but was also objectionable conduct that further supports the Administrative Law Judge's recom- mendation that we order a second election. For the reasons discussed above, we conclude that, in addition to those violations found by the Administrative Law Judge, Respondent committed a violation of Section 8(a)(3) and (1) of the Act by discharging Francis Fowley for engaging in pro- tected concerted activity and by reducing the work hours of Robert Shea for participating in the Union's organizational efforts. We have also con- cluded that Karen Baker and Linda Nishan are en- titled to legal expenses they may have incurred in the defense of trespass charges instituted against them by Respondent and for any expense involved in the expunction of those charges from their re- cords in state court. Finally, we conclude that the 1' Dal-Tex Optical Company. Inc., 137 NLRB 1782. 1786 (1962) ' The other incident occurring during the critical period hut not spc- cifically alleged as an objection was, we presume, Sibulkin's connersatoln with Kim Bolio. which the Administrative Law Judge found not to he a violation of Sec. 8(a)(1). "I Dayton Tire & Rubber Co., 234 NLRB 504 (1978) See. eg. Boiler Tub, Company ofAmerica, 238 NLRB 1641 (1978). 7 As stated in Dal-Ter Optical Company, Inc.. supra at 1786 "Conduct violative of Section 8(a)(l) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election " Member Penello, while he agrees that a new election is warranted here, adheres to the position expressed in his dissent in Dayton fire & Rubber Co.. supra. and would not consider conduct not specifically al- leged in written objections as grounds for setting aside the election 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record in this case supports the issuance of a broad cease-and-desist order. We shall modify the Admin- istrative Law Judge's recommended Order accord- ingly and shall order that the election in Case 1- RC--16262 be set aside and a new election conduct- ed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Clark Manor Nursing Home Corp., Worcester, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to call the police, calling the police, or causing employees to be arrested because they engaged in union activities. (b) Promulgating and enforcing unlawful rules prohibiting solicitation in nonwork areas on non- working time and rules prohibiting employees' access to Respondent's premises. (c) Interrogating its employees concerning their union activities. (d) Giving employees the impression that their union activities are under surveillance. (e) Threatening its employees with retaliation for engaging in union activities. (f) Issuing warnings to employees because they have engaged in union activities. (g) Changing or reducing the status of employ- ees, or their hours or shift schedules, because they have engaged in union activities. (h) Depriving employees of holiday work be- cause they have engaged in union activities. (i) Discharging employees or setting unlawful conditions upon their return to work. (j) In any other manner interfering with, restrain- ing, or coercing its employees in the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Remove from the files of Karen Baker, Linda Nishan, Ann Stinchfield, and Paul Girard all warn- ing notices, and all references to such notices issued to them in the period from November 15, 1978, to August 27, 1979. (b) Remove from the file of Linda Nishan the personnel change form noting that she is a "union organizer" and recommending that she not be reemployed, together with all references to that form in Respondent's files. (c) Rescind the change of status form issued to Karen Baker on January 18, 1979, and restore her to full-time status, and grant her any benefits she may have lost as the result of this action. (d) Revise its personnel policies and posted rules to eliminate unlawful restrictions on solicitation and access to its premises. (e) Restore Karen Baker and Ruth Burke to the schedule under which they were working prior to April 1, 1979. (f) Pay to Robert Shea any money due him be- cause of its refusal to schedule him for work on May 19 and 20, 1979, together with interest there- on. (g) Pay to Karen Baker and Linda Nishan any expenses they incurred in defense of charges result- ing from Respondent's complaint against them in the district court for Worcester County. (h) Pay to Francis Fowley any money due him because of its refusal to allow him to work over- time on Thanksgiving and Christmas 1978, and New Year's Day, 1979, together with interest thereon. (i) Offer Paul Girard, Robert Shea, and Francis Fowley immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed by them, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, together with interest thereon, computed in the manner set forth in that section of the Adminis- trative Law Judge's Decision entitled "The Remedy." (j) Petition the police department of the city of Worcester, and the appropriate district court for Worcester County, requesting that any proceedings involving Respondent's complaint against Karen Baker and Linda Nishan be expunged from their records, and pay any expenses involved in the ex- punction proceedings. (k) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (1) Post at its place of business in Worcester, Massachusetts, copies of the attached notice marked "Appendix."' 8 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by Re- " iln 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." 460 CLARK MANOR NURSING HOME CORP. spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (m) Notify the Regional Director for Region , in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election held on March 17, 1979, in Case -RC-16262 be, and it hereby is, set aside and that said case is hereby re- manded to the Regional Director for Region I for purposes of conducting a second election, as direct- ed below. IT IS FURTHlER ORI)ERII) that the challenges to the ballots cast by Rita McMenemy and Ann San- soucy in the election conducted on March 17, 1979, in Case -RC-16263 he, and they hereby are. sustained. [Direction of Second Election and Excelsior foot- note omitted from publication.] CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for United Food & Commer- cial Workers International Union, Local 1445, AFL-CIO, in Case -RC-16263, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of em- ployment: All technical employees including licensed practical nurses, physical therapist assistant, and activity director, but excluding all other employees, registered nurses, business office clericals, professional employees, guards and supervisors as defined in the Act. 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. WE WILL NOT threaten to call the police, nor call the police, nor cause our employees to be arrested, for their union activities. WE WILL NOT promulgate or enforce unlaw- ful rules prohibiting either solicitation in non- work areas on nonworking time or employee access to our premises. WE WILL NOT interrogate our employees or give them the impression that their union ac- tivities are under surveillance. WE WILL NOT threaten our employees with retaliation for engaging in union activities. WE WILL NOT issue warnings to employees for engaging in union activities. WE WILL NOT change or reduce the status of employees, their hours or their shift sched- ules, because of their union activities. WE WILL NOT deprive employees of holiday work because they have engaged in union ac- tivities. Wl- WIl NOT discharge employees, or set unlawful conditions upon their return to work. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under the National Labor Relations Act, as amended. WE WII.l remove warning notices from the files of Karen Baker, Linda Nishan, Ann Stinchfield, and Paul Girad, and a personnel change form from the file of Linda Nishan. WE Wll.l. remove the change of status form from the file of Karen Baker, restore her to full-time status, and grant her any benefits which she may have lost as a result of our action against her. WE Wll.l restore Karen Baker and Ruth Burke to the schedules under which they were working prior to April 1, 1979. WE WILL pay the legal expenses incurred by Karen Baker and Linda Nishan in defending the charges we brought against them, and WEi WIL petition the police department and the district court for Worcester County to ex- eunge their records relating to that charge and pay any expenses involved in the expunction procedure. WE WILL pay to Robert Shea any money due him because of our refusal to schedule him for work on May 19 and 20, 1979. with inter- est. WE WlIl. pay to Francis Fowley any money due him because of our refusal to allow him to work overtime on Thanksgiving and Christ- mas, 1978, and on New Year's Day, 1979, with interest. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Paul Girard, Robert Shea, and Francis Fowley immediate and full rein- statement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without loss of seniority or other rights or privileges previously en- joyed, and WE WILL make them whole for any losses they may have suffered on account of our discrimination against them, with interest. WE WILL rescind our no-solicitation and no- loitering rules to the extent that they prohibit our employees during their nonworking time from soliciting in our facility with regard to matters protected by the National Labor Rela- tions Act or from having access to our prem- ises in order to engage in protected activity in the nonwork areas of our nursing home. CLARK MANOR NURSING HOME CORP. DECISION AND REPORT ON CHALLENGES AND OBJECTIONS GEORGE F. MCINERNY, Adminstrative Law Judge: On November 17, 1978, the charge in Case -CA-15221 was filed by Local 1445, Retail Clerks International Union, AFL-ClO,' alleging that Clark Manor Nursing Home, herein referred to as the Home or Respondent, had vio- lated the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein referred to as the Act. This charge was amended by the Union on December 11, 1978, and thereafter on December 27, 1978, the Acting Regional Director for Region I of the National Labor Relations Board, herein referred to as the Board, issued a complaint alleging that Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. On January 4, 1979, Respondent filed an answer denying the commission of any unfair labor practices. Further charges were filed in Case 1-CA-15796 on March 19, 1979, and on May 3, 1979, the Regional Di- rector for Region 1 issued an order consolidating Cases l-CA-15221 and 1-CA-15796 and an amended com- plaint designating additional actions of Respondent as unfair labor practices. On May 11, 1979, Respondent filed an answer denying these allegations. The charge in Case -CA-15955 had been filed on April 18, 1979, and amended on May 7, 1979. These, in turn, led to an order by the said Regional Director, on May 17, 1979, consolidating Case -CA-15955 with Cases I-CA-15221 and -CA-15796 and the issuance of a second amended complaint adding allegations of unfair labor practices arising from Case -CA-15955 to those in the prior complaints. Respondent duly filed an answer to this second amended complaint, continuing to deny the commission of any unfair labor practices. I In June 1979, tilhe name of this organization was changed to the United Food and Commercial Workers Union, Local 1445, AFL CIO. and it is referred to herein as the Union. On May 25, 1979, the charge in Case -CA-16130 was filed by the Union. This charge was amended on June 26, 1979, and on July 3, 1979, the said Regional Director issued an order consolidating Case I-CA-16130 with Cases 1-CA-15221, 1-CA-15796, and I-CA-15955, to- gether with a third amended complaint containing new allegations deriving from Case 1-CA-16130. On July 12, 1979, Respondent filed an answer to this complaint. On June 19, 1979, the charges in Cases -CA-16239 and 1-CA-16240 were filed by the Union. On August 1, 1979, the said Regional Director issued an order consoli- dating Cases 1-CA-16239 and 1-CA-16240 with Cases I-CA-15221, I-CA-15796, 1-CA-15995, and I-CA- 16130, and a fourth amended complaint adding further violations of Section 8(a)(1) of the Act. 2 Respondent filed an answer to this fourth amended complaint on August 9, 1979, continuing to deny the commission of any unfair labor practices. In the meantime, the Union had, on March 26, 1979, filed petitions for certifications of representative in Cases l-RC-16262 and 1-RC-16263 for two separate units of the Employer's employees. Case -RC-16262 concerned employees in the dietary and maintenance departments, nurses aides, other aides, clerks, and orderlies. The peti- tion in Case 1-RC-16263 was for a technical unit, includ- ing licensed practical nurses. On April 18, 1979, the Union and the Employer entered into Stipulations for Certification Upon Consent Election, setting out the units in each case agreed to by the parties to be appro- priate. Pursuant to the agreement reached in these stipu- lations, elections were conducted by Region I on May 17, 1979. The results of the election in Case -RC-16262 show that, of 98 valid votes counted, 35 voted for the Union, 63 voted against it, and 9 ballots were challenged. In Case -RC-16263 there were 13 valid votes, of which 6 were in favor of the Union, 5 against, and 2 challenged. In the latter case, the challenges were determinative of the results. However, on May 22, 1979, the Union filed objections to the elections in both cases. The objections as well as the challenged ballots in Case -RC-16263 were investi- gated and considered by the Acting Regional Director for Region 1, resulting in the issuance of a Report on Objections and Challenged Ballots dated June 28, 1979, in which he noted that two of the objections had been withdrawn, with his approval; he overruled three other objections; and he found no evidence to support a fourth. He noted that the content of two of the objections was identical to the content of certain allegations in the second amended complaint issued in Cases -CA-15221, I-CA-15796, and 1-CA-15955. The Acting Regional Di- rector therefore recommended that these objections should be resolved at a hearing before an administrative law judge along with the issues in the second amended complaint. Further, he recommended that the two chal- lenged ballots likewise be resolved at a hearing before an administrative law judge. 2 It is noted that neither f the specific allegations containcd in the charges i Cases I-CA-16239 and I CA 16240 is reflected in the allega- lions of the fourth amended complaint 462 CLARK MANOR NURSING HOME CORP. No exceptions were filed to the Acting Regional Di- rector's Report on Objections and Challenged Ballots and the above recommendations were adopted by the Board in an order directing hearing dated August 22, 1979. In accordance with this order, the said Acting Re- gional Director issued an order consolidating Cases 1- RC-16262 and 1-RC-16263 with the cases heretofore consolidated in the fourth amended complaint, Cases I CA-15221, -CA-15796, 1-CA-15955, -CA-16130, I- CA-16239, and -CA-16240. The hearing opened before me on September 24, 1979, at Worcester, Massachusetts. After the opening of the hearing I granted the General Counsel's motion to add certain allegations to the complaint and to consolidate Case -CA-16547:1 with the other cases consolidated herein. At this point a recess was granted and the hear- ing resumed in Worcester on October 9, 1979. On re- opening I granted a further motion by the General Counsel to amend the complaint and to consolidate Case l-CA-16565 with the others.4 The hearing then continued on October 9-11 and No- vember 13-15 at which times all parties had the opportu- nity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally. After the conclusion of the hearing all parties submitted briefs, which have been carefully considered. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following: FINDING;S OF FACT 1. ltHEi BUSINESS 01 RESPONDENT Clark Manor Nursing Home Corp. is a Massachusetts corporation which maintains its principal office and place of business at 1350 Main Street in the city and county of Worcester where it is engaged in the business of operat- ing a proprietary nursing home. Respondent has gross annual revenues in excess of $100,000 and annually re- ceives goods valued at over $50,000 directly from points outside the Commonwealth of Massachusetts. The com- plaints allege, the answers admit, and I find that Respon- dent, a health care institution within the meaning of Sec- tion 2(14) of the Act, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaints allege, the answers admit, and I find that United Food & Commercial Workers International Union, Local 1445, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Itl. THE ALLEGED UNFAIR I ABOR PRACTICES A. Background and Union Organization Clark Manor Nursing Home is a long term geriatric care center located on Main Street in a residential area of Worcester, Massachusetts. The physical plant consists of a 66-bed facility built in 1961, with a 36-bed addition 3 The charge in Case I-CA 16547 had bhcen filed on September 6. 1979, and Ilnellded on September 7, 1979 ' The charge in Case I CA 10565 as filed on September 14. 1979 constructed in 1964, and a four-story, 60-bed unit added in 1970, together with support areas, storage rooms, kitchens, offices, and, on each floor of each wing, solar- iums used both by patients and staff for recreational pur- poses., At the times material to this case the Home em- ployed about 155 employees in 3 shifts on a 24-hour, 7- day basis. The Home is administered by Robert Sibulkin. whose titles are president and assistant administrator. Under Si- bulkin are several departments: the nursing department under Director of Nursing Frances McPartland, RN; the dietary department under Carl Graham; and the mainte- nance department which up to May 18, 1979, was super- vised by Robert Bradway, and, after that date, by Robert Lucier and Sheila Shanley. Other lower level supervisors will be discussed as their participation in events becomes relevant. Late in September 1978, Richard T. Courtney, an In- ternational representative for the Union's professional and health care division, began handbilling on behalf of the Union at the Home. Sometime after that, on Septem- ber 27 or 28, he heard from Karen Baker, a nurses aide on the I1 p.m. to 7 a.m. shift. They met and Courtney gave Baker a number of union authorization cards to dis- tribute among her fellow employees. After that Courtney had another meeting with Baker and Linda Nishan, a li- censed practical nurse (LPN) on the I I p.m. to 7 a.m. shift, and then, as interest in the Union quickened among the employees, he had a meeting with Baker, Nishan, an- other LPN, Marie Pollard, Francis Fowley from mainte- nance, and Sheila Shanley, an employee in the Home's laundry. From this group a larger number of employees was formed with the title of Clark Manor Nursing Home organizing committee. The committee included Baker, Nishan, Fowley, and Shanley, together with Ruth Burke, a nurses aide who worked with Baker. Paul Girard from maintenance, Rene Lyman and Robert Shea from the kitchen, Anne Stinchfield. a nurses aide from the 7 a.m. to 3 p.m. shift, and others who do not figure in this case. The above-named employees participated i meetings, passed out and collected authorization cards, distributed literature, and generally exhibited prounion attitudes around the Home. B. The No-Solicitation Rules At the time of the initial union organization efforts, Respondent maintained, and had since 1972 or 1973, rules against solicitation and loitering on the premises by off-duty employees. These rules provided as follows: SOLICITATION: No solicitation of any type will be allowed on the premises. Example: sale of food items, cosmetics, etc. This applies to employees as well as the outside public. LOITERING: Upon completion of your day's work it is requested that you leave the home prem- 5 Much was made h all the parties of the fact that the Home is built on a higher lesel than the street and that there is an embankment on the Mailn Street side ushlch aries in height The fact f the embankment, or its relative height at different points, is, hos.ecr, u nconnected to any of the ssues in the case 463 DFCISIONS OF NATIONAL LABOR RELATIONS HBOARD ises immediately so there will be no delay in the continuance of work schedules. Off duty employees are not to visit other employees while they are working on the premises. Infractions of these rules were punishable by written warnings, three of which would lead to the employee's discharge. These rules were contained in Respondent's personnel policies, which were distributed to all new employees. The employees, in turn, were required to acknowledge receipt of these policies to affirm that they had read them, and to agree "to abide by them as written." The no-solicitation rule appears on its face to be pre- sumptively invalid; Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945). Even in the case of health care institutions, where the application of the law to rules of this type is somewhat less restrictive than in an industrial or commercial setting, a broad prohibition of this type, the Board has held that application of such rules to areas beyond patient care areas is not justified; St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976). There was considerable evidence from employee wit- nesses that the no-solicitation rule was, at least in areas not devoted to patient care, observed mainly in the breach. This evidence, which I credit, shows that solici- tation for Avon products, raffle tickets, furniture, an- tiques, and other sundry items went on unabated and un- deterred by lower level supervisory personnel. On the other hand, the director of nursing, Frances McPartland, and the assistant administrator. Robert Sibulkin, testified that they enforced the rule on all occasions except for certain patient-oriented activities such as a sale of af- ghans made by patients, and fashion shows oriented toward patients. As noted below, I did not find either McPartland or Sibulkin to be a particularly reliable wit- ness. However, it seems clear to me that the no-solicita- tion rule was observed by the employees in patient care areas, but was not in other parts of the Home at least until the coming of the Union. In this regard I specifical- ly do not credit McPartland's uncorroborated assertions that she went around picking up Avon catalogs, and firmly dissuaded named employees, who did not testify, from bringing in other items for sale. Thus I find that Respondent's no-solicitation rule, as it ostensibly extends to nonpatient care portions of the in- stitution, is invalid. In making this finding I am aware of the decisions in Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978), and Baylor University Medical Center v. V.L.R.B., 593 F.2d 1290 (D.C. Cir. 1979), where the courts were confronted with the application of no-solicitation rules to areas open to employees, the public, and patients, and where these three groups mixed in varying percentages at different times of the day. There really is no comparable question in this case. The only portions of Respondent's premises, as shown by the record, where patients and staff were described as mixing were the solariums which were used as recreational facilities by patients and for breaks and lunch by employees. However, there is no evidence that the no-solicitation rule was ever enforced in these areas. The rule against loitering in Respondent's personnel policies is analogous to the rule found invalid in Tri- County Medical Center, Inc., 222 NLRB 1089 (1976).6 The Board in 7ri-County held that a rule restricting em- ployee access to areas outside the working premises, but on the employer's property, was invalid except where justified by business reasons. Here, Respondent has introduced evidence which pur- ports to raise such business justification in the context of a health care institution. Director of Nursing McPartland testified that in her opinion the presence of people stand- ing in the parking lot would tend to disturb and upset the Home's elderly or senile patients. She was able to cite only one instance, and that occurred after the police, who had been summoned by Respondent to deal with employees who were handing out leaflets in the parking lot, had arrived. Robert Sibulkin testified that the rule against employees remaining on the premises outside of the Home, particularly in the parking lot, was justified because of parking problems and reported damage to or vandalism of employees' cars parked in the lot: the theft of two vehicles from the lot, one in 1975 and one in 1978; and the need for security outside the Home to pre- vent breaches of security within. He pointed out in this regard the fact that the Home maintained large amounts of narcotics and other drugs, and the fact that there had been thefts of handbags and other items belonging to those inside the Home, as well as two substantial thefts of supplies from the Home. Sibulkin attributed these last two incidents to insiders since there was no forcible entry of the premises. There was no evidence that this rule against "loiter- ing" was ever enforced prior to the union organization campaign. A number of employees testified that off-duty employees returned to the Home frequently, sometimes to pick up paychecks which were distributed on Thurs- days, and sometimes just socially. These employees testi- fied that the off-duty employees would sit around and visit with on-duty employees, or even with patients, without reprimand by management. There was further evidence that employees frequently arrived early for work and remained either outside or inside the Home until they were to begin their shifts. I also note an inci- dent which occurred toward the end of August, more than 3 months after the union election, when Sibulkin en- countered Paul Girard at the emergency entrance to the Home talking to three nonemployee friends. At no time did Sibulkin request these strangers to leave the prem- ises. In the circumstances I cannot find that Respondent has adequately shown that these reasons serve as valid business justifications for the rule against "loitering." There was no evidence, other than bare assertions, that employees' or other cars were damaged, vandalized, or stolen. There was no evidence that the presence of pe- destrians in the parking lot would exacerbate any parking problems there. Certainly, if Respondent were really concerned about security Sibulkin would have been more concerned about the young strangers talking to Girard at the rear entrance to the Home, than about " tilnguikhing GI_' Le.nkurt Incorporated. 204 NLRH 921 (1973) 464 CLARK MANOR NURSING HOME CORP. nurses aides passing out literature in the parking lot in front of the building. With respect to the security prob- lems, particularly the thefts from the Home, there is no evidence that employees were responsible, or that en- forcement of a no-access rule would have any significant effect on such activities, or that an increase of security inside the building would not deter further thefts. Thus I find that by maintaining and enforcing rules prohibiting solicitation in nonworking areas and during off-duty time, and by prohibiting off-duty employees from outside, nonworking areas of its premises, Respon- dent has violated Section 8(a)(1) of the Act.7 The Presby- terian Medical Center, 227 NLRB 904 (1977). On November 21, 1978, apparently sensing some prob- lem with respect to its no-solicitation policy, Respondent posted a notice to employees reading as follows: In order to avoid any questions-there will be no union solicitation or distribution at anytime in pa- tient care or patient access areas. Solicitation and distribution will be permitted during non-working time in other areas of the home such as employees lounges, dining areas, coffee rooms so long as there is no disruption to the health care operation or disturbing of patients. Our rule with respect to leaving the premises upon completion of your day's work is based upon sound business reason and has been promulgated as much as for your protection as ours. Consequently, it will be enforced. What Respondent did here, in an ostensible attempt to clarify the existing no-solicitation rule, was, in effect, to replace that rule, which prohibited all solicitation at all times and in all areas of the Home, with one prohibiting only union solicitation and distribution but in working areas and on working time. Considering this rule in the light of the Supreme Court's construction of the rule in Republic Aviation, supra, by its decision in Beth Israel, supra,8 it would appear that, on its face, the rule is valid.9 However its promulgation, at the very onset of the Union's organiza- tional drive, the circumstances of its enforcement solely against known union supporters, and the encouragement by Respondent of antiunion activities by employees in disregard of the rule show that the rule was intended not to protect patients from unwanted and disturbing solici- tation activity. I 1 am aware that the complaint alleges only that these rules ere maintained and enforced on and after November 21, 1978 However the rules as contained in Respondent's personnel policies were introduiced in evidence, and this matter has been completely and thoroughly litigated Thus no prejudice or violation of due process occurs in this finding. R The rule in Bath Israel, as here, was limited only to union solicitation 9 There is no evidence that this rule was applied to restrict solicitation in the solariums where. it is clear, patients and off-duty emplhyees nun- gled, took coffee, and ate lunch In the absence of such evidence I infer and filnd that the rule did not apply to those places, even though thes were not specifically designated in the rule Further. I do not believe iat the issue of access or the aailaililit of other means for the nlion tI reach the employees is particularly imnlportant here in the light of this finding In spite of the Court's decision in Beth Israel, the im- position of a new, or clarified no-solicitation rule, appli- cable only to union solicitation, at the onset of a union organization campaign must raise questions about the motivation for the statement or restatement of the rule. In contrast to the facts in Beth Israel, this case presents an abundance of evidence showing hostility by Respon- dent's officials toward the Union, and a series of illegal actions against union adherents. Both Sibulkin and McPartland made no secret of their opposition to the Union. They are entitled under the Act to look with disfavor upon the Union. But what they, and through them Respondent, may not do is turn legiti- mate views and expressions into unlawful actions against employees. The several examples of such actions, dis- cussed in detail below, demonstrate that the purpose of the no-solicitation rule was to curtail the exercise of or- ganizational rights by employees. To illustrate this fur- ther I note the disparity between Sibulkin's two warnings to Ann Stinchfield purportedly for violations of this rule,' ° and Sibulkin's encouragement of employee Kim Bolio's antiunion activities with no suggestion, in the latter case, that those activities be confined to nonwork areas. " Adding to these factors the findings I have al- ready made, based on the voluminous evidence that the prior no-solicitation rule was not enforced, at least at the working levels of the Home, I am constrained to find that this portion of the November 21 notice was likewise invalid and a violation of Section 8(a)(l) of the Act. Turning to the second part of the November 21 notice, there was no change in this prohibition against access for off-duty employees from that contained in the personnel policies discussed above. What I held to be unlawful there continues unlawful in its restatement here, Presbyte- rian Medical Center, supra, and a violation of Section 8(a)(1). C. Alleged Violations of Section 8(a)(1) 1. On November 15, 1978, employees Karen Baker, Linda Nishan, and Ruth Burke were in the parking lot of the Home at or about 3 p.m. passing out handbills to em- ployees. Robert Bradway, the supervisor of maintenance, came out of the Home and asked them to leave the prop- erty and they refused. The parties stipulated, and the evi- dence shows, that Frances McPartland then called the Worcester police. The police responded but took no action. The police report submitted in evidence succinct- ly and pragmatically describes the matter as a "labor dis- pute." Bradway had left the Home on May 18, 1979, and was not called as a witness. Following my conclusions with respect to Respon- dent's rule against "loitering" given above, I find that the employees here were involved in protected concerted ac- tivity on behalf of the Union, and that Respondent by "' Slinchfield as ain l ii;r it ' tillOn supporter 'ssho ss a idenlific(l )II unnriln literature as a member o1 ti org;rllllzirlg Ctiilllttt Site slltiid that she received two oral wartirngs rmn Sihulkin fir ,ttl osl,, I lhl rule Sihulkin did not den) this I HIolio sas a physical therapist ssIhos du itlk her t .iAll prts it rhe Iotlic , and iito contalt l . ll 1t l ail l i i a iIs -'hlft cmploscCs Slhtil kin hitselif stated Ithat h Id thd t t h r iI sh snacrc opposed t, Oh I il11ii, "s it, mhe o s peak tr hter peers ibuuil Tiit" 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) calling the police, to have them removed from the park- ing lot, interfered with, restrained, and coerced these em- ployees in violation of Section 8(a)(1) of the Act.' 2 2. Again on November 20, Baker alone was handbill- ing in the parking lot. The complaint alleges that Sibul- kin threatened her by saying that he was going to call the police. The evidence does not show that Sibulkin did this, but the parties did stipulate that on that day "at 3:16 p.m. the police were summoned by Clark Manor Nursing Home because there were persons on the property-a person on the property who refused to leave; and the police were in fact called." I find this, for the reasons outlined above, to be a violation of Section 8(a)(l) of the Act. 3. On November 29, 1978, the parties stipulated that "Linda Nishan and Karen Baker were arrested for tres- passing after, in the presence of the police officer, Mr. Robert Sibulkin asked them to leave the property at 1350 Main Street. These two people were arrested for tres- passing." "On or about January 18, 1979, all the charges were dismissed by the District Court." This further enforce- ment of an invalid rule, involving as it does the actual arrest of two employees who were engaged in activities protected by the Act, is a further violation of Section 8(a)(1) of the Act. 4. Francis Fowley, a maintenance employee, testified concerning three conversations with her supervisor, Robert Bradway. The first two occurred on the same or on consecutive days in mid-October 1978. The first con- versation took place on the day after the first union com- mittee meeting, which Fowley had attended. He had not told Bradway that he was going to the meeting, but on that next day Bradway approached him and asked how the union meeting went. Fowley just shrugged, and Bradway went on to say that he had had a conversation with Sibulkin in which Sibulkin had told Bradway that he, Sibulkin, had heard that Fowley had used an expres- sion indicating a desire to physically assault Sibulkin.' 3 Later that same day, or on the next day, Bradway again approached Fowley and told him that Sibulkin thought Fowley was one of the union organizers and that, if the Union got in, Fowley would run for steward. I had some difficulty with Fowley's credibility, as will be discussed in more detail below, but with respect to this incident I found his testimony candid and believable. Bradway, of course, did not testify. I thus credit Fow- ley's versions of these conversations. In the first conver- sation it is clear that Bradway was informing Fowley not only that Respondent was aware of the fact of the union meeting but that Respondent was also aware of what went on and what was said there. This clearly created the impression of surveillance and constitutes a further violation of Section 8(a)(l). With regard to the second conversation, Fowley did not state whether the remark by Bradway reflected any- 12 There was no evidence that Bradway, McPartland, or Sibulkil de- manded that the employees leave the parking lot or forbade them to pass out union literature I therefore recommend that par 8(a) of (ihe coil- plaint be dismissed. "a Fowley had in fact said something like that at the union meeting on the previous night. thing which had gone on at a union meeting. Further, Bradway's remark does not, as described by Fowley, appear to be a question requiring an answer, and there does not appear to be any threat, either expressed or im- plied in this remark. Fowley certainly made no secret of his participation in the organizing committee, or in other union activities. In this context I cannot find that this statement violated the Act. The third conversation between Bradway and Fowley took place in February 1979. Fowley apparently had been late for work a few days before, and there had been some question about whether he had called in to report this. The matter was straightened out, but a few days later Bradway approached Fowley and told him, that whatever he did, not to give Sibulkin a chance to give him a warning because Sibulkin was out to get him. I find that this warning was prompted by Fowley's union activity, and not related to his job performance. Fowley had never received any warnings or other discipline in 7 years of employment at the Home. Thus I find that this warning was a threat of reprisal for Fowley's union ac- tivities in violation of Section 8(a)(l) of the Act. 5. Ann Stinchfield, a nurses aide employed on the day shift from 7 a.m. to 3 p.m., testified that on February 14, 1979, she was approached by Sibulkin while she was working and he said that he wanlted her to keep her out- side activities in the designated areas. She said she did not know what he meant, and he told her to read the bulletin board. About a month later Sibulkin again came up to Stinch- field and said he wanted to remind her about solicita- tions. He said he was giving her another warning to desist or she would be "outside the door." He told her that "people" had been telling him that she was still doing the same thing. She remonstrated with him about corridor gossip, but he merely replied that he did believe it. Stinchfield admitted to passing out union cards, but stated that she had done so only in nonwork areas and on nonwork time. Stinchfield's testimony was candid and credible. Sibul- kin did not deny her story. These warnings, if they related to a valid no-solicita- tion rule, would certainly be inoffensive. However, I have found that the rule promulgated on November 21, 1978, and posted on the bulletin board was in fact de- signed to thwart the employees' lawful organizational ef- forts. Thus these warnings, particularly in the absence of any evidence that Stinchfield or any other employee en- gaged in solicitation or distribution of union literature in patient care areas of the Home, constitute further viola- tions of Section 8(a)(1) of the Act. 6. On March 31, 1979, in the kitchen of the Home at or about 6:15 a.m. Carl Graham, Respondent's food ser- vice director and supervisor in charge of the kitchen, was preparing breakfast. Only one employee, Susan Vachon, was present. Vachon testified that while she was making toast Graham asked her if she had signed a union card. Graham did not specifically testify about this conversation, but did deny that he had ever asked Vachon about her signing a union card. I found Vachon to be a credible witness even though she testified only as 466 CLARK MANOR NURSING HOME CORP to this brief incident. Graham testified at length about a number of incidents and, as I will discuss in more detail later, I did not find him to be candid or credible about most of those incidents. Likewise I do not credit his denial here, and I find that this interrogation violated Section 8(a)(l) of the Act. 7. Another incident involving Bradway happened on March 14, 1979. A maintenance employee named Theo- dore Dumas had just come in to work at 3 p.m. He was in the parking lot near a basement entrance to the home when he started talking with Bradway. In the course of a conversation about what had happened at the Home over the previous weekend, Bradway suddenly asked Dumas how he felt about the Union. Dumas shrugged his shoulders. Then Bradway added that the Union really did not belong in "a place like this." I found Dumas, like Vachon, to be a candid and credible witness, albeit on short exposure, and Bradway, of course, did not testify. While this short exchange would not, in isolation, seri- ously contravene the law, I feel that, in the context of so many similar incidents, this one tends to fall into a pat- tern. Accordingly, I find that this interrogation violated Section 8(a)(1) of the Act. 8. Rene Lyman, a dishwasher employed in the kitchen, testified concerning a conversation with Carl Graham on May 16, 1979. Lyman and Robert Shea, another dish- washer, had been active in the union campaign. Lyman was a member of the organizing committee, had attended meetings, and passed out literature. On that morning Graham was telling several employees, including Lyman. Robert Belanger, and Lyle Croft, that they should vote and vote as they felt. He then turned to Lyman and said, "You and Bob Shea, you'll learn the hard way." Lyman's testimony was corroborated by Belanger and was not denied by Graham. I found both Lyman and Be- langer to be credible witnesses and I find that Graham's remarks constituted a threat of retaliation for the union activities of Lyman and Shea and a violation of Section 8(a)(1). Shea's situation will be discussed further below. Lyman voluntarily left Respondent's employ in July 1979. 9. In late November or early December 1978 another kitchen employee, Theresa Yurick, testified that during the morning break Graham asked her if she were going to vote for the Union, and if Sue Vachon were going to. Yurick replied that she did not know. Again Graham generally denied asking employees about their union sympathies, and again I do not credit that denial, but do credit Yurick's version of this event. Therefore I find this interrogation to be a further violation of Section 8(a)(1). 10. The complaint herein, as amended at the opening of the hearing, alleged that Sibulkin threatened employ- ees with termination and called the police again on Feb- ruary 6, 1979, on account of the handbilling which had started again after the dismissal of the trespass charges against Baker and Nishan on January 18. No evidence on this allegation was introduced and I recommend its dis- missal. II. On or about April 24, 1979, Kim Bolio, a physical therapy assistant, had a conversation with Respondent's receptionist, Sue Corbett, in which Bolio expressed her concern over the union campaign and further stated her own antiunion feelings. At this point Sibulkin came up. There is some discrepancy in the versions of this incident related by Bolio, Corbett, and Sibulkin, particularly as to its location, but the substance of the exchange between Bolio and Sibulkin is fairly uniform in all three versions. In this conversation Bolio volunteered the fact that she was concerned and that she was against the Union. There is no indication that Sibulkin interrogated her about this, but he did advise her to circulate, as her job took her, throughout the Home, and tell the people she encountered how she felt without any restriction on pa- tient care areas, or any limitation on this activity to non- working time. I cannot find this incident to constitute further unlaw- ful interrogation, but I do find it to be convincing evi- dence of Sibulkin's disregard of his own no-solicitation rule. This has led me to find, as I have above, that the promulgation of the no-solicitation rule was not prompt- ed by legitimate business reasons in this health care insti- tution, but as a device to restrain and coerce the employ- ees in their organizational efforts. I recommend that this allegation of the complaint be dismissed. 12. At some time, the date is imprecise but apparently early in September 1979 a maintenance employee named Gregory St. Jacques asked to see Sibulkin about 2 or 2:30 in the afternoon and the two of them went in to Si- bulkin's office and talked. St. Jacques was concerned be- cause he had not received a raise to which he thought he was entitled. He had received periodic increases as grant- ed by Respondent each November, but he felt it was unfair that with 3 years' experience he was being paid at the same rate as new employees. In the course of a wide ranging conversation covering such diverse subjects as schooling, jobs and occupations, the problems in running a nursing home, and St. Jacques' future prospects, Sibulkin said that he could not give St. Jacques a raise at that time because there were a lot of troublemakers he had to deal with before he knew "ex- actly who he's dealing with." Sibulkin went on to say that he had to get rid of the troublemakers. St. Jacques asked if they were the people in the Union, to which Si- bulkin responded, "Yes, you know who I am talking about." The foregoing is based upon the testimony of St. Jac- ques, which I have credited. It is true that St. Jacques admitted on cross-examination that he was upset at not getting a raise, but he seemed, rather philosophically I thought, to accept that, and, significantly, he was still working for Respondent at the time he testified. His de- meanor impressed me as candid and open, and while his memory was not of the best, his recollection of Sibulkin's words was fairly uniform and not elicited by leading questions. I thus credit his testimony on this matter, which was not denied by Sibulkin. The significance of this conversation is not only in the threat which it conveyed to St. Jacques to the effect that union activity invited retribution, including termination, but also its revelation of Sibulkin's state of mind with refercnce to union activists who already had been dis- charged. as Fowley and Girard, or had work opportuni- 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties denied, as Shea, or received warnings or changes in status, as Baker, Stinchfield, and Burke. This state of mind I find to be set against those employees he identi- fied as prounion. I shall use this finding in considering, below, the disciplinary action taken against these em- ployees. More to the point at this stage of this decision, I find that Sibulkin conveyed to St. Jacques a clear threat of retaliation for union activity in violation of Section 8(a)(l). 13. On June 15, 1979, Linda Nishan tendered her resig- nation to Respondent. At that time Respondent main- tained a form headed "Personnel Change Form" show- ing changes in status of employees for use in maintaining orderly personnel records and to have a reference in case a departing employee should apply for work again. One of these forms was made out for Nishan on June 15, showing her resignation to take effect on June 29. On this form Director of Nursing McPartland noted that Nishan was not recommended for reemployment in the same department, further noting, under the space pro- vided for "remarks" the words "union organizer" and "good nursing ability." McPartland admitted that she made the note about Nishan being a union organizer because she did not ap- prove of unions in health care facilities. She added that if she were to refer to that file she "would take that into consideration." She stated that she would think twice about rehiring Nishan because of her disapproval of unions at health care facilities. She did not directly state that she would not rehire Nishan because of this fact, but admitted that she would "think about it." 4 There is no question over McPartland's right to hold whatever opinions she wishes about the good or evil of unions in health care facilities. Nor, in the abstract, would there be a serious question about her notation on the file of a departing employee that she was a "union organizer." However when the permissible thought, and the innocuous notation, became a specific recommenda- tion against reemployment, I find that McPartland has crossed the line from free speech and thought to pro- scribed activity. Whatever McPartland may have recom- mended to the hospital where Nishan went to work, or whatever McPartland might have done if Nishan reap- plied to the Home the personnel change form remaining in the files of Respondent constitutes an interference with the rights of Nishan to participate in union activity free from restraint and coercion. I find this personnel change form to constitute a violation of Section 8(a)(l) of the Act. D. The Alleged Violations of Section 8(a)(3) and (4) 1. Karen Baker and Linda Nishan At the time of the hearing in this case, Karen Baker had been employed as a nurses aide at the Home for 3 years. As described above, she was the first employee to become interested in the Union, and thereafter remained active on the organizing committee, soliciting authoriza- 14 McPartland also stated that she had given Nishan a good reference for a good job at n area hospital, where she apparently sias worrking at the time of this hearing. tion cards, and handbilling, particularly in Respondent's parking lot. On November 22, 1978, as a result of her handbilling in the parking lot on November 15 and 20, Baker re- ceived in her pay envelope an employee warning notice, indicating that this was a first warning for her disregard of Respondent's policy against "loitering" during off- duty time on November 15 and 21. On December 7 Baker received another notice, this time a second notice, for the incident of November 29, described above. This notice indicated that "any further miss conduct [sic] will lead to your termination of em- ployment." Also on December 7, Linda Nishan received a similar warning for her conduct on November 15 and 29, 1978. It is clear from my findings above that Respondent's policy against "loitering," denying off-duty employees the right to remain on Respondent's property outside of the Home itself was invalid and unlawful, whether in its original version or as restated in the November 21 notice. It follows, then, that disciplinary action in the nature of warning notices'" is likewise unlawful. I thus find that the issuance of these two warnings to Baker and one to Nishan violated Section 8(a)(1) and (3) of the Act. On January 18, 1979, Baker received in her pay enve- lope a notice on a form changing her employment status from full time to part time. There was no signature on the form Baker received, and the form merely indicated that it was from the payroll department. The copy of the form retained in Respondent's personnel file, however, bore the notation "Attached to pay check 1/18/79 R.C.H. per Fran." Respondent's personnel policies designate full-time em- ployees as these "regularly scheduled and working" 40 hours a week. Part-time employees are those "regularly scheduled and working" 24 to 39 hours a week. 6 There are distinctions in the schedules of benefits listed in the personnel policies for these groups of employees. For ex- ample, full-time employees receive pay for all holidays. Part-time employees are paid only if they work on the holidays. Full-time employees also receive more bereave- ment days, sick days, and have lower eligibility for enti- tlement to 2-week vacations. Thus it appears that the change in status from full time to part time has an ad- verse effect on employment benefits. 7 The reason for the change in Baker's status was ex- plained by Rita C. Hill, a clerk in the payroll depart- ment. She testified that she had begun to work for Re- spondent on July 27, 1978. At the time she started she was given little training so was not aware of Respon- dent's practices in classifying employees as full time or part time. Then in December of 1978 she was confronted with the job of determining who was full time and part time in order to prepare bonus checks and to pay for ' Respondent's pcrslrinel policies provide that three such warnings will ]clad tr trlillr;tiol oi t cipllI ylCent i shos t rorkilg less hilil 24 hours a week arc ctlassilied as "relief erlpl ee" hutlil these eCnlplo,res iare illl 1illl s ied here 17 There is Ill eidcllcc Ihatl htere is anN: difference In age rates he- tween thcse t io groups (' empliyees 468 CLARK MANOR NURSING HOME CORP. unused sick days. 8 She stated that she found this very difficult and determined that it would not happen again. At some point after the first of the year 1979 Hill stated that she found the forms used in Baker's change of status in a drawer, and, for no apparent reason, picked one out, reviewed Baker's attendance record, found that the lat- ter's hours did not average 40 over a 3-month period. and then issued the form changing Baker from full-time to part-time status. After this, Hill waited to see "if anyone said anything" but issued no more change of status forms until May 1979. '9 Hill explained the notation on the file copy of Baker's form as meaning that Frances McPartland had approved this action after the fact. In May and June a number of these forms were issued in accordance with Respondent's practice. This was de- scribed by Hill as involving a continuous review of em- ployee hours by the payroll department. If an employee's hours reviewed for a 3-month period fell below the mini- mum hours for his or her status, according to Hill, the employee would be issued a warning to bring the hours up. Hill was somewhat confused on the question of whether a warning would be given to someone who was scheduled to work 40 hours, but for somn reason did not know or whether the warning was not given to that em- ployee. Hill was similarly confused when she was confronted with the names of other employees who had worked less than the required average in the period up to January 1979. She was unable to say why Baker was chosen or why the others were not. Hill's testimony on this incident did little to inspire confidence. I can understand her frustration and confu- sion in December 1978 when she had to figure out the eligibility of 150 employees for sick leave pay and bo- nuses. But her expressed determination that this confu- sion would not occur again fell very short when she picked out only one employee between January and May. This would do little to settle the confusion. The question of why Baker was chosen eludes an answer in Hill's testimony. However, that question may be logical- ly answered by reference to the notation on the file copy "R.C.H. per Fran." It seems clear to me that Hill (R.C.H.) did not do this on her own, but at the request of McPartland (per Fran). These last words would not have been used, in my opinion, for an ex post facto ap- proval, but rather indicate to me a prior direction. Thus I do not credit Hill's explanation for this action, and find that McPartland in fact directed that Baker's status be changed. 2 Moreover, all of the facts, Hill's unfamiliarity with the system; her inability (or unwillingness) to explain why Baker was singled out, the fact that no other employee among all those subject to this change of status were Is Full-time employees earned 6 sick das, per year Parl-nnlln emnplo.- ees earned days The personnel policies prosided that unused sick das would be paid by Respondent at the end iof each year 11 The charge in Case I CA 157 96. alleging his action Io be a ufair labor practice as filed on March 19. 179. 20 1 assume, in the absence of any eidence. that Baker' atletldani record did bring her wilhin Respondent'si polic> rhere is nto hcli ;o that she had Lveraged 4 hours per '.cek er the 3-month pod prirt to JanuarN I, 1979 changed until 5 months later; and the fact of McPart- land's involvement given her admitted dislike of the Union and her actions, discussed above, with regard to Nishan lead to the conclusion that McPartland ordered Hill to issue the change of status form for Baker. I fur- ther infer and find that the motivation for this action was Baker's activities on behalf of the Union, and constituted a violation of Section 8(a)(1) and (3) of the Act. 21 Another incident involving Baker occurred in March 1979. On March 13 she received a notice on her pay en- velope to see McPartland. Baker was unable to keep the appointment because she had another job during the day. She then received a call from someone who identified herself as calling for Sibulkin. They attempted to arrange a meeting for Baker and Sibulkin but Baker could not make it at the suggested times and the meeting did not take place. The reason for the meeting was revealed to Baker through a third warning notice dated March 15, 1979. This notice was signed by Sibulkin and informed her that, because of her failure to meet with Sibulkin as re- quested, he had "no alternative but to issue a warning for" her leaving work and the building at 6:50 a.m. on March 8. Baker recalled that she had actually left the building some time after 7 a.m. that morning and she also remem- bered that she had left in the company of Frances Meade, a registered nurse who works for Medical Hospi- tal Pool, an agency which provides temporary nursing help to employers in the area. Baker spoke to Meade who wrote a note to Sibulkin stating that Baker had left the building with her at or about 7:15 on the morning of March 8. Baker added a letter of her own and forwarded both notes to Sibulkin. A day or so later McPartland called Meade, informed her that two people had seen Baker outside the Home at 6:50 a.m., and asked if she wanted to retract her state- ment. Meade mentioned that Baker was a good employ- ee, in contrast to others on the night staff and that she, Meade, thought that it was too bad that she was getting a warning. McPartland agreed, pointing out that she had assigned Baker and another aide a special time schedule. She went on to agree with Meade's evaluation of Baker as a nurses aide, and that she thought it was unfortunate that Baker was involved in the union activities at the Home. There was some additional conversation about the Union, and unions in general. Meade shared McPart- land's views and asked her for some details on the cam- paign at the Home. McPartland informed her of the pro- gress of the campaign, pointing out that she thought the Union was strongest on the night shift and in the kitch- en. The conversation concluded when McPartland asked Meade again whether she wanted to reconsider her posi- tion on Baker in view of the two witnesses who saw Baker outside at 6:50 a.m. Meade said she would think it over. Within a couple of days Sibulkin called Meade on the telephone and asked if she had reconsidered. She replied i' l; ia r lt.ificd Ihat he did nol reall lhmg al, hbenefits on account of this actionl to'sCer. her eligibilit for hriefis \as rducrd fir s lmig ,is li rlrit.i d in1 par t-llnlte itais 464 l DECISI()NS OF NAIIONAL LAIOR RELATIONS H()AR) that she was not going to change her position and that she felt strongly that Baker had not been absent from the floor long enough to have gone out to the parking lot and come back. Sibulkin pointed out that she could not see her nurses aides at every moment and that she could have been distracted long enough for Baker to have gone out of the building and returned. Meade then told him that she still felt that Baker probably had not been off the floor long enough, but that if he put the case that way she would have to go along with the fact that she could not say where Baker was for every minute of that time period. Sibulkin then replied to Baker's letter, saying that Meade stated that it was possible that Baker had left the building at 6:50 a.m. He declined to remove the warning from Baker's file. These findings are based on the credible and undenied testimony of Baker and Meade. I was particularly im- pressed by Meade as a witness. Despite her admitted dis- like of unions, she testified on behalf of the General Counsel, and, as an employee of an outside employer, had nothing to gain or lose by her testimony here. Meade's testimony points directly to the motivation for this warning notice.22 McPartland, speaking to a person of her own professional level, who shared her views on unions, candidly admitted that Baker was a good em- ployee, and that it was unfortunate that she had gotten herself involved with this Union. In view of this conver- sation, together with McPartland's already established hostility, in word and action, toward the Union and union adherents, and the failure of Respondent to identi- fy the two alleged witnesses to the incident either to Meade, or at this hearing, I infer and find that the mici- dent either did not happen at all, or that Respondent's in- formants got their times mixed up. In any event, the evi- dence in this case shows that the practice of employees leaving the premises while on duty was commonplace, and there is nothing in the record to indicate that any other employee was ever warned for this reason. In the circumstances, I find that the warning of March 13 was given to Baker in retaliation for her activities on behalf of the Union and constitutes a further violation of Sec- tion 8(a)(1) and (3). The final incident concerning Karen Baker also in- volved Ruth Burke, a nurses aide on the same shift as Baker. For some time before the Union began organizing the Home, Baker and Burke had enjoyed a special sched- ule which provided coverage for the Home, but also al- lowed each of these employees more freedom on week- ends. This had been initially arranged with their shift su- pervisor, and had been approved by McPartland. Indeed McPartland had mentioned this "special" schedule in her conversation with Meade in the middle of March 1979. At some time after that McPartland was talking with her sister, a nursing supervisor at a hospital in Rutland, Mas- sachusetts. They were discussing this schedule, and McPartland's sister informed her that she had had prob- lems with a union at her hospital over that kind of 22 Neither McPartland nor Sibulkin estified as to an) of the facts of this incident schedule. McParland thereupon terminated the special schedule effective April 1, 1979. This record amply demonstrates McPartland's hostility toward the Union, and her actions with respect to Linda Nishan and Karen Baker show her readiness to apply this hostility to illegal actions against them. In this situa- tion her motivation, as shown by evidence, is different. She did not change the schedules of Burke and Baker be- cause of their unionl activity, or to retaliate against them on that account. Her expressed motive was to avoid future problems in arranging or rearranging schedules if the Union were certified as the employees' bargaining representative. Thus she took this action because of the union activity of all of the employees of the Home. In this incident, the different motivation does not man- (late a different result. Management may certainly change schedules where its employees are not represent- ed by a collective-bargaining agent. but it may not do these things where, as here, the expressed motivation is the organizational effort employees. Accordingly, I find this schedule change on April I to be a violation of Sec- tion 8(a)(I) and (3) of the Act. 2. Ann Stinchfield Otn March 22, 1979, Ann Stinchfield, a nurses aide on the 7 a.m. to 3 p.m. shift, received a written warning for two incidents. The first was an allegation that Stinchfield had told a patient that they had no toast on March 15, and then, on March 16, she had failed to dress a patient in a proper malnner. The evidence on these two incidents was supplied by Stinchfield on one hand and McPartland on the other. Stinchfield stated that on the morning of March 15 she was working and serving breakfast to patients. A patient, Hooly,2 3: asked for some more toast. Stinchfield replied that it had not been sent up yet, but that she would order it. This apparently upset Hooly, and when the toast did come up she refused it, saying she had already had her breakfast. Sometime later that day, Stinchfield's supervi- sor, Madelaine Sullivan. came up to her and told her that she had upset a patient by handing her an empty plate and telling her there was no toast. Stinchfield explained the incident and told her that her charge nurse, Mary Driscoll, could verify this. They went to see Driscoll. Driscoll seemed, in Stinchfield's testimony, to be more concerned about the lack of sufficient toast. but did verify that Stinchfield had called the kitchen for more toast. The only other testimony on this incident came from Frances McPartland. However, her version of events derived only from her interview with Sullivan, who apparently had spent some time calming down Hooly, from the patient herself, her daughter, who also was a patient, and from Carol Kelleher. McPartland did not speak to Stinchfield about the incident. The second incident mentioned in the warning in- volved a patient named Ryan. McPartland testified that on March 16 she came upon Ryan, and in assisting her to the bathroonl found that she had not been dressed with underwear. McPartland found out that Stinchfield had :' ()it ioic as it s solmoi/clr spellc(l i the recCord 470 CLARK MANOR NURSING HOME CORP. been responsible for this patient, and called supervisor, Carol Kelleher, who explained that Stinchfield had said that Ryan was "too confused" to be dressed with under- wear. McPartland ordered that Ryan be fully dressed, and issued a warning to Stinchfield for these two inci- dents. Stinchfield did not disagree with this version of the incident. There was, however, a disagreement as to the practice at the home of dressing patients who were confused, incontinent, or careless. Stinchfield stated that there was no real policy and that she was told to use her own judgment in making determinations on dressing pa- tients. She also said that she had dressed Ryan without underwear for a year before this incident. McPartland emphasized the commitment of the Home to quality, and to the treatment of patients at all times with respect and dignity. She mentioned that she constantly advised em- ployees and supervisors of this with particular emphasis on the dress of patients, that they should be fully dressed, including underwear, during waking hours. These are laudable goals, manifestly and devoutly to be wished in those institutions where, it is sad to say. many of us will spend our last days. Beyond this, I cannot say, even though there was no physical abuse here, or any danger to the health or well being of pa- tients, that these incidents were minor in nature or unde- serving of formal reprimand. However there are other elements to be considered. I have noted the oral warn- ings given Stinchfield by Sibulkin for alleged improver union activity, despite the lack of any evidence in this case that anyone engaged in such activity. I have noted further the tendency of McPartland to transform her dis- like of unions into concrete and illegal actions affecting Nishan, Baker, and Burke. The evidence further shows that the policies of the Home, relating to solicitation and leaving the premises, were uniformly disregarded by em- ployees and lower level supervisors alike. In this incident McPartland's own testimony shows that she did some in- vestigation, but never talked to Stinchfield, and that she did not follow her usual practice in cases of this type of talking the matter over with the offending employee and giving a verbal warning before instituting more formal proceedings. Here McPartland admitted only that she had spoken to Stinchfield before, on other matters, but had never given her a verbal warning. My decision on this incident is not made any easier by the absence of tes- timony from the supervisors involved, Sullivan and Kel- leher, or the only employee witness to the Hooly inci- dent, Mary Driscoll, but I will not raise any inferences from this lack of corroborative evidence. Therefore, having found that McPartland has shown a tendency to discipline or otherwise treat employees in a way that violated the law, and in view of her variance from her usual practice in issuing warnings, I find that this March 22 warning to this union activist likewise vio- lated Section 8(a)(1) and (3) of the Act. 3. Robert Shea Shea was employed in the kitchen at the Home from May 29, 1977,24 to May 27, 1979, as a dietary aide, pri- marily a dishwasher. He was enrolled at a local college, 24 At first Shea missrated this date as Ma 29,4 1979 and was regularly scheduled to work only on weekends from 7 a.m. to 3 p.m. According to his supervisor, Carl Graham, Shea was a good employee, and, by the spring of 1979, he had acquired sufficient seniority among the dishwashers so that Graham would call him first to fill in during the week when needed. 25 During the winter months Shea played hockey so he was not available, but otherwise he would be called frequently. Respondent's kitchen schedule for the period from April 29 to May 26, 1979, shows that from the beginning of the schedule until May 13 Shea worked the 7 a.m. to 3 p.m. schedule every day except for two Thursdays, May 3 and May 10, and Saturday, May 12.26 Shea had also got himself involved in union activities in the spring of 1979. He handed out literature and cards, he was named as a member of the Union's organizing committee on its literature, and at the election on May 17 he acted as a runner for the Union, going to each de- partment to inform employees of their time to vote. Graham testified that the schedule for each month was made up by him in advance and posted in the kitchen for all employees to see. He noted that Shea., as a "relief' employee, was scheduled to work only on weekends. Then Graham would add his name to the schedule during the month as Shea worked on days other than weekends. According to Graham, a dishwasher quit during the week of May 13, 1979, and that sometime over the weekend of May 12 and 13 he asked Shea to come in every day during the week.27 Shea at first agreed to this, but later called Graham and told him he had "a lot of doctor's and dentist's appointments that week and he could not work." Shea's version of this is somewhat different, and also somewhat confusing. At first he testified that he was scheduled to work on the Wednesday before the election and he told Graham that he needed a day off to straight- en out his college schedule, then he said that he told Graham that he needed the whole week to do this.2 Later his story was that he had exams during that week, and finally he admitted he had told Graham he had a doctor's appointment in that period. All of this convinces me that whatever Shea may have recalled on the witness stand, he did at some point tell Graham that he had medical appointments during that week. Respondent's policy on dealing with employees who have reported sick was, according to Sibulkin, flexibly administered in the discretion of the department heads. :. Dring May Shea was offered a full-time job hy (iraham. but he declined because of his commitments to college i (Giraham estified that Shea worked "a few days" in Ma. becaluse he needed a. disha s hcr. but that h ould not work son -hursdays because he ad "somehing n." Graham added hat on those Thursdays he sas, Shea outside passing out leaflets for the Union 21 Shea was to come in on the 7 a m to 3 p m shift The schedule, however, showu;s that one employee quit during the week of May 13. but that employee, S Ferraro. is shown on the schedule as calling in on May 16 and quitting Ferraro was scheduled to work on May 16 through 18, hut oil 1 3p m t 8 pm schedule According to this, Graham could not h;a ha.le kli vlw;l ibout Ferraro's resignation on May 12 or 13. ad Iis schedule was different from that assigned to Shea 2 In his initial testimony he did not say that he had been scheduled to ,s rk he wholc c'k 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Depending on the circumstances, a doctor's note or cer- tificate would not be required for minor illnesses lasting a few days. If, however, an employee was out for more than 3 days of a scheduled workweek then ordinarily a doctor's note would be required. Sibulkin noted that as a health care institution the Home was concerned about contagion, and as an employer the Home was concerned about the ability of an ill or injured employee to perform on his or her return. Graham testified that he always re- quires a doctor's certificate if an employee is out for more than 1 or 2 days. Shea remained out for that whole week of May 13, 1979. As I have found, Rene Lyman testified that on May 16 Graham told him that he and Shea would "learn the hard way." I found this, as corroborated by Robert Belanger, to be a threat of retaliation for the union ac- tivities of Lyman and Shea, and a violation of Section 8(a)(1) of the Act. 29 At some time, the record is not clear as to when Shea noticed that his name had been crossed off the schedule for May 19, 20, and 23. He stated that he spoke to Graham about this and that Graham told him he had nothing to do with it, and that "the boss" told him to do it. Both Graham and Sibulkin denied that Sibulkin ever dictated any scheduling in the kitchen. Graham admitted, however, that he did consult with Sibulkin about a doc- tor's note for Shea. In general I found Graham to be an unreliable witness. His testimony was rambling and discursive, but his memory concerning his own schedule was not good. His testimony was contradicted by Susan Vachon, and The- resa Yurick whom I have credited, and his testimony about his relations with Francis Fowley, particularly when he asked Fowley to bring him the key to his house, and when Fowley did so, Graham's testimony that they had no conversation at all, makes all of Gra- ham's testimony on substantive issues suspect. His de- meanor, likewise, was furtive and sly, despite his garruli- ty. I will deal with the question of Sibulkin's credibility later, but suffice it to say at this point that it is my view that he was aware of everything that went on concern- ing the Union and its adherents, and that nothing was done to those adherents without his direction or approv- al. Shea demonstrated a poor memory in testifying about his reasons for being off during the week of May 13, but otherwise impressed me as a candid and truthful witness. He certainly made no secret of his foul mouth or his brawling and horseplay around the kitchen. The record shows that this had no part in the incident under discus- sion here. I therefore find that Shea accurately represent- ed the conversation with Graham which occurred some time between May 17 and 26. On May 26 Shea worked on the 7 a.m. and 3 p.m. shift according to his usual schedule. Sometime during the day Graham told him that he would have to produce a doctor's excuse, or excuses, for the days he did not work during the week of May 13. There is a great deal of testi- '2 Lyman stated that he, elanger, and l.yle Croft were present in the kitchen on May 1. I'his is verified by the schedule showing all three working from 3 p m to 8 p.tn that night. mony about what was done after that, but further discus- sion of this is unnecessary to this decision. Shea never worked for Respondent after May 26, 1979. Even assuming that Sibulkin accurately described Re- spondent's policy with regard to doctor's certificates, there is no indication in his testimony that the same policy applied to a situation where, as here, Shea was a casual employee during the week, and was scheduled only on weekends, with additional work requested as needed. Graham testified about times when Shea was asked to work and could not, with no requests for ex- cuses. Further, in view of my findings on Graham's credibility, I do not find that he asked Shea to work during the entire week of May 13 and Shea first accept- ed, then refused on account of "doctor's and dentist's" appointments. I find, rather, that Shea was scheduled to work on Wednesday that week and that Shea told Graham something indicating he had to see a doctor during that day. Then, Graham scheduled Shea to work on Monday, Tuesday, and Friday without consulting him. Thus I find that Shea was not "scheduled" for that whole week. This is consistent with all of the testimony concerning Shea's working arrangement, and Graham's testimony showing that he was not scheduled except by mutual agreement from Monday to Friday. Since Shea offered the doctor's visit as an excuse only for I day, under either Sibulkin's or Graham's version of the Home's policy on employee absences for sickness, Shea would not have been required to produce a doc- tor's certificate. In so finding I find further that the re- quirement for a doctor's certificate in this case was a pretext so that Respondent could get rid of Shea. This is apparent when one considers Graham's remarks to Lyman on the day before the election, Graham's com- ment to Shea that "the boss" told him to reduce Shea's hours, and the statements of Sibulkin to St. Jacques, in September 1979, that he had gotten rid of "troublemak- ers" involved with the Union. All of these reasons lead me to find that the real reason for denying employment to Shea was his activities on behalf of the Union. I find that this violated Section 8(a)(1) and (3) of the Act. 4. Paul Girard Girard worked in Respondent's maintenance depart- ment from June or July of 1977 until his discharge in August 1979. He was active in the union campaign in the spring of 1979, being named as a member of the organiz- ing committee in the Union's literature and wearing a number of prounion buttons on his shirt and on his hat. His work record up to July 19793' was good, and he had received no warnings or reprimands. Like Shea, Girard was a part-time worker who worked on weekends and afternoons during the week after school. His duties consisted mainly of sweeping and mopping together with related tasks. The events leading up to Girard's discharge began on July 6 when Maintenance Supervisor Norman Lucier asked Girard and another part-time employee, O'Conner, :"' All dalc hereafter re in 179 unless oiherwise specified 472 CLARK MANOR NURSING HOME CORP. if either of them would take care of the distribution of linens in the Home on the next morning because the person who ordinarily did that was going to be off. O'Conner said that he did not know how to do it, but Girard said that he had helped the former supervisor, Bradway, do it on one occasion. Lucier then assigned Girard the job, emphasizing that it had to be done first thing in the morning. (The job is apparently quite simple, and directions for distribution are displayed in the cen- tral linen storage room explaining where and how much to deliver.) Girard apparently forgot to do it, or did not do it correctly, because he testified that at or about 11 a.m. Sheila Shanley, another maintenance supervisor, ap- proached him and told him he was supposed to have dis- tributed the linen, that he had not done it, and that he was going to get a "big, fat warning." Shanley did not specifically deny this, but in her testimony told a slightly different story of her conversation with Girard on the morning of July 7. Since Sheila Shanley is a key figure in this incident, and in the incident which resulted in Girard's discharge, I have evaluated her testimony carefully. It appears from the record that Shanley was one of the first employees to become interested in the Union. She was a longtime em- ployee and at the beginning of the union campaign worked in the laundry. She became a member of the Union's organizing committee and began to attend meet- ings. Before one of those meetings, about April 22, the union officials who were in charge had heard from un- identified informants that Shanley was speaking unfavor- ably about the Union to employees. She came to the meeting on April 22 but was told by Ronnie Keane (or Kean), another organizer, to leave the meeting. She asked to confront her accusers but was refused, and she left. Shanley was extremely upset by this, whether or not she had been acting as a double agent, and thenceforth was strongly opposed to the Union. In fact, when Court- ney came to her home the next day to tell her that the Union was still investigating the claims against her, he testified that she was reluctant to let him into the house, and said that it was a good thing that "that no good god- damn [sic] kike Kean didn't come here."31 She further told Courtney that she was no longer interested in having the Union come into the nursing home. Shanley's own version of the incident with Courtney was that she was angry at her expulsion from the meeting and that she had no respect for Keane. She added that if he did approach her house she would "hit him over the head with a broom." She specifically denied calling Keane a "no good goddamn kike," and, indeed, averred that she did not know what the term "kike" meant. Immediately after the election Robert Bradway, the supervisor of maintenance, left, and Respondent appoint- '3 My failure to allow this conversation in to the record when object- ed to by Respondent on the grounds of hearsay led to a special appeal to the Board by the General Counsel on November 15. 1979. The Board granted this appeal, reversed my ruling, and ordered me to admit the tes- timony offered, on November 19 However, after the appeal was filed, on November 15, the testimony in question was offered again, was not ob- jected to by Respondent, and was received. The hearing closed on No- vember 15 It is m view that the receipt of the eidence hich 'was the subject of the appeal rendered that appeal moot. However, I accept the reversal of my original ruling b the Board ed two people, Norman Lucier and Shanley, as supervi- sors. It is evident from all this that Shanley was after April 22 hostile toward the Union. Further, her denial that she even knew the meaning of that insulting term "kike" makes me skeptical of her credibility. In addition to this disingenuous remark, I found her testimony to be ram- bling and vague, perhaps purposely so, in view of her demeanor, which I observed as shrewd and calculating. I therefore do not credit her testimony where it differs in substance from that of Girard. I found the latter to be credible and straightforward, candidly admitting in the case of the linens his own failures. He is young and inex- perienced, and I can see where a task which Respon- dent's witnesses saw as simple could be difficult for him. Norman Lucier impressed me as a man who wished he were a mile away from the witness stand where I ob- served him. His memory of events was poor, mixing up in his testimony the several warnings that were given to Girard, and seeming, particularly in regard to the final warning of August 27, to want to avoid responsibility for the decisions he admitted that he made. I did not find Lucier to be a particularly credible witness. Turning, then, to this first warning, it is undisputed that Girard did not pass out the linens on time. In the sequence of events following that failure I credit Gir- ard's story that Shanley spoke to him about this, and promised that he would get a warning for it. Lucier's story that Shanley did not speak to him about it is not believable. If the facts were otherwise it is hard to un- derstand why Lucier varied from his usual practice of discussing problems with employees and giving verbal, rather than written warnings. Indeed he stated that he did not give written warnings, but admitted here that he gave both a verbal and a written warning. This circumstance, considered in the light of Shanley's avowed hostility toward the Union and Sibulkin's re- marks, shortly after Girard's discharge, to St. Jacques that he had eliminated union "troublemakers" from the Home, leads me to the conclusion that this incident is a further manifestation of Respondent's retaliatory actions against its employees for their union activities. If it were not for Girard's union activities I infer and find that he would have received an oral warning for his failure to distribute the linens. The written warning so given set Girard on the path which led to his discharge. I find this written warning to be a violation of Section 8(a)(1) and (3) of the Act. The next incident involving Girard occurred on August 3. Again the facts constituting the incident itself are substantially undisputed. Girard was sweeping the rear entrance to the Home when three friends of his came up. They were talking when they were observed by Sibulkin. He approached them and asked Girard why he was talking instead of working. Girard explained that one of his friends was taking Girard's truck and chain saw, and leaving a motorcycle for Girard to use. Sibul- kin then turned to one of the visitors and said to him that he might just have cost Girard his job.32 Sibulkin also , I have noted Sibulkin's failure lto request these oung men to leave as incilnslslenil with his .(lwcd concerti with security in the Home 473 I)ICISIONS OF NA IIONAL LABOR RELATIONS BI()ARI) premises, but there is no indication that anything further was done about that. If Girard had merely been issued a warning because of this incident there would not appear to me to be any evi- dence of discrimination. However, it appears that it did not happen that way. Sibulkin at first testified that he did issue a written warning to Girard, then changed his story to state that he had told Girard's department head, Lucier, to do so. Lucier, on the other hand, admitted that Sibulkin had told him about the incident, but specifi- cally denied that Sibulkin had told him to issue a written warning. In addition Lucier was hopelessly confused about the date of the warning. Ordinarily warnings are placed in employees' pay envelopes on the next payday following the offense. Here the incident happened on August 3. The warning, then, should have been included in Girard's next pay envelope, distributed on August 9. The warning, however, was dated August 13. Lucier did not remember when it was actually given to Girard. The latter, however, testified credibly that he actually re- ceived the warning, together with his final discharge warning, on the day of his discharge, August 27. I view these discrepancies in the stories told by Sibul- kin and Lucier, and the embarrassed confusion evident ill Lucier's testimony as evidence that this warning was not really given for the offenses described therein, but for some other reason. I therefore infer that the other reason, as with the first warning, and for similar reasons, was made up predated, and given to Girard at the time of his discharge as justification for that discharge under Respondent's personnel policies. Based on these consid- erations I find that this second warning would not have been given to Girard if it were not for his union activi- ties, and constitutes a further violation of Section 8(a)(1) and (3) of the Act. The third and final incident involving Girard occurred on Saturday, August 25. I credit Girard's version of that day's events. He stated that he was washing floors on August 25 and had no discussions with Shanley, who was his supervisor. On Sunday, August 26, however, he testified that Shanley began to complain about Girard and O'Connor, who was working with him. Girard stated that Shanley told them that they had missed a spot on one of the floors, and then proceeded to tell them that their attitude was "lousey." She repeated this accu- sation at least once, but Girard said nothing to her except to ask why she thought that was so. Shanley's version, I find, was wholly untrue, albeit elaborate and verbose. I discredit her entire testimony on this incident and find that it happened as described by Girard. On the following Monday, Shanley spoke to Lucier. According to her, she told him what had happened over the weekend. He told her that she did not have to take the abuse from Girard that she described and told her he would handle the matter. Lucier on the other hand stated that Shanley came to him on Monday and told him she had had a problem with Girard in regard to sweeping. She mentioned something about backtalk, but he could not remember what was said. He indicated that she gave no details, but he decided to fire Girard on the basis of what Shanley had said. Girard testified that when he came in to work on Monday, August 27, he could not find his timecard. He went to see Lucier and was told that he was discharged. Lucier then told Girard that Shanley was responsible for it and that he did not know the reason They then went to see Shanley, who mentioned some dirt thrown in a corner by the elevator, and then unleashed a flood of words at Girard. Lucier then told Girard, "There's noth- ing you can do about it now," and then handed Girard his paycheck together with the second and third warn- ings. Girard's report of the events of this day and his de- scription of Lucier's and Shanley's conduct are com- pletely consistent with my observation of the two super- visors. Lucier was trying to please everybody, while evading responsibility, while Shanley was garrulous and imprecise. Having discredited Shanley and Lucier, and crediting Girard's story, it is apparent that the ostensible reasons for the discharge are not the true reasons, but rather a pretext, as in the other two warnings. I find, therefore, that Girard's discharge in fact was effected because of his union activities, and in retaliation for those activities and violated Section 8(a)(1) and (3) of the Act. 5. Francis Fowley Francis Fowley, also referred to in the record as "Butch," was employed in Respondent's maintenance de- partment from February 1972 until his discharge on May 18, 1979. He was a full-time employee whose duties in- cluded plumbing, electrical work, carpentry, and a little bit of everything. He had been a good worker and up to the time of his discharge he had received no warnings or disciplinary actions. Fowley became involved in the union activity at the Home almost from its inception. He apparently was quite militant since he admitted that at the first, or one of the first, union meetings that he would get personal satisfac- tion out of punching Sibulkin. This remark, or a version of it got back to Sibulkin and led to Bradway's conversa- tion with Fowley about the Union in October 1978 which I discussed above. Fowley continued his union activities after his conver- sations with Bradway October or November 1978. Then, about 2 weeks before Thanksgiving, Fowley asked Brad- way if he were going to work Thanksgiving, as he had always done, in order to earn the double time for work- ing the holiday. Bradway said yes, but then sometime later told Fowley that he could not work on Thanksgiv- ing. According to Fowley's undenied testimony, Brad- way told him that Sibulkin had looked at the schedule and asked why Butch was working-that he could not afford to pay this double time. Fowley was likewise denied the privilege of working on Christmas and New Year's Day, despite his custom in the past. Sibulkin did not deny this, and Bradway did not testify at all. In the same period of time, October or November 1978, Bradway again approached Fowley and told him that he would thenceforth have to work straight hours, either from 7 a.m. to 3 p.m. or 8 a.m. to 4 p.m. Before this, Fowley had more or less set his own hours, coming 474 CLARK MANOR NURSING HOME CORP. in earlier in the summer and later in the winter, and making up time when he might have taken off for doc- tor's appointments or other business. a Viewing these two incidents with the background of Bradway's two conversations with Fowley in October in which the former gave Fowley what I have found to be the impression that his union activities were under sur- veillance and that Sibulkin was aware of Fowley's state- ments about him as well as Fowley's prominent role in the union campaign and further noting Sibulkin's ex- pressed hostility as demonstrated by his actions involving Baker and Nishan and, finally the fact that Sibulkin nei- ther denied these incidents nor furnished any economic or other justification for changing Fowley's schedule or reducing his overtime, I find that these actions were taken in retaliation for Fowley's union activities and con- stitute violations of Section 8(a)(1) and (3) of the Act. On May 18, 1979, the day after the election, which had resulted in a vote of 35 for the Union and 63 op- posed, Fowley was late in coming to work. 4 Eli Ehr- lich, a psychiatric social worker employed on contract by Respondent, was standing by the main desk at the Home about 8:30 that morning when the telephone rang, and he picked it up. Ehrlich announced that it was the Home, and a male voice on the other end of the line asked who was talking. Ehrlich identified himself and asked who was calling. There was a pause, and the voice asked for a charge nurse. Ehrlich said there were none available, then asked if it were Butch. The voice, identi- fied as Fowley's by Ehrlich, then said "tell the charge nurse that I'll be in." Later in the morning, about 10:30, Ehrlich was again standing by the front desk when Fowley came by. Ehr- lich greeted him, and then Fowley asked him, with an obscenity, who he was to ask him who he was when he called. Ehrlich replied that, if he did not identify himself, Ehrlich would hang up. Fowley then turned to Ehrlich, pointed his finger at him, and said that if he did that "I'll take care of you." Fowley's version of this conversation was that, after Ehrlich greeted him, he merely said "don't bother me." As I have noted I believe, based on all the testimony, that Fowley tended to understate his actions on that day. It is evident that he was distressed and angry over the defeat of the Union after a long campaign in which he had been so closely involved, and it is unlikely that in admittedly striking out at persons he identified with the Employer's side in the campaign he was as restrained as he would lead me to believe. 35 Thus I credit Ehrlich's version of this incident. 3s The fact that he may have been carried on the schedule for particu- lar hours would cast no doubt on Fowley's statement which is undenied that he kept his own, informal, schedule a4 In making my findings on this incident I have relied on the testimo- ny of Eli Ehrlich, Kim Bolio, Elizabeth Giguere, and to some exlent Fowley, himself, although I have not credited his testimony where it conflicts with those others. In that regard I find that Fowley tended to minimize both his emotions and his conduct on May 18 As before I have totally disregarded Shanley's testimony, except to credit that she was at certain places at certain times. 35 Ehrlich was identified by Richard Courtney as rudely ordering him off the premises during one handbilling episode Following this encounter Ehrlich went to see Sibulkin and told him about it, adding that he was concerned about how Fowley might react to other employees, par- ticularly if there were a disagreement. Fowley proceeded to change into his work clothes and went to one of the solariums, where he joined em- ployees Janice Thienel, Marie Petit, and Chris Lamprey for coffee and doughnuts. They began discussing the union election and Fowley made a remark to Lamprey to the effect that her mother made up her mind for her. At this point, Fowley began discussing other employees in obscene terms, when Sheila Shanley came up to the table. Fowley directed a particularly obscene remark to her, to which, according to Fowley and Kim Bolio who also was there, she replied with a flood of equally offen- sive language. I do not, of course, credit Shanley's denial that she ever used such language. Shanley, however, went immediately to Sibulkin's office, in tears, and told him her version of what had been said to her. Fowley then left and worked until noontime when he returned to the solarium to watch the news on television. Another employee, Marie Pollard came in and greeted him. He told her not to talk to him and directed an ob- scene remark to her. She did not appear upset, but re- plied that her "old man" called her that all the time. She reported to Sibulkin, however, that she was extremely distraught. Fowley next walked over to a table where Shanley was sitting with Elizabeth Giguere, banged his elbows down on the table, and asked Giguere if Dick (one of the firemen at the Home) knew she had "shacked up" with Fowley those two times. Giguere became very upset and left the solarium. She looked for Sibulkin but could not find him, so she went downstairs to the laundry, weep- ing, for a while. She later came back upstairs and told Sibulkin that Fowley had said something very insulting about her personal life. She would not tell Sibulkin what Fowley had said, and even at the hearing, when asked what it was, she was obviously and sincerely distressed. I found Giguere to be an entirely credible witness and I do not credit Fowley's denial that he slammed his elbows down on the table, although the stories agree in other particulars. Shortly after this, Fowley left the Home for the day. Sibulkin testified that he came into the Home about 10:30 on the morning of May 18. He was approached by Ehrlich who proceeded to tell him about his encounters with Fowley on the telephone and in person, adding that Fowley appeared unstable. Shanley was the next person to come in to see Sibulkin, giving her version of her ex- change with Fowley. Marie Polland was the next one to report on Fowley's conduct, although Sibulkin quoted her as saying that Fowley had referred to her in obscene terms on two, not one, occasions and, despite her appar- ent calm when she was talking to Fowley, Sibulkin testi- fied that she was extrely distraught when she talked to him. Finally, Giguere came in to see Sibulkin and report- ed what had happened between Fowley and herself. Si- bulkin's recollection of this conversation is consistent with the facts related by Giguere. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After his interview with Giguere, Sibulkin tried to find Fowley, but he had already left for the day. At this point it was about 1:30 in the afternoon, and Sibulkin decided on the basis of the reports he had received from Ehrlich, Shanley, Pollard, and Giguere, as well as a report from someone on the remark Fowley had made to Marie Petit, to discharge Fowley. The General Counsel asks that I find, in all the cir- cumstances of this case, that Respondent through Sibul- kin seized upon and magnified these incidents as a pre- text to get rid of Fowley, one of the chief union adher- ents. In support of this position the General Counsel points to the length and quality of Fowley's service to Respondent; his union activities and his "disappoint- ment" at the loss of the election; the fact that those who reported Fowley's behavior were antiunion; the fact that Sibulkin fired Fowley without getting his side of the story; the fact that Fowley, in an interview with Sibulkin on the day after he was fired, was not told what he was alleged to have said and to whom; the fact that other employees engaged in conduct "far worse" than Fow- ley's and were not discharged; and, of course, the fact that Sibulkin harbored animus against the Union and had previously changed Fowley's schedule and curtailed his overtime in retaliation for his union activities. I certainly agree, and my findings show, that Sibulkin was hostile to the organizational activities of his employ- ees, and that he manifested that hostility in several in- stances involving Baker, Nishan, and Fowley himself. I further think that Sibulkin may have had a hand in the discharge of Girard, as he certainly did in Shea's situa- tion. In regard to Fowley's discharge, however, the situ- ation is quite different. Where in Girard's case there was no credible evidence of misconduct over the August 25- 26 weekend which would furnish grounds for discharge, in Fowley's situation the evidence is clear and almost un- disputed that Fowley came into the nursing home raging, and struck out with obscene, cutting, and insulting phrases at those he thought had had a hand in defeating the Union. With respect to the language used, the General Coun- sel certainly has shown that crude and obscene language was no stranger to those halls, and that the level of dis- course was almost uniformly low. I can take no issue with that, or attempt to impose different standards on these employees. But even in such an atmosphere there is a distinction between the casual or even jocular use of such words, and their use as fighting words, directed in anger to wound and to hurt. It is this aspect of Fowley's conduct rather than the words themselves which differs significantly from the examples cited by the General Counsel. With regard to the cases of Simonelli and Keough, cited by the General Counsel to show disparate treat- ment, there is no evidence showing that the conduct of these employees, who were reprimanded and not dis- charged, approached the level of intensity reached by Fowley. The facts in Shea's case, and the fight involving two nurses aides in May 1979 certainly are not compara- ble to Fowley's conduct. The one case which did ap- proach, and, indeed, exceeded Fowley's conduct, also re- sulted in immediate discharge. This last case is the only one I feel is comparable and in it the results were the same. The other grounds cited by the General Counsel to support her position, the fact that Fowley was a respect- ed, long service employee and the fact that he was not allowed to face his accusers, are in my view irrelevant. Accordingly, I find that Fowley was discharged be- cause of his disruptive and offensive behavior on May 18, and not because of his union activities. This discharge did not constitute a violation of Section 8(a)(1) and (3) of the Act. Bogart Sportswear Mfg. Co., Inc., 196 NLRB 189 (1972). 6. The Alleged Violations of Section 8(a)(4) The complaint alleged that certain actions taken against Karen Baker on March 15 and against Robert Shea and Francis Fowley on April 1, 1979, were taken against them because they had filed charges or given tes- timony under the Act, in violation of Section 8(a)(4) of the Act. The record shows that there is no evidence whatso- ever which could lead me to this conclusion. The only thing in the record in which I can discern any connec- tion between the actions of Respondent and the filing of charges is in the actions of payroll clerk Rita Hill in issu- ing change of status forms in May and June 1979 after charges had been filed alleging that the change of status given Baker in January was a violation of law. This does not furnish grounds for a finding of an 8(a)(4) violation relating to Baker, much less the others. I will recom- mend that these allegations of the complaint be dis- missed. IV. REPORT ON CHAI.I.ENGED BALLOTS The record shows that the tally of ballots in Case 1- RC-16263 resulted in six votes for the Union (Petition- er), five against the Petitioner, and two challenges. The challenged ballots were cast by Rita McMenamy and Ann Sansoucy. In its Order dated August 22, 1979, the Board directed me to prepare and serve on the parties a report containing resolutions of the credibility of wit- nesses, findings of fact, and recommendations to the Board as to the disposition of these challenges. A. Ann Sansoucy On April 18, 1979, the Employer, Clark Manor Nurs- ing Home Corp., and the petitioning Union, Professional and Health Care Division, Local 1445, Retail Clerks In- ternational Union, AFL-CI0,3 6 entered into a Stipula- tion for Certification Upon Consent Election in Case 1- RC-16263. The stipulation provided for an appropriate bargaining unit described as follows: All technical employees including licensed practical nurses, physical therapist assistant and activity di- rector but excluding all other employees, registered nurses, business office clericals, professional em- 3The name of the International Union was changed to United Food and Commercial Workers International Union. AFL-CIO. 476 CLARK MANOR NURSING HOME CORP. ployees, guards and supervisors as defined in the Act. Ann Sansoucy testified that she is the activity director at the nursing home. Her vote was challenged by the Union on the ground that she was a supervisor. Howev- er, counsel for the Union argued at the hearing, and in his brief, that she could be challenged, and a decision as to her status could be made, on grounds other than that stated at the time of the election. However, in cases where the parties have stipulated to an appropriate bar- gaining unit, the stipulation will control the disposition of challenges unless it is found to be contrary to the Act or established Board policy. The Tribune Company, 190 NLRB 398 (1971). Where the language of the stipulation is clear and unambiguous, the clear meaning of the stipu- lation governs. White Cloud Products. Inc., 214 NLRB 516 (1974). Thus I will consider the Union's argument with respect to Sansoucy's supervisory siatus, or her po- sition as a professional employee, but not the argument that she has no community of interest with the other em- ployees in this technical unit. To that extent the Union is bound by its own stipulation. Sansoucy testified that she organizes activities for the patients at the Home, and that she has been so engaged for 6 years. It is clear from Sansoucy's testimony that she has very little freedom of action in arranging activi- ties. All proposed activities must be cleared with Sibul- kin, or in his absence McPartland. Sansoucy has no budget for her operation, but when she needs craft sup- plies she writes out a list, then has it approved, and gets the money from Sibulkin. Once the activities have been approved, however, Sansoucy apparently is free from minute-to-minute guidance in actually directing these ac- tivities. In this she is assisted by another employee, Clouatre. Clouatre succeeded another employee who was dis- charged for not working enough hours.37 The evidence is not clear whether Sansoucy made any recommenda- tion on the termination of this former employee. San- soucy stated that Sibulkin knew the person was not working enough hours, and he had put warning slips in her pay envelope "several times," but she did admit that she had discussed this person's performance, twice, with Sibulkin. With regard to the hiring of Clouatre, San- soucy testified that after the other employee was termi- nated she knew that the Home was required to have two employees in the activities department, and she knew Clouatre, who had worked as a nurses aide but had been injured and had not worked for a while. When she came back Sansoucy "thought I'd like to have her work for me because she was a nice person." Sansoucy further tes- tified that "everybody" agreed that Clouatre would "be a good partner for me," and that thereafter she suggested to Sibulkin that Clouatre fill the position. Sansoucy im- pressed me as a gentle and easygoing person, and her tes- timony with regard to her relations with Clouatre seemed to say that she and Clouatre were more asso- ciates, or partners, than supervisor and employee. Cer- tainly Sansoucy had no authority to grant time off, or to .7 Apparently there i a state lass or regulation requiring that there he two people in this department recommend pay increases. Sansoucy likewise said that she had never given reports to Sibulkin about Clouatre's work, but then pointed out that she had had no reason to do that. However, in response to my questions, Sansoucy did say that she directed Clouatre's work on a day-to- day basis and that she made the decisions as to what Clouatre was going to do. Both Clouatre and Sansoucy perform their work in street clothes, and both punch the timeclock. Sansoucy attends monthly meetings with supervisors, physicians, and other nonunit employees. Those meetings are not management meetings, but are designed to help work out programs, including activities for patients. At the time of the election Sansoucy received $4.40 per hour, and Clouatre, $3.10. In these circumstances I find that Sansoucy, in spite of her diffident attitude, did discuss and make recommenda- tions to Sibulkin with respect to the former employee who was discharged, as well as in the hire of Clouatre. s She has the authority, although it has not been exercised, to report on Clouatre's work. Otherwise Sibulkin would have no way of knowing whether that work was satis- factory. and the fact that Clouatre and Sansoucy work well together should not obscure the fact that Sansoucy is in charge of the day-to-day activities of the other. Fi- nally, since the evidence shows that the people in the ac- tivities department must, on their own, implement the programs approved by Sibulkin, it is clear that the au- thority exercised by Sansoucy over Clouatre must of ne- cessity be more than routine and ministerial, showing that Sansoucy responsibly directs Clouatre's work on a daily basis. On these grounds, then, I recommend to the Board that it find Sansoucy to be a supervisor within the mean- ing of Section 2(11) of the Act, and that the challenge to her ballot be sustained. Cartwright Hardware Co., 22q NI.RB 781, (1977).:'9 B. Rita McMenamy Supervisors of nurses in nursing homes must be regis- tered nurses. The record shows that at the end of De- cember 1978 a registered nurse named Lorna LaTulippe, who was supervisor of the 11 p.m. to 7 a.m. shift at the home, resigned. At this time McPartland took over the scheduling of employees for that shift, but during the period between the time LaTulippe left and the election on May 27, 1979, there was no registered nurse in charge of that shift. The credible evidence, based on the testi- mony of Linda Nishan and Karen Baker, shows that with the exception of the advance scheduling, which was done by McPartland, all of the functions previously per- formed by LaTulippe were performed by a licensed practical nurse named Rita McMenamy. McMenamy did all of the paperwork for the shift, made changes in : i Her lestilnony on this point, while inpreclse, allows the nference. which I Imaike, thai Sansoucy did recommend Cloualre's hlre, and Sibidl- kin foll, st id that recommendaton :1 Hiaving made this inding I find it unneccssary to rule on the Ullion 's contention that Sansoucy was a professional emplio ,e slthin he nmcaning of Sec 2( 12) of the Act It is evident In an11 aseC that he idoes not fit into that statlitor category. having completed ins ;til assoclalte' degree ild (,-rkinig primnarily sith crafts aind ocial nctions 477 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schedules, approved swapping of the schedules, trained new employees, and on one occasion sent an employee home who had been drinking and reported the incident to McPartland, which resulted in the discharge of the employee and her charge nurse. There is no dispute about the fact that there was no other supervision on that shift for four or five LPNs and eight aides sched- uled to work during those hours. Karen Baker testified, credibly, that she had a dis- agreement with McMenamy, and went to see McPart- land concerning it. Baker stated that McPartland told her that McMenamy was in charge of the shift and that her word was law. McPartland did not recall saying that, but did say that McMenamy was "a long term employee who did try to keep things together." McMenamy herself did not testify but the undisputed facts recited above show that she acted in a supervisory capacity until at least the date of the election on May 17, 1979.40 In that period there is no dispute that McMen- amy was the only person directing the day-to-day activi- ties of the people on that shift, including the recommen- dation of discipline, assignments, shifts, or swaps of as- signments. National Living Centers, Inc., d/b/a Autumn Leaf Lodge, 193 NLRB 638 (1971). I therefore find that at the time of the election herein on May 17, 1979, McMenamy was a supervisor within the meaning of Section 2(11) of the Act, and I recom- mend that the Board sustain the challenge to her ballot. V. REPORT ON OBJECTIONS It may or may not be coincidental, but it is curious that, of all the incidents which make up this case, only four occurred during the period between the filing of the petitions in Cases -RC-16262 and 1-RC-16263 on March 26, 1979, and the election on May 17, 1979, and, of these four, only two were made the subject matter of the Objections to Conduct Affecting the Results of the Election, filed on May 22, 1979. Thus only these two in- stances of objectionable conduct may be considered in this report. Goodyear Tire and Rubber Company, 138 NLRB 453 (1962). However I have found the interroga- tion of Susan Vachon in the kitchen of the nursing home on March 31, 1979, to be a violation of Section 8(a)(l), and I have found the changes in the schedules of Karen Baker and Ruth Burke on April 1, 1979, to be violative of Section 8(a)(l). I find that this conduct interfered with the conditions established with the Board as necessary to guarantee the free choice of employees in these elections. Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962); Associated Mills, Inc., 190 NLRB 113 (1971). Since I have previously recommended that the chal- lenges to the ballots of Ann Sansoucy and Rita McMen- amy be sustained, it appears from the tally of ballots in Case -RC-16263 that the Union has gained a majority of the valid votes cast. I therefore recommend to the Board that that case be severed from this proceeding, and that the Union be certified as the collective-bargain- 40 McPartland testified that during this period she arranged for the presence of registered nurses from temporary employment agencies on the 11 p.m. to 7 a.m. shift in order to comply with state regulations, but admitted that McMenamy did the paperwork, discussed problems with McPartland, and "started to assume responsibility." ing representative in the appropriate unit stipulated by the parties, adding, however, to the exclusions from that unit the activity director. With respect to Case -CA-16262, I recommend that the election be set aside and a new election ordered. VI. THE REMEDY Having found that Respondent has violated Section 8(a)(l) and (3) of the Act: A. I shall recommend that it cease and desist there- from and that it take certain affirmative action designed to effectuate the policies of the Act. Specifically I shall recommend that Respondent: 1. Remove from the files of Karen Baker, Linda Nishan, Ann Stinchfield, and Paul Girard all warning no- tices and all references to such notices issued to them in the period from November 15, 1978, to August 27, 1979. 2. Remove from the file of Linda Nishan the personnel change form noting that she is a "union organizer" and recommending that she not be reemployed, together with all references to that form in Respondent's files. 3. Revise its personnel policies and any posted rules to eliminate unlawful restrictions on access to the premises by off-duty employees, and solicitation in nonwork areas on nonworking time. 4. Rescind the change of status form given to Karen Baker on January 18, 1979, and restore her to full-time status, together with any benefits she may have lost as a result of this discrimination. 5. Restore Karen Baker and Ruth Burke to the sched- ule under which they were working prior to April 1, 1979. 6. Offer to Robert Shea and Paul Girard immediate re- instatement to their former positions, or, if those posi- tions are no longer available, to substantially equivalent positions, with no loss of seniority or other benefits, and make them whole for the discrimination suffered by them by the payment to them of backpay together with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (197 7 ).4' 7. Pay to Francis Fowley any money due him because of Respondent's refusal to allow him to work on Thanks- giving and Christmas Day 1978 and New Year's Day 1979 together with interest thereon. B. The General Counsel has requested that I order that Respondent pay for legal fees and expenses incurred by Karen Baker and Linda Nishan in defense of the com- plaint brought against them by Respondent in the Worcester District Court. However, no evidence was in- troduced that they incurred any fees or expenses on this account. Indeed, it is probable that they were defended by the Union's counsel, and that any expenses they in- curred were borne by the Union. There is no request that the Union be reimbursed so I will not grant this re- quest of the General Counsel. C. The General Counsel has also requested that I order that Respondent petition the city of Worcestor police department, and the Worcester District Court to 4" Sec, gener.ally, Isi Plumbing &t Ifeating Co., 138 NLRB 716 (1962). 478 CLARK MANOR NURSING HOME CORP. expunge from the records of those bodies references to the arrest and trial of Nishan and Baker. 42 No authority was cited as to my authority to do this, or what effect such petitions would have under city ordinance or police department or state law, but I do think the request is ap- propriate, for whatever effect it may have. I will there- fore order Respondent to prepare petitions to the police department of the city of Worcester, and to the appro- priate Worcester District Court asking that the records of the proceedings before these bodies involving the complaints by Respondent against them in November 1978 be expunged from their records. D. The General Counsel has also asked that I issue a broad remedial order against Respondent. I have consid- ered this case in the light of the standards set out in Hickmot Foods, Inc., 242 NLRB 1357 (1979), and I con- clude that a broad order is inappropriate, as I do not be- lieve that Respondent has demonstrated such a proclivity to violate the Act, nor has engaged in such egregious or widespread misconduct as to demonstrate a general dis- regard for the employees' fundamental statutory rights. CONCLUSIONS o01 LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mcan- ing of Section 2(5) of the Act. 42 The actual request was to "join in a petion" hill there i no idllcit- lion as to who else is to join. 3. By maintaining overly broad no-solicitation and no- access rules, Respondent has violated Section 8(a)(1) of the Act. 4. By threatening to call the police, by calling the police, and by causing employees to be arrested, while they were engaged in protected concerted activities, Re- spondent has violated Section 8(a)(1) of the Act. 5. By creating the impression that its employees' union activities were under surveillance, Respondent has violat- ed Section 8(a)(l) of the Act. 6. By interrogating its employees about their union ac- tivities, Respondent has violated Section 8(a)(1) of the Act. 7. By issuing warnings to employees because they en- gaged in union activities, Respondent has violated Sec- tion 8(a)(1) and (3) of the Act. 8. By changing the status of an employee, by changing the hours of an employee, and by changing the shift schedules of employees, Respondent has violated Section 8(a)(l) and (3) of the Act. 9. By discharging its employee Paul Girard and by im- posing unlawfill conditions on its employee Robert Shea to allow him to return to his job, Respondent has violat- ed Section 8(a)(3) of the Act. 10. By depriving its employee Francis Fowley of holi- day work, Respondent has violated Section 8(a)(l) and (3) of the Act. II11. Respondent has not violated the Act in any other manner. [Recommended Order omitted from publication.] 479