Pacific Convalescent Hospital

PACIFIC CONVALESCENT HOSPITAL Coastal Care Centers, d/b/a Pacific Convalescent Hospital and Butchers' Union Local No. 516, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case 20-CA-11463 May 9, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 4, 1977, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The General Counsel contends that Respondent unlawfully interrogated an employee about union activities. The testimony with respect thereto is uncontradicted. In February 1976 Lawrence DeBeni, Respondent's president, told Patricia Ross, a 6-year employee at Pacific Convalescent Hospital, that he wanted to talk to her. Upon entering a patient tub room where they were alone, DeBeni asked Ross if she had heard any union talk in the hospital. She said she had not. He asked her if she would tell him, without giving names, if she heard any such talk, and she said she would. The Administrative Law Judge concluded that the interrogation was not unlawful because it was isolated and remote in time and substance from the April 27 discharges at Pacific Convalescent Hospital. However, the record shows that the interrogation was related to organizational activities at another of Respondent's hospitals. DeBeni testified that in the early part of 1976 a union election was held at Granada Hospital, another facility operated by Respondent. In addition, during the interrogation of Ross, DeBeni told her about union problems he was having at Granada. The interrogation, therefore, was not casual or isolated, but related to Respondent's "union problems." For these reasons, we find that Respondent violated Section 8(a)(l) of the Act by interrogating employee Patricia Ross about union activities and whether they were taking place at Pacific Convalescent Hospital.2 We shall accordingly 229 NLRB No. 81 amend the recommended Order and the notice to employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below, and hereby orders that the Respon- dent, Coastal Care Centers, d/b/a Pacific Convales- cent Hospital, Eureka, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Reletter paragraph l(b) to l(c) and add the following as paragraph l(b): "(b) Unlawfully interrogating employees about union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. I The 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.Ak 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Jenkins agrees that the Administrative Law Judge erred in concluding that the February 1976 interrogation was not violative of Sec. 8(aX l) of the Act. However, in Member Jenkins' view, the record evidence of DeBeni's interrogation of Ross, of itself and standing alone, constitutes sufficient basis for finding a violation of Sec. 8(aXl) as alleged in the complaint. Cf. P. B. and S. Chemical Company. 224 NLRB I (1976) (sec. C, Dunn's interrogations). Hence, Member Jenkins regards as unnecessary his colleagues' further analysis of this incident in terms of whether or not it was a "casual or isolated" episode. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, or otherwise disci- pline, any employees for engaging in concerted activity under Section 7 of the National Labor Relations Act. WE WILL NOT unlawfully interrogate employees about union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL make Patricia Ross, Peggy Torma, Janice Downs, Nancy Legate, Marilyn Mardock, and Lorraine Farr whole for any loss of pay suffered by them by reason of their unlawful discharges on April 27, 1976. 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD COASTAL CARE CENTERS, D/B/A PACIFIC CONVALESCENT HOSPITAL DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on May 14, 1976, as amended on June 28, 1976, by Butchers' Union Local No. 516, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, hereinafter referred to as the Union, the complaint herein was issued on July 8, 1976. Said complaint alleges that Coastal Care Centers, d/b/a Pacific Convalescent Hospital, hereinafter referred to as Respon- dent, violated Section 8(a)(1) of the Act by unlawfully discharging six employees, on or about April 27, 1976, and by unlawfully interrogating an employee on an "unknown date in February, 1976." Respondent, by its answer, denies that it violated the Act as alleged. Pursuant to notice, a hearing was held in Eureka, California, on October 21 and 22, 1976, before me, duly designated as the Administrative Law Judge. Appearances were entered on behalf of the General Counsel and Respondent and briefs were timely filed by said parties on November 26, 1976, which have been carefully considered. Based upon the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT At all times material herein, Respondent, a California corporation, has been engaged in the operation of proprie- tary convalescent care hospitals at facilities in Eureka, California. During the past year, Respondent, in the course and conduct of its business operations, had gross receipts in excess of $250,000, received in excess of $70,000 from the Medi-Cal and Medi-Care insurance programs, and purchased and received goods valued in excess of $50,000 from outside the State of California. As is admitted by Respondent, it is, and at all times material herein has been, an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. It appears that the Union is "involved" in this case only insofar as it filed the charge and amended charge herein.' There is some reference in the testimony to an official of the Union having been consulted for advice, but it is of no materiality in the resolution of the issues herein. I The original charge alleged 8(aX3) and (5) violations, but the reference to said section was deleted in the amended charge, as well as a reference to union activities. 2 Although one was classified as a "treatment nurse." that distinction III. THE UNFAIR LABOR PRACTICES Respondent admits the following allegations: that Law- rence DeBeni is president of Respondent, Cleatus Weller is administrator, Rosalie Jahnke is director of nurses, and Linda McCulley is a charge nurse. It is noted that Respondent operates three convalescent hospitals in Eureka, that the only facility involved herein is the Pacific Convalescent Hospital, hereinafter referred to as Pacific, and that the latter two above-named persons are employed only at Pacific (as well as the alleged discriminatees). It is further noted that Respondent admits that the first three named persons are agents within the meaning of Section 2(13) of the Act and supervisors within the meaning of Section 2(11), but denies that McCulley is either an agent or supervisor. The issue of McCulley's status, particularly with reference to her authority to give nurses aides permission to leave the Hospital, is a factor in the defense raised by Respondent. The principal issue is whether or not Respondent discharged six nurses aides 2 working at Pacific for engaging in concerted protected activity in violation of Section 8(a)(1) of the Act. It is undisputed that all of said nurses aides were, during the time material herein, employed on the day shift (from 7 a.m. to 3 p.m.). It is also undisputed that the normal complement on the day shift consisted of a charge nurse, one treatment nurse, and seven nurses aides. As to the issue of McCulley's status, DeBeni testified as follows: Q. Mr. DeBeni, turning your attention to a differ- ent area for a moment. Concerning the authority of charge nurses, isn't it a fact that the charge nurse has the authority to hire, fire and discipline employees? A. Under certain circumstances. Limited, yes, but under certain circumstances. Q. All right, fine. Do they write warning slips? A. Yes, they do. Q. I am speaking of charge nurses. A. I realize that. Q. All right. And do they also prepare written evaluations of employees? A. They participate in the evaluations, yes. Q. Okay. Isn't it a fact that they prepare the initial evaluation of aids? A. The initial? Yes, that's true. McCulley, who was called as a witness by Respondent, testified that, as charge nurse, she had3 the authority to grant nurses aides "permission to leave the building," if the director of nurses was "gone." She further testified, on cross-examination, however, that on occasion she has given such permission when the director of nurses was present, that she had limited authority to send a nurses aide home (only for certain reasons such as "mistreating" patients), but later she testified that she was told that she had the authority to send a nurses aide home if her work was not appears to be of no importance and, for the purposes of convenience, all are referred to herein as nurses aides. I She was no longer employed by Respondent at the time of the hearing. 508 PACIFIC CONVALESCENT HOSPITAL satisfactory, apparently even though the director of nurses was present. Peggy Torma, one of the alleged discriminatees, credibly testified as follows: Q. Let me ask you this: Is it a general rule at the hospital that you are not to leave the grounds? A. Yes. Q. Is there an exception for that? A. If we ask the charge nurse. Q. And have you previously asked the charge nurse? A. Often. Q. And have you previously been granted permis- sion? A. She often sent me herself to the store to pick things up for her. Nancy Legate, another alleged discriminatee, credibly testified that aides "frequently" asked McCulley for permission to leave the building, that "she would grant it," and "that that was part of her power." Patricia Ross, another alleged discriminatee, credibly testified that she has asked McCulley "several times, and several of the other charge nurses" for permission to leave the "premises" and that they always granted permission. Based upon the above testimony, it is found that McCulley, as a charge nurse, was a supervisor within the meaning of the Act and that she exercised the authority of granting permission to leave the premises. It is undisputed that on April 27, 1976, there were two nurses aides missing from the normal complement on the day shift and that during the preceding weeks said shift was more than occasionally manned by less than the normal complement. It appears that, sometime prior to 9 a.m. on April 27, several of the nurses aides complained to each other about the burden of working short-handed in order to care for the patients properly. It further appears from Jahnke's credited testimony that she arrived at the Hospital about 8:30 a.m., that she came in early because of a report of an accident to an employee on the previous shift, that she was immediately informed by Peggy Torma that the nursing staff was short-handed, 4 and that shortly thereafter she was approached by two nurses aides who made a similar report. According to Jahnke's testimony, she responded, "I am not really sympathetic. You have done this to me, too, but I will go and see Linda [McCulley] and see what she's done, who she's called and we will get someone." Ross, who was one of the two nurses aides who talked to Jahnke, testified that Jahnke "said there was nothing she could do," that she could not get anyone to come in, that Jahnke gave her a name to call, but the person she called said she was unable to come in because of a dental appointment. It appears that about 9 a.m., approximately the time the nurses aides were given a 15-minute "coffee break," all six met in the lounge and decided that the only way they might be able to accomplish anything to rectify the problem of being short-handed was to confront DeBeni or Weller in a 4 While on the one hand Jahnke, who was called as a witness by Respondent, testified this was the first time she knew of that fact, McCulley. who was also called by Respondent, testified that she called Jahnke at her group and that they would all go together to see if they could find one or the other at the Granada (another of Respondent's hospitals approximately a mile away). Ross testified that she and Marilyn Mardock went to see McCulley and that Mardock "did the speaking." Ross testified as follows to the conversation between Mardock and McCulley: A. She says, "We are going to find Mr. DeBeni and Mr. Weller. I prefer to find Mr. DeBeni. We are going to go find them and we are going to go talk to them and tell them our problem." * * Q. And what did Mrs. McCulley say in response, if anything, can you recall? A. She, at that time, was giving a pill to a patient, and she said, "Go, go do it. Just go do it." She was upset herself at that time. Q. I see. Was she upset at you? A. No. Torma testified as follows: A. Yes. When I went up to the nurses station to get my purse, I overheard Pat Ross and Marilyn Mardock talking to Mrs. McCulley, and they were telling her that we were leaving during our coffee break to look for Mr. Weller and Mr. DeBeni, and she said, Sure, go." McCulley testified as follows: I walked by one of the aids in the hall and they were all upset because they were short-handed and we tried, we were trying to get someone to come in, and I said, "How are you doing?", and she says, "We are all leaving," and I said, "Okay, good-by." I didn't give her any direct authority to go, and when they did leave, Mrs. Jahnke was there, so I had no authority to tell them to go to begin with. I did not take this statement seriously when it was put to me like that. Q. (By Mr. Jordan) Did they indicate to you that they were all going to leave the building? A. Yes, and I could not- JUDGE GILBERT: Did they tell you why? THE WITNESS: I knew why, because we were short- handed. Ross and Torma were more convincing witnesses and their testimony is credited. It is inferred from the testimony (as to the conversation with McCulley about leaving the premises) that the nurses aides reasonably understood that they were given permission by McCulley to leave the hospital to find DeBeni or Weller. The six aides proceeded immediately to the parking lot and got into two automobiles. According to Torma, McCulley followed them to the parking lot. Torma's testimony as to what then followed is as follows: home and that she said she would come in early and see if she could find someone to come in (to fill out the shift). Jahnke was a more convincing witness than McCulley and her testimony is credited. 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She [McCulley] came to the back ramp and she said, "How long are you going to be gone?", and we said just ten or 15 minutes during our coffee break, and she said, "I am going to start peri-care on room I", and we said that we would be back in ten minutes, and she said "fine." She told us to go. Nancy Legate testified that as she was getting into Ross' car, McCulley came to the ramp and said "Go. I am going to start doing peri-care 5 on Section 1." Ross testified that she saw McCulley on the ramp, that she talked to one of the aides but that she did not hear what was said. McCulley testified as follows: JUDGE GILBERT: Well, let me ask you this: When they said something about they were all leaving, did they tell you where they were going or why they were going? THE WITNESS: Not then, a little bit later another one of the girls came up to get her handbag out of the cubbard [sic] where she kept it and I said, "Are you really leaving?", and she said yes, and it upset me because I felt the patients didn't deserve to be treated this way. I said, "Anybody that leaves should be replaced," and I am sure she told the others. I can't say that, okay. They were aware that I was not in favor of it, because I would have gone with them if I was, because I wasn't in favor of working shorthanded either. JUDGE GILBERT: That still didn't answer my ques- tion. Did they tell you why they were leaving or where they were going? THE WITNESS: Okay. After Mrs. Jahnke had gotten there and all of this was in progress, all of this was going on, I went there and I told her, "Has anybody told you that the aids are leaving? I wonder where they are going and when they will be back. Let me go ask them," and I walked out to the back porch of the facility and I said, "Where are you going? Are you coming back? What's going on?" They said, "We are going to go and talk to Mr. DeBeni and Mr. Weller, and we might be back." I looked at my watch and said, "I am going to clock you out at 9 o'clock." I couldn't say go ahead, we will pay you while you are going, because I didn't have the authority. I just wanted to know where I stood with the crew, if I had one or if I was going to have to do it all myself. McCulley was not a convincing witness. 6 Not only was a portion of her testimony contradicted by Jahnke, as previously noted,7 but also her above-quoted testimony as to her conversation with Jahnke, for Jahnke credibly testified that the first word she had of the aides leaving the building was when McCulley reported that "the aides have left." Jahnke further testified that she (McCulley) then said, "If you will pass medication, I will start doing patient care," and that they started down the hall to get to work. 5 A partial "sponging off' process on a patient. 3 It is noted that there is no evidence that she "clocked out" the aides as she claimed she threatened to do. 7 See fn. 4. Consequently, the testimony of Torma and Legate as to what McCulley said on the parking lot is credited. According to the credited testimony of Torma, Legate and Ross, the aides proceeded directly to Granada Hospital (located less than a mile away) and, not seeing DeBeni's or Weller's car in the parking lot, they drove directly to Ross' babysitter's house which was located a few blocks from Granada; they did this because they did not feel they had time to go to Seaview Convalescent Hospital, the third hospital owned by Respondent located in Eureka, but some 10 miles distant; upon arrival at the babysitter's house, Ross phoned both Granada and Seaview and was immediately informed that neither Weller nor DeBeni was present; and Ross then called Pacific and spoke to Jahnke telling her they were coming right back and requested that she try to have either Weller or DeBeni present to talk with them. Jahnke testified that she understood the presence of DeBeni or Weller was a request and that she didn't "weigh it" (as to whether it was a refusal to return unless a meeting was arranged with Weller or DeBeni). The aides thereupon immediately left the babysitter's house and returned to Pacific, and it is inferred from credited testimony and the distances traveled, they were away not more than 15 or 20 minutes. McCulley testified that she talked to Ross and then transferred her call to Jahnke, and that Ross, in speaking with her (McCulley), in effect, conditioned the aides' return upon a meeting being arranged with DeBeni or Weller. However, in view of my opinion of McCulley as an unreliable witness and of Jahnke's testimony that she understood Ross' mention of a meeting with the manage- ment officials to be a request, I do not credit this phase of McCulley's testimony. It appears from the credited testimony of Torma, Legate, and Ross that, upon the return of the six aides to the Hospital, they headed toward the patients' area, but were told by McCulley not to go to the patients but to report to Jahnke's office. McCulley credibly testified (without contradiction) that she was previously instructed by Jahnke "not to let them [the aids] go on the floor," but to "send them to her office." It is inferred from the above-credited testimony that the aides had intended to go back to work on their return to the Hospital, but were ordered not to do so. 8 It appears that about 5 minutes after the aides assembled in Jahnke's office, DeBeni and Weller appeared. Torma, Legate, Ross, and DeBeni testified as to what then ensued. Weller was not called as a witness. Torma testified as follows: Mr. DeBeni said they wanted to know what the Hell we were doing, and I believe it was Pat that said, "Mr. DeBeni, we were just looking for help for our people," and Marilyn said "We would just like some help for our people," again, the same thing. Mr. DeBeni said, "If that's your attitude, get out." Q. Did Miss Ross remain in the office during the course of the discussion? s As set forth hereinbelow, this inference is considered as a factor in determining whether the aides had, in leaving the Hospital, engaged in a "strike or concerted refusal to work," as contended by Respondent. 510 PACIFIC CONVALESCENT HOSPITAL A. No, she was called out by the intercom to go move her car. It was blocking someone in the parking lot. Q. Can you tell me if during the course of this interview, if anything was discussed with Mr. DeBeni with respect to a meeting later in the day to discuss this? A. No. Q. Was there any discussion with respect to returning to your positions-discussion with Mr. DeBeni? A. He told us to get out. Q. Can you tell us whether or not you have ever refused to work? A. No, I wouldn't do that. Q. I see. After you were told to get out, did you leave? A. Yes. Q. And did you have any further occasion to speak to anyone upon your leaving the Hospital? A. As we were going down the hallway, Mr. DeBeni came by us again and shouted "get out, get out," and Pat was coming back and she said, "Hey, Mr. D., we just want to talk to you," and he raised his hand as though to strike her and said "Get out," and so we did. Q. Did he request that you attend to the patients that were in need of care at the time? A. No, he did not. * * Q. (By Mr. Jordan) Did Mr. DeBeni ever ask that you girls return to work? A. No. JUDGE GILBERT: I assume you mean that day. Q. (By Mr. Jordan) That day. A. No. Ross testified as follows: . . . Mr. DeBeni says, "All right, what's going on?" And then I says, "Well, we have a problem. We are understaffed, overworked, we can't get it done." And just about then they paged me to go move my car and I did. Q. I see. So you were not there for the remainder of the conversation? A. No. Ross further testified as to her conversation with DeBeni when she returned to the Hospital after moving her car, as follows: Legate testified as follows: They said, "Girls, what's going on?" I believe it was Pat Ross that said, "Mr. DeBeni, we wanted to talk to you. We are understaffed." And then I believe Mr. Weller said, "What are you going to gain by this, girls?" And Marilyn Mardock, she had said, "We are trying to help the patients, and we all wanted to talk to you." And then Mr. DeBeni said - he raised his voice and he said, "Get out of here," and then he left. Q. I see. Had Miss Ross left by that time? A. Yes, she had left before this. Q. I see. Now, why did she leave? Do you know? A. They called her on the intercom-something about her car. She had to move it. She further testified as to what occurred when she and the other four aides were in the corridor on their way out of the Hospital as follows: Yes. We were going out. We were just about to go out of the door and Pat Ross had an encounter with Mr. DeBeni. Pat said to Mr. DeBeni, "Mr. D., we want to talk to you." Mr. DeBeni raised his hand and he said, "Get out of here." Upon cross-examination she testified as follows with regard to the meeting in Jahnke's office: Q. (By Mr. Jordan) During this time, did Mr. DeBeni offer to meet with you another time during the day? A. No, he did not. Yes. I walked up to him and I says, "What's going on?" And Mr. DeBeni says I didn't care about the patients and I said that's not true. I said we were just trying to help him, to help ourselves to help the patients. He said, "You don't care about the patients." He raised his hand like this and said get out, and I ducked and left. Q. When you say raised his hand- A. Well, it was up like this. MR. DVORIN: Let the record show that the witness is raising her hand above her head, palm open, as if possibly in a striking motion. JUDGE GILBERT: No, I would not describe it as a striking motion. MR. DVORIN: A raised hand motion. JUDGE GILBERT: A raised hand motion. Raised her hand over her head. MR. DvoRIN: Fine. Q. (By Mr. Dvorin) And what did Mr. DeBeni say? A. He said for me to get out. Q. Did you? A. Yes. DeBeni testified that when he entered the Hospital both McCulley and Jahnke told him "that the girls had left the building and they had just returned and gone into Mrs. Jahnke's office; that he and Weller entered the office; and that he asked the aides, "What's going on?" His testimony continues as follows: Pat Ross said, "We want to talk to you. We are having problems. We are working short." Q. And what did you respond? 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. At that precise moment, Mr. Weller interrupted the conversation and said, "Did you girls leave the building?" Q. Was there a response to Mr. Weller's inquiry? A. They responded by saying yes. Mr. Weller said, "Where did you think that was going to get you?" Q. Okay. And was there a response to that statement? A. No. Q. All right. Who spoke next? A. (No response) Q. To the best of your recollection. A. I believe that I asked what the problem was and I can't honestly tell you who answered me at that precise moment. Q. Was there like dialogue pickup then? A. Yes. There was kind of a recounting of working short, a variety of problems involving patients, the level of care, etc. Q. When you say "etc." - I understand this was a long time ago, but we are trying to get as complete a recount as we can. A. Well, the girls were going on to some length that they were working short, they had been working short on a fairly regular basis, they wanted something done about it, they were concerned about their patients, at least they were alleging that they were concerned about their patients. They wanted some resolution to the problems. Q. Did they offer a resolution to the problems at that time? A. No. Q. What was your response to all of these com- plaints or grievances? A. At that precise time, I think that's when Pat Ross got the phone call, not the phone call, but the page to remove her car. She left the room. We continued with the same discussion. I asked the girls to go back on the floor and come back at the end of the day, I would be there at 3 o'clock when their shift ended to pursue the matters and see if we could straighten things out. Q. All right. What was their response to that? A. They wanted them settled then. JUDGE GILBERT: What's that? THE WITNESS: They wanted them settled at that time. Q. (By Mr. Jordan) When you say "settled," Mr. DeBeni, did they give you any alternative? Did they give you a demand at this point? A. There were no alternatives or demands. They just wanted to sit there and resolve the situation and it was obvious that it was going to be a quite lengthy discussion and we weren't going to resolve anything. Q. Why did you choose to discuss it later in the afternoon rather than in the morning? A. So we could get the patients taken care of. Q. All right. At this point, in your knowledge, were there any people helping the patients at this point? A. Not at that point in time, at least not to my knowledge. Q. All right. So your solution to the problem was what? A. Get back to work and sit down at the end of the day and resolve the problems. Q. And they preferred to settle it, settle the grievance right then? A. Well, I think at that point we were kind of at an impasse. Q. What was their comment when you asked them to go back to work? A. They just continued in the comments relating to the patient care and working short. Q. All right. A. I explained to them there was nothing I could do about the fact that we were a couple of people short. It happens, and it happens more often than you care to have it happen, but there is no immediate resolution to the problem. Q. And how did they answer you? A. They kept going over the same issues. Q. All right. Did the discussion finally end at some point? A. Yes. Q. How did it end? A. Finally I said, "Well, that's it. If you are not going back to work, then you are free to go." They got up in unison, walked out the door and down the hall. Q. (By Mr. Jordan) Mr. DeBeni, did you discharge these girls that morning? A. No sir, I did not. Q. Why did you not? A. I was hopeful that they were going to go to work. We had sixty-two patients laying in their beds and I was hoping they would go back to work. Q. Mr. DeBeni, you said the young ladies just walked out of the room? A. Yes. He further testified on direct examination that he left the office to "punch out" the aides' cards, and that while he saw them leaving the building he did not say anything to them. On cross-examination he testified that when he arrived at the Hospital, he had not come to "any resolution as to the consequences of the nurses aides' action in having left the hospital." When confronted with a statement in his affidavit which read "as far as I was concerned, the aides had terminated themselves by leaving the premises prior to my arrival at the Pacific," he testified that that was his "reaction" at the time he gave the affidavit, and thus it was obviously an afterthought. It appears from his further testimony on cross-examination that he did talk to Ross. He adopted as his testimony the following statement read from his affidavit: . . . "I then left the office and went to the rear hall of the building. The girls had wandered about half way 512 PACIFIC CONVALESCENT HOSPITAL to the back door. When they saw me they quickened their steps to leave. I was going to the time cards in order to pull their cards. At that point, Pat Ross re- entered the building. She came to me and said, "Mr. DeBeni, I was just trying to help you." I said, "Pat, I don't need that kind of help. You girls have quit your jobs, please leave." At no time did I tell the aids they were fired. DeBeni denied that the testimony of Torma, Legate, and Ross (with respect to his "encounter" with Ross after leaving the office) was correct. While I credit DeBeni's testimony that there was a more extensive discussion about being short-handed than indi- cated by the testimony of Torma and Legate, I credit their testimony as to how their meeting in Jahnke's office concluded and their denials that he asked them to go back to work and discuss the problem later. They were more convincing witnesses than DeBeni on that point. I also credit the testimony of Ross, Torma, and Legate as to what occurred in the corridor. If DeBeni had told them that if they were not going to go back to work, they were free to go, it appears most unlikely he would have told Ross that "you girls have quit your jobs, please leave," in view of the fact that she had not been present when, as he claimed, he asked them to return to work and they refused to heed his request. Moreover, according to his own testimony, it appears he said nothing to the aides in the office about their having quit their jobs because they did not comply with his request to return to work, and they were more convincing witnesses. I do credit DeBeni's testimony that he did not tell the aides they were "fired." They, however, credibly testified that he told them to "go" and to "get out," that they did not know whether they were discharged or not; that they consulted an official of the Union as to their confusion; that he told them to return and find out what their status was; that they spoke to Jahnke, who told them, "as far as I'm concerned, you quit," and that when they asked Weller, he told them they were "fired." 9 As to Jahnke's answer, she was not present in the office or in the corridor when they left and, therefore, was not in any position to testify as to DeBeni's intent in ordering the aides to "go" and to "get out." Furthermore, it appears from her report on the termination action forms relating to the aides (dated April 27, 1976) that their employment was terminated, but it was predicated on her apparent assumption that they voluntarily quit because they left the premises without permission (which, of course, was prior to DeBeni's meeting with the aides). There is nothing in DeBeni's testimony which indicated that he took such a position, but rather his testimony indicates that he did not take that position. In view of the uncontradicted testimony that Weller told them they were "fired," I am of the opinion that he construed DeBeni's action at the end of the meeting to constitute a discharge and, in any event, since he was an official of Respondent, the aides reasonably understood that they had been discharged by Respondent. I Their testimony as to what Weller stated is uncontradicted. "' In view of this, no purpose would he served in order to complete my comment on the argument and to make a determination whether the six Respondent argues in its brief that the aides were not discharged. Also, Respondent in its brief argues "The aides' action in leaving their work is not conduct that is protected under Section 7 of the Act." In effect, Respon- dent's position as to the second argument appears to be two-fold, one that the means that they used (leaving the building) to present their grievance of being short-handed was unreasonable and was done without permission, in violation of the rule against leaving without permission; and, two, that their leaving the building was a walkout or concerted refusal to work by a committee constituting a labor organization which did not comply with the notice required under Section 8(g) of the Act. As to the first argument, based on the findings hereina- bove, I conclude that DeBeni's action in telling the aides to "go" or "get out" did constitute a discharge. As to the second argument, I find that the record will not support a finding that their leaving the building was the reason for the discharge and therefore no purpose would be served in determining the issue of whether or not such action made their concerted pursuance of the grievance of being short-handed unprotected. Even if it were to be assumed that it was a factor leading to their discharge, I am of the opinion that it neither constituted a refusal to work nor a violation of the rule against leaving the premises without permission. In all the circumstances, I am of the opinion that their action was not intended or could reasonably have been understood to be a withholding of their services as a protest. They did not violate the rule in view of my finding that they obtained permission to leave from a supervisor who exercised the authority to grant such permission. While it may have been poor judgment for them to leave en masse and for McCulley to grant them permission to do so, nevertheless the rule was not violated. It was made clear to McCulley, the supervisor who granted them permission, that their purpose in leaving was to find DeBeni or Weller, that they intended to return in 15 minutes and when they returned they were prevented from going back to work as they apparently intended to do. Thus their leaving cannot be construed as a refusal to work within the meaning of Section 8(g) of the Act.°1 It is my opinion, based upon the above findings and all the circumstances herein, that DeBeni, in effect, discharged the aides because he was exasperated with their pursuance of their grievance. Therefore, I conclude that General Counsel has proved by a preponderance of the evidence the allegation that on April 27, 1976, employees Patricia Ross, Peggy Torma, Janice Downs, Nancy Legate, Marilyn Mardock, and Lorraine Farr were discharged in violation of Section 8(aXI) of the Act because of their concerted protected activity in pursuing a grievance against working conditions, i.e., the lack of a normal complement on their shift. It is alleged that Respondent further violated Section 8(aX(1) of the Act by DeBeni's interrogation of Ross sometime in February 1976. Ross' testimony as to the incident is that DeBeni, as he passed by her, said he wanted to talk to her, took her into the "patient tub rooms," and aides constituted a labor organization within the meaning of Sec. 8(g) of the Act and failed to give the notice required under said section. 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked her if she had heard of any "union talk" in the Hospital to which she responded in the negative, and then he asked her if she would tell him if she did hear any such talk without giving any specific names, to which she responded, "yes." She further testified that he told her about union problems he was having at Granada Hospital. This is the only incident of interrogation in the record. There is nothing in the record to indicate there was any union activity going on at Pacific. Also, it is my opinion that the incident was too remote in substance and time, at least 2 months prior to the April 27 incident, to be considered to be related thereto. Therefore, it is concluded that this single, isolated interrogation cannot appropriately be considered unlawful within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. v. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. Although it has been found that Patricia Ross, Peggy Torma, Janice Downs, Nancy Legate, Marilyn Mardock, and Lorraine Farr were unlawfully discharged by Respon- dent on April 27, 1976, it will not be recommended that Respondent be ordered to offer them reinstatement, inasmuch as it was stipulated that they were sent valid offers of reinstatement prior to the hearing. It will be recommended, however, that Respondent be ordered to make each of them whole for any loss of pay she may have suffered between April 27, 1976, and the date she received her aforesaid offer of reinstatement in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), together with 6-percent interest thereon in accor- dance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, on April 27, 1976, unlawfully dis- charged Patricia Ross, Peggy Torma, Janice Downs, Nancy Legate, Marilyn Mardock, and Lorraine Farr in violation of Section 8(aX 1) of the Act. 4. General Counsel has failed to prove by a preponder- ance of the evidence the allegation in paragraph VI of the complaint that Respondent violated Section 8(aX)(1) of the Act by engaging in unlawful interrogation of an employee. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER t Respondent, Coastal Care Centers, d/b/a Pacific Conva- lescent Hospital, Eureka, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, or otherwise disciplining, any employee for engaging in concerted protected activity. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make Patricia Ross, Peggy Torma, Janice Downs, Nancy Legate, Marilyn Mardock, and Lorraine Farr whole for any loss of pay they may have suffered by reason of their unlawful discharge on April 27, 1976, in the manner set forth in the section hereinabove titled "The Remedy." (b) Post at its Pacific Convalescent Hospital in Eureka, California, copies of the attached notice marked "Appen- dix." 12 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent 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. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. The allegation in paragraph VI of the complaint that Respondent violated Section 8(a)(1) of the Act by engaging in unlawful interrogation of an employee should be, and is hereby, dismissed. 12 In the event that the Board's 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 514