Mead Nursing Home, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mead Nursing Home, Inc. and Service Employees' International Union, Local 227, AFL-CIO. Cases 6-CA-8670, 6-CA-8787, and 6-RC-7203' May 12, 1977 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 30, 1976, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Petitioner filed with the Board its brief that it submitted to the Administrative Law Judge in support of the Union's position with respect to the challenged ballots in Case 6-RC-7203. 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,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 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 and hereby orders that the Respondent, Mead Nursing Home, Inc., Meadville, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice shall be substituted for the Administrative Law Judge's notice. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Service Employees' International Union, Local 227, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment: All housekeeping employees including the head housekeeper, all laundry employees including the 229 NLRB No. 98 head laundress, all dietary employees including the kitchen head, all maintenance employees including the painter, all nurses aides, licensed practical nurses, the ward clerk, the arts/crafts employee, and the beautician; excluding all office clerical employees, registered nurses, the pharma- cist, the administrator, the director of nursing, and guards, other professional employees, and other supervisors as defined in the Act. By order dated March 22, 1976, the Regional Director ordered a hearing with respect to objections and challenged ballots in Case 6-RC- 7203 and consolidated the unfair labor practice and representation cases for the purposes of hearing, ruling, and decision by an Administrative Law Judge. The Regional Director also ordered that, after decision by an Administrative Law Judge, the representation case be transferred and continued before the Board. 2 We agree with the Administrative Law Judge, that the persons challenged at the election as casual employees were casual employees, as the facts show that each of these employees worked infrequently and sporadically, on no regular basis, with varying hours of work on various shifts. Their earnings during the relevant period were minimal. As these persons were casual employees, it is proper that the challenges to their ballots be sustained. I As recommended by the Administrative Law Judge we shall issue a Certification of Representative as a majority of the valid ballots in the election have been cast for the Union. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law, and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT discharge or otherwise punish employees because they have engaged in union activities or concerted activities for their mutual aid or protection, and/or because they assisted the Board in the investigation of matters pending before it under the Act. WE WILL NOT coercively question employees about their union membership, sympathies, activ- ities, and desires, nor will we create an impression that their union activities are under surveillance. WE WILL NOT maintain an invalid no-solicita- tion/no-distribution rule, nor will we enforce or threaten to enforce such a rule by any means, including issuance of written warnings. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights. WE WILL offer Diana (Keisel) Shaffer and Jeanette Peterson immediate and full reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent posi- 620 MEAD NURSING HOME tions, without prejudice to their seniority or other rights and privileges, and give them backpay for any loss of earnings. WE WILL rescind the written warning issued to Diana (Keisel) Shaffer on August 13 and delete any reference to that warning from her personnel file. All our employees are free to engage in union activities on behalf of Service Employees' Interna- tional Union, Local 227, AFL-CIO, or any other labor organization, to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection. Our employees are also free to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. MEAD NURSING HOME, INC. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This consolidated proceeding was heard before me on May 10 and 11, 1976, at Meadville, Pennsylvania. The charges in Cases 6-CA-8670 and 6-CA-8787 were filed on October 8 and November 13, 1975,' respectively, by Service Employ- ees' International Union, Local 227, AFL-CIO.2 The consolidated complaint, issued January 30, 1976, alleges that Mead Nursing Home, Inc., hereafter referred to as Respondent, violated Section 8(a)(l) of the Act by (a) maintaining and threatening to enforce an invalid no- solicitation and no-distribution rule, (b) interrogating employees and creating the impression that their union activities were under surveillance, and violated Section 8(a)(1), (3), and (4) of the Act by (c) discriminatorily reducing the hours of Diana (Keisel) Shaffer and Jeanette Peterson and by terminating them on November 11.3 A petition for certification of representative in Case 6- RC-7203 was filed on July 21 by the Petitioner and, pursuant to a Stipulation for Certification Upon Consent Election approved August 13, an election was held on September 19 in the following unit of employees: All housekeeping employees including the head house- keeper, all laundry employees including the head laundress, all dietary employees including the kitchen head, all maintenance employees including the painter, all nurses aides, licensed practical nurses, the ward clerk, the arts/crafts employee and the beautician; excluding all office clerical employees, registered nurses, the pharmacist, the administrator, the director All dates are in 1975 unless otherwise specified. 2 Hereafter referred to as Petitioner. of nursing and guards, other professional employees and other supervisors as defined in the Act. At the conclusion of the election the tally of ballots showed: 122 approximate number of eligible voters; no void ballots; 55 votes cast for petitioner; 41 votes cast against participating labor organization; 96 valid votes counted; 26 challenged ballots; 122 valid votes counted plus challenged ballots. Following the timely filing of objections to conduct affecting the results of the election by the Petitioner, the Regional Director for Region 6 directed a hearing on certain matters relating to the objections, involving the alleged (I) interrogation of employees, (2) (3) maintenance and threatened enforcement of an invalid no-solicitation and no-distribution rule, (4) refusal to permit an employee to return to work from a leave of absence, and (5) discriminatory issuance of a disciplinary warning notice. Since the number of challenged ballots is sufficient to affect the results of the election, the Regional Director also ordered that a consolidated hearing be held including issues concerning the eligibility of the employees whose ballots were challenged. Because of the interrelationship of the issues raised in case 6-RC-7203 with those in cases 6- CA-8670 and 6-CA-8787, these cases were consolidated for hearing. All parties were afforded a full opportunity to participate in the hearing. Counsel for General Counsel argued orally. The Petitioner and the Respondent filed briefs. All briefs and arguments have been carefully considered. Upon the entire record in the case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION As admitted in the answer, Respondent is a Pennsylvania corporation engaged in the business of operating a proprietary nursing home in Meadville, Pennsylvania. During the 12-month period immediately preceding Janu- ary 30, 1976, Respondent in the course and conduct of its business operations, received gross revenue in excess of $100,000 and purchased and received at its Meadville facility goods valued in excess of $50,000 from other enterprises located in the Commonwealth of Pennsylvania, which other enterprises had received the said goods directly from suppliers located in States other than the Commonwealth of Pennsylvania. As admitted, I find that Respondent is now and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. LABOR ORGANIZATION The Petitioner is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. I One further allegation, par. 7(a), relating to an employee named Ursula Herring, was withdrawn at the end of the General Counsel's case. 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Supervisory Status and Agency At the hearing Respondent amended its answer to admit that the following named persons were at all times material herein agents and supervisors within the meaning of Section 2(1 1) of the Act, and I so find: William McBride W. James McBride Lois Briggs Ruth Ann Pethel Gladys Dubal M. S. Conaway Administrator Personnel Director Director of Nursing Nursing Supervisor Nursing Supervisor Nursing Supervisor B. The Alleged Unlawful Interrogation and Creation of the Impression of Surveillance According to undisputed and credited testimony by Peter A. Wydra, organizer and business representative for Petitioner, he was first contacted by employees of Respon- dent on June 30. The first union meeting was held on July 9 followed by numerous "minor committee meetings" and two further "general meetings" on July 31 and August 27. Wydra testified that the July 9 meeting was attended by Supervisors Conaway and Pethel who were registered nurses since at the outset of the campaign, prior to the withdrawal of its petition in case 6-RC-7203 on August I1I, Petitioner was also seeking to represent a unit of registered nurses. Azita Dearborn testified that near the beginning of July prior to the July 9 meeting which she attended, she had a brief conversation with Wydra who was standing at the end of the nursing home driveway. Dearborn asked him what he thought he could do for her, and Wydra gave her a card and invited her to attend the meeting. A short time later she saw Personnel Director James McBride, informed him about the incident, and announced her intention to go to the meeting. On July 11, Dearborn was approached by Nursing Supervisor Ruth Ann Pethel who said she had heard that Dearborn had been to the union meeting and asked if she minded discussing what went on there. Dearborn said no, and proceeded to describe what had been discussed, including such topics as insurance and wages. Then Pethel asked if Dearborn knew any of the girls who were there, and Dearborn replied she did not because she knew very few girls on the first shift. Pethel responded that they already knew who was at the meeting and that Mrs. Briggs, the head of the nursing staff, had asked her to talk to Dearborn. Diana Parker testified that she signed a union card and attended the July 9 and 31 meetings. Around the middle of August, during a conversation between Nursing Supervisor Gladys Dubal, Parker and others at the nurses station about 2:30 in the afternoon, Dubal brought up the subject of the Union by asking what they thought about the Union. Parker responded that she was for it, and Dubal remarked she was neither for it nor against it. Parker elaborated that she thought it would be good because there would be more benefits and set rules and regulations at the home and that they would have nothing to lose by trying to get it in. In her testimony, Pethel admitted saying to Dearborn, "I hear you went to the meeting." Upon receiving an affirmative response, she asked if there were many there from the second shift. Dubal denied asking Parker what she thought about the Union during a conversation with a group of employees in August at the nursing station, but admitted she talked with employees about the Union, "but not very much." At another point in her testimony she stated that she did not recall talking to Parker about the Union in August but did remember having a conversation in which someone said they might choose the Union because it would help them. Considering these admissions, I credit the testimony of Dearborn and Parker and find that Dubal and Pethel unlawfully interrogated them as alleged in the complaint, and further that Pethel's July 11 remarks to Dearborn tended to create the impression that the employees' union activities were under surveillance. C. The No-Solicitation/No-Distribution Rule It is undisputed that during all times material herein, from April 1, 1974, through November 1975, Respondent maintained in its personnel policies manual a rule which read: "There shall be no distribution of materials of any kind, other than those directly related to normal work assignments, and there shall be no solicitation of any kind, during working hours, and in any work area." The manual then proceeds further to provide for the following disci- pline for infractions of the rule: "The first offense-written warning, second offense-termination of employment." Diana (Keisel) Shaffer began her employment with Respondent as a nurses aide in August 1974. Her first contact with the Union occurred at the end of June when she received literature from Union Representatives Peter Wydra and Gerry Henchey at the end of the nursing home driveway. She filled out and mailed in the union authoriza- tion card they had given her at that time and following her 2 weeks' vacation in July became active in union affairs. She collected names and addresses of employees for the Union's use, attended union meetings, was present with the Union at the scheduled representation hearing which resulted in the signing of a stipulated consent agreement, and served as a union observer at the September 19 election. Following the August 11 election conference (Keisel) Shaffer attempted to post a one-page document, containing Petitioner's letterhead, at the nursing home. The document captioned "Election Notice" summarized the substance of the stipulated consent election agreement arrived at between the Company and the Union at the conference. Shaffer was called to the office of Director of Nursing Briggs and handed a written warning about violating the Company's no-solicitation/no-distribution rule, which she refused to sign. Briggs ended the interview with the remark that she would have to talk to Mr. McBride about what they were going to do. Very shortly thereafter Shaffer received a letter from Personnel Director McBride which embodied the substance of the written warning and cautioned her that further infractions of Respondent's rules would result in her termination. The text of the letter read: 622 MEAD NURSING HOME It has been brought to my attention that you have willfully disregarded the rules and regulations of the Mead Nursing Home. On August I , 1975, you were observed with posters that you were told could not be placed on the bulletin boards and you were later observed hanging them on the bulletin boards. As you are well aware this is a violation of the No Distribution/No Solicitation Rule which states that the distribution of materials not directly related to normal work assignment is prohibited as well as solicitation of any kind in any work area. The first offense of this rule results in a written warning and the second offense will result in termination of employment. You may consider this letter as your only written warning. If I receive any more information concerning your disregard for the rules of this Home, your employment will be terminated. One final incident relating to Respondent's enforcement of its no-solicitation/no-distribution rule occurred on or about September 2. According to Shaffer, on that day she brought some union newspapers into the nursing home in a brown paper bag and left them, still in the bag, beside her purse at the nurses station. Later, about lunchtime, Shaffer noticed that the bag containing the newspapers was missing. After questioning Sandy Huff, another employee who also had brought in union newspapers, about their whereabouts, it was decided they would ask Mrs. Briggs what happened to them. Upon discovering that Briggs was not in her office, the two employees sought out James McBride. When they asked about their newspapers he pointed to his waste basket. In answer to the two employees' question concerning why he had taken their newspapers, McBride answered that they were not allowed in the home. When Shaffer and Huff protested that they were their own personal property and they had not been passing them out, McBride repeated that they were not allowed in the home and then remarked that since Huff was quitting in 2 weeks it didn't matter to her but that he had already warned Shaffer once and was telling her now that the next time she would be fired. Shaffer also testified that she had read Respondent's policy manual but did not know that employee notices were supposed to be posted on a bulletin board near the lounge in the basement of the home rather than on the bulletin boards at the nurses stations. She agreed that she and Huff had left the packets of newspapers at each nurses station in order that other employees could pick them up and read them if they so desired. On cross-examination, Shaffer insisted that McBride specifically said that the newspapers were not to be distributed in the home at all. Lois Briggs testified that, on other occasions prior to the newspaper incident testified to by Shaffer, she had discovered union newspapers in the home and had picked them up and thrown them away. Concerning the newspa- per incident related by Shaffer in her testimony, Briggs testified that it was she who discovered the newspapers laying in the open at the nurses station around September 2, and that she took them to the office. She insisted that she had never permitted any type of literature to be distributed to employees at the nurses stations, including religious materials and advertisements for Avon products. W. James McBride, Respondent's personnel director, testified con- cerning the September 2 newspaper incident that the newspapers were in his office when he arrived at work, that he told Shaffer that they were not to be received at her work station and thus violated the no-solicitation/no- distribution rule, and that if she continued to break the rules of the nursing home she would be subject to dismissal. McBride also testified that on a third occasion, on August 7, Shaffer was verbally reprimanded for distributing union newspapers. He stated that while employees are not permitted to post notices on the bulletin boards at the nurses stations, such posting is permitted on the bulletin board in the employee lounge. To the extent their testimonies differ, I credit the testimony of Shaffer over that of Briggs and James McBride who were very evasive on cross-examination and exhibited a distinct tendency to fence with counsel about these incidents. I also do not credit James McBride's testimony that he verbally warned Shaffer about distrib- uting union newspapers on August 7, since there is no reference in the August 13 warning letter to any previous alleged infraction of the no-solicitation/no-distribution rule, but it specifically states that a written warning constitutes the specified discipline for a first offense. The General Counsel argues that Respondent's mainte- nance, since April 1974 and throughout the union cam- paign, of the no-solicitation/no-distribution rule as worded above constitutes a violation of Section 8(aX I) of the Act in that the wording of the rule itself is invalid, since it prohibits solicitation and distribution during working hours and in all work areas. In support of his argument, the General Counsel cites Essex International, Inc., 211 NLRB 749 (1974); and Summit Nursing and Convalescent Home, Inc., 196 NLRB 769 (1972), as controlling precedents. In Essex the Board held that it would consider a no-solicitation/no-distribu- tion rule restricting such activities during "working hours" invalid since the term "working hours" is prima facie susceptible of the interpretation that the restriction is applicable during all business hours. Thus, a rule utilizing the term "working hours" would be valid only if it were shown by extrinsic evidence that the rule was explained or applied so as to convey clear intent that solicitation and distribution during breaktimes or other periods when employees are not actively at work is permitted. On the other hand, the use of the term "working time" was held to clearly convey an intent that the restriction of solicitation or distribution of union literature was limited only to "the period of time that is spent in the performance of actual job duties, which would not include time allotted for lunch and break periods." In Summit the Board held invalid a rule which prohibited union solicitation at any place in the nursing home, even on employees' nonworking time and in nonworking areas. In addition, the Board applied the test enunciated in Stoddard-Quirk Manufacturing Co., 4 and found the no-distribution rule invalid as prohibiting 4 138 NLRB 615, 618 (1962). 623 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distribution in the nursing home during employees' nonworking time. The General Counsel also urges that Respondent's enforcement of the rule by McBride's September 2 oral threat that Shaffer would be terminated if she repeated the infraction also violated Section 8(a)(1), and that the issuance of the August 13 warning letter to Shaffer also violated the Act. Respondent argues, on the other hand, that its no- solicitation/no-distribution rule is validly worded and was properly and uniformly enforced. It cites the recent decision of the Board in St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976), as the controlling precedent which it is contended supports Respondent's position. Generally, no-solicitation rules are presumptively valid if applicable only to solicitation during working time, but are presumptively unlawful if they extend to solicita- tion during nonworking time regardless of whether the solicitation occurs in a work or nonwork area. Rules prohibiting the distribution of literature are presumptively valid unless they extend to activities during nonworking time and in nonworking areas. The existence of a rule which is presumptively unlawful must be justified by evidence to show some special circumstances which warrant a further restriction of employee rights. In St. John's the Board acknowledged the existence of special circumstances in hospitals, arising from the fact that a hospital's primary function is patient care, an essential element of which is a tranquil atmosphere. Thus the Board held that a hospital may be warranted in banning solicitation on nonworking time in strictly patient care areas, such as patients rooms, operating rooms, and places where patients receive treatment such as X-ray and therapy areas. The Board further noted that broad restrictions were not justified by these considerations insofar as they apply to visitor access areas other than those involved in patient care and patient access areas such as cafeterias and lounges. The Board's decisions issued since St. John's, involving no-solicitation and no-distribution rules as applied to nursing homes, do not specify whether or not the Board intended the St. John's rule to apply to nursing homes. Obviously there are distinct physical and functional differences between a hospital and a nursing home where some of the facilities and services performed relate directly to health care and some do not. At least one case, National Nursing Home Consultants, Inc., d/b/a Clermont Nursing and Convalescent Home, 223 NLRB 13 (1976), wherein the Board subsequent to its St. John's decision adopted the Administrative Law Judge's finding of an invalid no- solicitation rule based on the Summit case, suggests that Summit provides the controlling rule relating to no-solicita- tion/no-distribution rules in nursing home cases. However, I find it unnecessary to pass upon this question since an analysis of both Summit and St. John's reveals that a justification for the existence of a broad no-solicitation/no- distribution rule further restricting employee rights in this area is dependent on a showing of the existence of special circumstances. In the instant case no evidence seeking to show such special circumstances has been offered. Respon- 5 Likewise it would seem even if the rule in St. John's were applied the rule would he invalid for the additional reason that the prohibition encompasses all work areas. dent simply contends that St. John's is controlling and that its rule is presumptively valid as worded and enforced. I do not agree. Respondent's rule as worded in its personnel policies manual prohibits solicitation of any kind during working hours and, consequently, is clearly invalid under the Board's Essex decision. In addition, the rule is also too broad in that its prohibition against solicitation "in any work area" also transcends the Board's pronouncement in Stoddard-Quirk,". . . to effectuate organizational rights through the medium of oral solicitation, the right of employees to solicit on plant premises must be afforded subject only to the restriction that it be on nonworking time." The restrictions concerning that portion of Respondent's rule relating to distribution are susceptible to two reason- able interpretations, both of which are invalid. If the prohibition against "distribution of materials of any kind" is read in conjunction with the final clauses in the sentence "during working hours, and in any work area," it is invalid under Essex because it includes breaks and lunch periods.5 Secondly, an employer's no-distribution rule may reason- ably be interpreted as prohibiting the distribution of materials of any kind, other than those directly related to normal work assignments. Indeed, this is the precise interpretation given by Personnel Director McBride both in his August 13 warning letter and his September 2 statement to Shaffer, according to her credited testimony, in which he stated that her union newspapers were not allowed in the home and threatened to discharge her if she brought them in again. Such a total prohibition of the distribution of union literature on Respondent's premises is clearly invalid. Therefore, under all the circumstances discussed above, I find that Respondent violated Section 8(a)(1) of the Act by maintaining an invalid no-solicita- tion/no-distribution rule, and by enforcing that rule through its August 13 warning letter and September 2 threat to (Keisel) Shaffer. D. The Alleged Reduction of Diana (Keisel) Shaffer's and Jeanette Peterson's Working Hours Between October 1 and November 11 In the immediately preceding portion of this decision I have described how in August and again in early September Diana Shaffer's union activities came to the attention of Briggs and McBride in connection with her infractions of the home's no-solicitation and no-distribu- tion rule. Shaffer was first hired as a full-time nurses aide in August 1974. Her full-time status continued until the end of June when, pursuant to her request to have weekends off, Briggs told her the only way she could be free on weekends was to request to go on part-time status. Thereafter Shaffer's request to be placed on part-time status 4 days a week in July was granted. Shaffer spent the first 2 weeks in July on vacation. Thereafter she worked 4 days a week and, with the exception of one weekend, had the weekends off. During August and September, however, she worked 4 days a week, in her words "mostly weekends." When the October schedule was posted, her 624 MEAD NURSING HOME hours were reduced to 2 days a week for the entire month of October. The posted November schedule allocated to her 7 days of work for the entire month. In October when Shaffer asked Briggs why her hours had been reduced and why she was scheduled to work mostly weekends, Briggs answered "because that's when we need you, and if you don't like it, quit." On November 4, Briggs told Shaffer that she would return to a 4-day workweek. Jeanette Peterson began working for Mead Nursing Home in 1969, but quit after a year and a half of employment. She was reemployed as a nurses aide in February 1973, at which time she expressed the desire to Mrs. Briggs to work about 30 or 32 hours a week with no work on weekends. After some discussion between them, it was agreed that Peterson would have the amount of hours requested, but that she would work one weekend a month. Peterson first came into contact with the Union through Peter Wydra's passing out union literature around the end of June near the entrance to the home's driveway. Thereafter she talked to other employees about the Union and attended all of the union meetings except one. Her union sympathies became known to Respondent in early July sometime after the first union meeting had taken place, when she told Nursing Supervisor Conaway at the north wing nurses station that she was really for the Union because it would benefit the part-time workers.6 For approximately the last year preceding the end of September 1975, Peterson had worked 4 days a week which included one weekend per month. In October her hours were reduced to 3 days a week with only one weekend per month free. Upon being rescheduled, Peterson went to see James McBride, and inquired about the change. McBride answered that the reduction had occurred because he did not need her. Peterson responded that she could not understand why she was not needed when they were working short at the time. McBride concluded the conversation by saying that the next month her hours might be cut even more.7 When the November schedule was posted, Peterson's hours were reduced further to 2 days a week including work on every other weekend. However, on November 4 she was called to the office by Mrs. Briggs who increased her work schedule by adding 5 days to it. Mrs. Briggs, who prepares the monthly work schedules, did not testify concerning the reduction in Shaffer's and Peterson's hours. According to Personnel Director W. James McBride, beginning in January the management at the nursing home began planning a change in its operations to utilize "a team nursing approach" which he described as putting more licensed people on the floor for closer supervision of nursing care. The change resulted in an increase of staff at the nursing home. Thus, as of May there were 23 full-time and 7 part-time employees employed at the home, whereas by August Respondent had a comple- ment of 30 full-time and 13 part-time employees. As the result of a surge in employment applications in May and June, the home was able to fulfill its needs very quickly thereafter. Thus, it appears from the record that there were ; This testimony is undenied and credited. I McBride did not deny having this conversation with Peterson. 8 Diana Parker. who testified for the ,General Counsel concerning other 10 part-time nurses aides hired by Respondent during July and early August. By the end of September, however, McBride concluded that, because of the increase in personnel, the home was rendering far in excess of the required 2 hours per day of nursing care per patient. Consequently, in order to accommodate the complement of full-time workers, the number of hours worked by all part-time employees was reduced. This testimony provided by McBride is for the most part unrefuted by the testimony of the General Counsel's witnesses. Moreover, a portion of Peterson's testimony, that the work schedules of Diana Parker and Janet Work were also cut, partly corroborates McBride's assertion that all part-time employees' hours were reduced during this period.s It is the burden of the General Counsel to show that Respondent's action in reducing Shaffer's and Peterson's hours was prompted by a discriminatory purpose. He has proved that both Shaffer and Peterson were active advocates of the Union's cause. It has also been clearly shown, as discussed earlier, that Respondent knew of Peterson's union sympathies by mid- July and about Shaffer's distributing union literature by mid-August. It is also evident that Respondent displayed some animosity toward Shaffer's attempts to make union literature available in the home to her fellow workers. From this point on, however, the General Counsel, in essence, seeks to have discounted McBride's undisputed testimony concerning his intervening July and August hiring program and concluded, without further evidentiary support, that the reduction in Shaffer's and Peterson's hours occurred because of their union activities. I do not agree that the General Counsel has proved this aspect of his case. Although Respondent's conduct in this respect, particularly the abrupt rejoinder of Briggs to Peterson that if she didn't like the change she could quit, raises some suspicions concerning Respondent's motive, the lack of any evidence concerning a different motive other than that provided by the reasons given by McBride, coupled with the time gap between Respondent's first knowledge of these employees' union sympathies and the time of the reduction in hours, destroys the evidentiary link which the General Counsel seeks to demonstrate. I therefore find that the General Counsel has failed to prove Respondent violated Section 8(a)(1) and (3) of the Act by reducing the hours of Shaffer and Peterson, as alleged in the complaint. E. The Discharge of Shaffer and Peterson On page 3 of Respondent's personnel policies manual, the following rule appears: If an employee finds that she must be absent from work for any reason, it is her responsibility to inform her supervisor, as soon in advance as possible. It is mandatory that the employee report he; absence, and the reason, at least 3 hours prior to her scheduled shift. Such notification must be given directly to the supervisor, and not to the switchboard operator, or to any other employee. An employee must explain to her supervisor, the reason for reporting late aspects of this case, and who thereafter remained available, was not recalled to rebut this portion of McBride's testimony. 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for work, and must have the supervisor's permission to leave early. Any full-time employee who reports off, for 2 or more days, in addition to her regularly scheduled days off, during a 4-week period, will be subject to being placed on part-time status. On November 6 Diana Shaffer approached Mrs. Briggs in her office and asked to be off the 12th in order to go to Pittsburgh to talk with the NLRB. Briggs asked why she had to go since the election was already over. Shaffer answered that she did not have all of the information, but believed it concerned the "harassment charges." Shaffer added that Jeanette Peterson and Diana Parker had to go also and that if they were scheduled for work that day they too would need time off. Briggs responded that Peterson and Parker would have to come and tell her, unless they did not know anything about the matter. Shaffer said they knew about it. Then Briggs asked if she had received a letter from the National Labor Relations Board. Shaffer replied no, and Briggs said if she received one to bring it in. Shaffer agreed. On the following day Briggs again asked if Shaffer had received a letter. Shaffer said no, and Briggs said if she got one to bring it in Monday. According to Shaffer, at no time did Briggs say she could not attend the Pittsburgh meeting. On Monday, November 10, Briggs asked about the letter from the Board again. When Shaffer answered that she still had not received the letter, Briggs asked if it was not a common practice for the Board to send the letter. Shaffer responded that she did not know, because she had never done anything like this before. Briggs ended the conversation by saying that she would call and find out. According to Shaffer, Briggs gave no indication that she could not go to Pittsburgh on Novem- ber 11. On cross-examination Shaffer explained that she did not fill out a written request slip, as she had done at times then in the past, because on other occasions Briggs had asked her to fill one out and on this occasion she did not. Shaffer went on to explain that in actual practice if the schedule was posted one simply asked for time off, if it was not yet posted a written request was submitted, and if an employee was sick, they simply called in. This was not a policy, however, and on some occasions a written request slip was filled out whenever Briggs asked for one. Jeanette Peterson had a similar interview with Mrs. Briggs on November 7. Peterson did not mention the NLRB but said that she had to go to a hearing in Pittsburgh on November I I and wanted off for the day.9 As she had done with Shaffer, Briggs asked if Peterson had a "paper." At first Peterson said no, but after thinking that perhaps Briggs was referring to the copy of the charge form she had received, replied yes. Briggs asked her to bring it in. Peterson agreed. Then Briggs said, "Okay, Jeanette," and wrote something down on a pad of paper. Peterson had no further conversation with Briggs until November 12. According to Peterson, in the past when she had requested time off, Briggs would circle the day she wanted off on the calendar, but she did not fill out a slip. Peterson testified that there was no hard and fast rule at the home 9 On cross-examination Peterson agreed that her affidavit given to the Board agent was correct in that it omitted any specific reference to the about obtaining permission for time off, but that she had always received permission orally. On November 11 Shaffer and Peterson went to Pitts- burgh where they gave affidavits to a Board agent concerning other aspects of this case. Upon reporting for work on November 12, both employees discovered that their timecards were not at the clock, but in place of the cards they found letters dated November 11, signed by Briggs as director of nursing service, terminating their employment. Shaffer's letter referred to the August 13 warning letter concerning her violation of the no-solicita- tion/no-distribution rule and the statement therein that she would be terminated for any further violations of the rules of the home. The letter Peterson received referred to the discipline rules and regulations for the home, and that since she had failed to conform to the policies, the first offense was termination of employment. After conferring with one another, Shaffer and Peterson decided to confront Briggs about their discharges and demand an explanation for their discharges. Later that day they went to the home accompanied by Randy Shaffer, Diana's husband. At the home, Mrs. Briggs took them to see William McBride, where Peterson and Shaffer asked Briggs about the dismissal letter and why they were fired, noting that they had reported to her on Friday the necessity for being absent Monday. Briggs' only response was to repeatedly claim that she was not Peterson's and Shaffer's supervisor. McBride insisted that they had not "reported off'" properly to Briggs, and told Briggs she didn't have to answer any of their questions because they didn't work there any more. Briggs testified that she did not give Peterson and Shaffer permission to be absent from work on Monday and that requests for time off were made in writing. I do not credit her testimony in this regard. On cross-examination Briggs was extremely nervous and displayed considerable hostili- ty. In addition, when pressed, she conceded that at times employees did obtain time off without filling out the prescribed form, that Shaffer had mentioned a "hearing," and that she could have responded that she "thought this stuff with the union was all over with." Briggs agreed that she had asked if it was common practice for a letter to be sent to those whose presence was required. I credit the testimony of Peterson and Shaffer. I find that Briggs recognized that Peterson and Shaffer were requesting time off on November I for the purpose of pursuing a matter relating to a Board proceeding, and that her actions in connection with the events preceding Peterson's and Shaffer's November II appointment with the Board agent were intended to lead the employees to believe they had received permission to absent themselves from work that day. Under these circumstances, I conclude that the discharges of Peterson and Shaffer were unlawful. This conclusion is further confirmed by the testimony of both Briggs and Administrator J. William McBride who testified that other employees, who had been terminated for not reporting for work, had been discharged only after repeated failures to report for work, and after having received the warnings required by the policy manual. Indeed, when Mrs. Briggs was confronted on cross-exami- NLRB and simply stated that she told Briggs she had to go to a hearing in Pittsburgh that day. 626 MEAD NURSING HOME nation by this discrepancy between the manner in which Peterson and Shaffer were summarily discharged, and the warning requirements of the policy manual, she paused and finally answered, "I don't have an answer for that question." I find that Respondent violated Section 8(a)(X), (3), and (4) of the Act by discharging Peterson and Shaffer on November 11, as alleged in the complaint. IV. THE CHALLENGED BALLOTS The Board agent challenged the ballot of David Monteforte because his name did not appear on the list of eligible voters. Petitioner challenged the ballots of part- time nurses aides Kay Joanne Plocica, Virginia Thayer, Anita Hans, Diane Gray, Virginia Lee, Joanne (Barth) Kaminski, Susan Lambert, Marion New, Karen Orr, David Williams, Lois Kelley, Nancy Bloomstrand, Louise Kelley, Jo-Ella Kelley, and Margaret Kindervater, and part-time maintenance employees Charles Hans, Elver Bollard, John Phelps, and Edward Rush on the basis that they were casual employees; challenged the ballots of Rouene Smith, Ray Smith, J. P. Mattera, and Sandy Shull on the basis that they were not employees of the Employer at the time of the election; and challenged the ballots of Stanley Peterson and Larry Kelley on the basis that they were outside the unit. At the hearing it was stipulated that David Monteforte was not employed as of the eligibility date, that Stanley Peterson, a barber who services the home, is an indepen- dent contractor, and that Rouene Smith and Ray Smith have been and continue to be on sick leave with no reasonable expectancy of returning to work.' 0 Thus, it was further stipulated that these employees were ineligible to vote in the election. I recommend that the challenges to their ballots be sustained. It was also stipulated, based on Respondent's records, that Joanne (Barth) Kaminski, Larry Kelley, Karen Orr, Sandy Shull, and David Williams are full-time employees eligible to vote. The ballot of J. P. Mattera was challenged solely on the basis that he was not an employee at the time of the election. Mattera was hired, prior to the eligibility date, as a full-time maintenance employee. The Employer's records show he worked 62 hours during the period July 17 through 25, and 40 hours the week of September 26 through October 3. W. J. McBride testified without dispute that during the interim period Mattera did not report for work, was not paid anything, but was not removed from the roll and was not required to reapply for employment. Since there is no evidence concerning Mattera's status in the record, I find that Petitioner has failed to sustain its burden of proof that Mattera was not an employee at the time of the election. Concerning the remaining persons who were challenged on the basis that they were casual employees, it is unnecessary to indulge in a repetitious accounting of each item of the evidence, relating to each of these employees, since each of their circumstances falls within the same general pattern. It is clear, as shown by Respondent's 'o The payroll eligibility date was August 9. 'A In making this finding I find it unnecessary to rely on Petitioner's records and the testimony of Briggs and W. J. McBride, that each of these employees worked infrequently and sporadically, on no regular basis, with varying hours of work on various shifts. Their earnings during the relevant period were minimal. I find that they are all casual employees, and consequently I shall recommend that the challenges to their ballots be sustained, and, in addition, since under these circumstances the remaining challenges are insufficient in number to affect the results of the election, I shall recommend that Petitioner be certified as the exclusive collective-bargaining representative of the employees in the appropriate unit." V. THE OBJECTIONS In section III of this Decision I have found that within the critical period Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union sympathies and activities, by creating the impression that their union activities were under surveillance, and by maintaining an invalid no-solicitation/no-distribution rule which was enforced by a threat and the issuance of a disciplinary warning. These violations of the Act are encompassed by Petitioner's objections, listed as items 1, 2, 3, and 5 in the Regional Director's order directing hearing on objections and challenged ballots and notice of hearing, dated March 19, 1976. It is recommended that these objections be sustained. It is also recommended that the objection contained in item 4 be overruled, no evidence having been offered on this objection and the parallel complaint allegation, 7(a), having been withdrawn. In the event the findings, conclusions, and recommenda- tions with respect to the challenges discussed in section IV of this Decision are adopted, and Petitioner is certified as the exclusive collective-bargaining agent, dispositive of the question concerning representation in Case 6-RC-7203, further action with respect to these objections will be unnecessary. However, in the event the findings, conclu- sions, and recommendations of section IV are not adopted and any other resolution of the challenged ballots results in Petitioner not receiving a majority in the final tally of ballots, I recommend that the election be set aside and a new election ordered. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Diana (Keisel) Shaffer and Jeanette Peterson on November I 11 because of their union activities and because they assisted the Board in the investigation of matters pending before it under the Act, Respondent violated Section 8(aX1), (3), and (4) of the Act. 4. By interrogating employees concerning their union sympathies and activities, by giving them the impression that these activities were under surveillance, and by maintaining, threatening to enforce, and enforcing an invalid no-solicitation/no-distribution rule, including the Exhs. 26 and 27 or to resolve the issue of whether or not each of these exhibits represents a complete schedule. 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issuance of a written warning to Diana (Keisel) Shaffer for violating the rule, Respondent violated Section 8(a)(l) of the Act. 5. Respondent has not violated the Act in any other respect. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order that Respondent cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily discharged Diana (Keisel) Shaffer and Jeanette Peterson, I find it necessary to order Respondent to offer them full reinstatement with backpay computed on a quarterly basis, plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatment. Having found that Respondent discriminated against Diana (Keisel) Shaffer by issuing to her a written warning for violating an invalid no-solicitation/no-distribution rule, I find it necessary to order Respondent to rescind this warning and remove any documentation reflecting this action from her personnel file. Finally I shall recommend that the challenges to the ballots of David Monteforte, Kay Joanne Plocica, Virginia Thayer, Anita Hans, Diane Gray, Virginia Lee, Susan Lambert, Marion New, Lois Kelley, Nancy Bloomstrand, Louise Kelley, Jo-Ella Kelley, Margaret Kindervater, Charles Hans, Elver Bollard, John Phelps, Edward Rush, Rouene Smith, Ray Smith, and Stanley Peterson be sustained and that, since the remaining challenges are insufficient in number to affect the results of the election, Petitioner be certified as the exclusive collective-bargaining agent for Respondent's is employees in the appropriate unit as set forth earlier in this Decision. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, Mead Nursing Home, Inc., Meadville, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because of their union activities and/or because they assisted the Board in the investigation of matters pending before it under the Act. 12 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. (b) Interrogating employees concerning their union sympathies and activities, and creating the impression that their union activities are under surveillance. (c) Maintaining, threatening to enforce, and enforcing by any means, including the issuance of written warnings, and invalid no-solicitation/no-distribtuion rule. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Diana (Keisel) Shaffer and Jeanette Peterson immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, in the manner set forth in "The Remedy." (b) Rescind the written warning issued to Diana (Keisel) Shaffer on August 13 and delete any reference to that warning from her personnel file. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and all other records necessary to analyze whatever amount of backpay may be due under the terms of this Order. (d) Post at its facility in Meadville, Pennsylvania, copies of the attached notice marked "Appendix."' 3 Copies of such notice, on forms provided by the Regional Director for Region 6, after being signed by an authorized representative of Respondent, shall be posted by Respon- dent 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 insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED to the Board that the challenges to the ballots of David Monteforte, Kay Joanne Plocica, Virginia Thayer, Anita Hans, Diane Gray, Virgin- ia Lee, Susan Lambert, Marion New, Lois Kelley, Nancy Bloomstrand, Louise Kelley, Jo-Ella Kelley, Margaret Kindervater, Charles Hans, Elver Bollard, John Phelps, Edward Rush, Rouene Smith, Ray Smith, and Stanley Peterson be sustained, and that, since the remaining challenges are insufficient in number to affect the results of the election, Petitioner be certified as the exclusive collective-bargaining agent for the Respondent's employ- ees in the appropriate unit. IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 13 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 L.abor Relations Board." 628