St. Paul'S Church Home, Inc.

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St.- Paul's Church Home, Inc. and Hospital and Nursing Home Employees Union Local No. 113, Service Employees International Union, AFL- CIO. Case 18-CA-7403 31 July 1985 DECISION AND ORDER BY:CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 10 March 1983 Administrative Law Judge Phil W. Saunders issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel-filed an answering brief. The National Labor Relations Board has delegat- ed its. authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions to the extent they are consistent with this Decision and Order, and to adopt the recom- mended Order as modified. The judge found that Licensed Practical Nurses (LPNs) Sue Daul and Willie Sager were acting as the Respondent's agents in the conduct of the 27 August meetings with the employees in the chapel; that the Respondent must be held accountable for their actions and statements; that Sager was the Respondent's agent for the purpose of uncovering the reasons the employees wanted the Union; and that during the meetings with employees Sager vio- lated the Act by threatening employees with a loss of benefits if they selected the Union, and by inter- rogating employees as to why they wanted the Union. In support of his conclusion, the judge found that there was a reasonable inference that the em- ployees at the meeting on 27 August believed that Sager and Daul were speaking-and acting on behalf of management.- He based- -such inference on his finding that several employees testified to having seen Sager, Daul,, and others meeting with Re- spondent Administrator Jadoo on the Respondent's porch immediately prior to the' chapel meeting; that the Respondent's intercom system was then i We adopt the administrative law; judge's conclusion that the Re- spondent violated Sec 8(a)(3) and (1) by annouiicing and subsequently revoking a wage increase 'In doing so, we rely on his findings that the Respondent's administrator Jadoo told employees at a meeting held 26 August that a wage increase had been recommended, and that a notice posted on a bulletin board on the Respondent's premises about the same time announced that an across-the-board wage increase of 60 cents per hour would be effective 1 September Contrary to the judge, we do not find that a decision to defer consideration of a proposed wage increase in the wake of union organizing activities pending the outcome of `these ac- tivities or an election necessarily violates the Act Medical Center at Bowling Green, 268 NLRB 985 (1984) used to summon-the employees to the chapel meet- ing; that Jadoo was present during at least part of the meetings, and both meetings were held during normal work hours; and that the Respondent did not seek to disavow any of the statements made by Sager, Daul,2 and others during the course of the chapel meeting or the meeting held in- the dining room shortly thereafter. - • - 1 - • The' Respondent contends that the judge's find- ing that Sue Daul and-Willie Sager were acting as agents of the Respondent is' not adequately sup- ported in the record. We find merit in the Re- spondent's contention. As found by the judge, the Respondent received a letter from the Union demanding recognition on 27 August 1981. At approximately noontime of that day, antiunion employees Willie Sager, -Sue Daul, Randi Pittman, and Mary Kusterman met with Ad- ministrator Jadoo on the back porch of the Re- spondent's' facility to discuss the organizing- cam- paign and they were seen by prounion employees. The Respondent's witness Randi Pittman testified on cross-examination that she and the other antiun- ion employees, Sager, Daul, and Kusterman, re- quested permission to hold a meeting of employees and asked Jadoo to speak at the meeting. Pittman further testified that she wanted to know why the employees wanted a union, that she told Jadoo that was why she wanted to call the meeting, that she used the intercom system to summon employees to a. meeting at 1 p.m. in the Respondent's chapel, and that Sager opened the meeting. However, as noted by the judge, Pittman re- called that Sager opened the meeting but could not remember the substance of what was said. More- over, Pittman testified that Jadoo was not,present at the beginning of the meeting, although he came in at some time after it started. Several of the witnesses called by the General Counsel testified that Jadoo, Sager, and Daul were in front of the chapel and that Sager did most of the talking. Union protagonist Sharon Caron testi- fied that, after Sager asked why the employees wanted a union when they were not willing to dis- cuss their complaints, Caron told her that the em- ployees did not have to listen to her, at which time Jadoo stood up and indicated he agreed by stating that Caron was right and that the employees did not have to listen to Sager or Jadoo. Thus, the record shows that Jadoo made clear to the employ- ees that the Respondent was disavowing Sager's 2 However, the judge also found that no illegal remarks were attrib- uted to Sue Daul Although Randi Pittman and Mary Kusterman were also seen with Willie Sager and Sue Daul at their meeting with Adminis- trator Jadoo on the back porch of the Respondent's facility, no illegal remarks were attributed to Pittman and Kusterman 275 NLRB No. 170 ST PAUL'S,CHURCH conduct and statements . Moreover, the record fails to show that Jadoo was present when the asserted unlawful interrogation and threats took place. As to the second meeting held on 27 August; Donna Gilsdorf Lorch3 testified .that Jadoo was asked to leave the meeting shortly after it started, and that he did so' Therefore; the record does not support a finding that the Respondent approved or ratified the conduct of Sager at such meeting. Al- though it is asserted that the employees were in- formed that they would lose all - their benefits if they voted for the Union, Lorch was unable to de- termine who made the statement , and she testified that either Sager or scheduling coordinator Carole Cole made the statement. There is no evidence that someone from management was present when the asserted threat was made. It is well established that under Section 2(13) of the Act the responsibility of a respondent for the actions of others alleged to be its agents is con- trolled by the applicability of the common law rules of agency.4 Therefore, the establishment of an agency relationship requires proof of the pres- ence of the respondent's bestowal of authority on_ the asserted agent, whether actual or apparent, and either in advance or by subsequent ratification.5 Contrary to the judge, we find that there is no basis on which the employees could conclude that Sager and Daul were speaking and acting on behalf of management . The record is devoid of any evi- dence that either Sager or Daul was a supervisor or had acted as a spokesman for management at the meetings in issue or on prior occasions . Although several employees testified to having seen Sager, Daul, and other antiunion employees talking to Ad- ministrator Jadoo on the back porch of the Re- spondent's facility prior to the 27 August meetings with the employees, there is no evidence that the subject matter discussed at that particular time in- cluded antiunion conduct involving interrogation and threats. In these circumstances ; it can hardly be concluded that the prounion employees ' could reasonably conclude that at that time the Respond- ent bestowed upon Sager and Daul authority to make illegal statements or engage in_ unlawful con-, duct. While the meeting on the - back porch might indicate that the antiunion employees, Sager, Daul, and others, might share similar' antiunion 'views with management, these circumstances are insuffi= cient to render ' the Respondent responsible for the asserted illegal conduct engaged in by Sager and 3 The witness' name had been changed to Donna Gilsdorf Lorch at the time of the hearing 4 Electric Motors & Specialties, 149 NLRB 1432'(1964) 5 Lexington Chair Co, 150 NLRB 1328 (1965) ' 1243 Daul.6 Inasmuch as there is no evidence that the Respondent directed Sager and Daul or 'cloaked them with authority to engage in the alleged illegal conduct,7 we find that the Respondent is not re- sponsible for their statements or conduct.8 Accordingly, we find that there is no evidence in this record which- would support a finding that Sager,' Daul, and ' others were acting as the Re- spondent's agents in the conduct of the 27 August meetings or that the Respondent must be held ac- countable for their actions and statements including Sager's conduct in attempting to uncover the rea- sons the employees. wanted the Union. ORDER The National Labor Relations Board adopts the recommended Order ' of the administrative' law judge., as modified below and orders that the Re- spondent, St. Paul's Church Home, -Inc., St. Paul, Minnesota, its officers, agents, successors , and as- signs, shall take the action set forth in the Order as modified. 1. Delete paragraphs 1(a) and (b) and reletter the subsequent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. MEMBER DENNIS, dissenting in part. Contrary to the majority, I agree with the judge that the Respondent must be held responsible for the coercive conduct of employee Willie Sager. It is undisputed that Administrator Jadoo met with several antiunion employees , including Sager, and.' expressly authorized a • meeting to ascertain why employees wanted representation . At the ini- tial' meeting, announced over the Respondent's intercom system, held on company time,, and at- tended by Jadoo, Sager asked employees why they wanted a -union. The judge found that Sager also told them, either at the initial meeting or at a second meeting convened immediately after the 6 Electric Motors-&. Specialties, supra Unlike our dissenting colleague, we find this case distinguishable from Bio-Medical Applications of Puerto Rico, 269 NLRB 827 (1984), where, as here , there is msiifficient evidence to support a finding that the Respondent authorized or subsequently rati- fied the employee's conduct - ' - 7 ' We note that the term "express authorization " contained in our col- league's dissent refers to the Respondent's grant of permission to certain employees to hold a meeting for 'the purpose of ascertaining why em- ployees wanted'a union There is no evidence that, in granting permis- sion , the Respondent either directed or even contemplated the making of certain remarks . or that the ' Respondent sanctioned those remarks by being present at the , meeting at the time the remarks were made or by any other subsequent word or action Unlike our dissenting colleague, we do not find that, by merely providing access to a forum for discussing competing views, the Respondent should now be held accountable for any statements of employees which may have occurred during the course of the discussioii' 8 Kendall Co , Bethune Plant, 126 NLRB 502 (1960) 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first meeting ended, that they would lose benefits if they chose the Union. I agree with the, judge that Sager acted as the Respondent's agent in the meetings and the Re- spondent is therefore responsible for her remarks. First, Jadoo expressly authorized Sager to hold a meeting to find out why employees wanted the Union. Although he did not specifically authorize her loss-of-benefits threat,- it fell ,within the scope-of her general authority to speak at the meetings, and furthered the Respondent's interest in opposing the Union. Second, I agree with the judge that the meetings were held under circumstances -leading employees reasonably to believe they reflected company policy rather than individual employee sentiment. Accordingly, Sager had apparent au- thority to speak for the Respondent as well as actual authority.1 For the above reasons I would `adopt the judge's findings that Willie Sager was the Respondent's agent and that the Respondent violated the Act by interrogating employees and threatening them with loss of benefits if they selected the Union. - ' See Bio-Medical Applications of Puerto Rico, 269 NLRB 827 (1984) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL,NOT promulgate and/or selectively and disparately enforce policies in the posting -of. em-' ployee notices in -a manner calculated to interfere with employee Section 7 rights. - WE WILL NOT freeze employees' wages because. of their union or concerted activities. • - _ - _ WE WILL NOT create the impression of surveil-; lance of employee union activities. - WE WILL NOT inform employees that' an an- nounced wage increase will not be given because of union activity, and/or, revoke such -wage in-, crease. WE WILL NOT inform and/or admit to employees that their hours and duties have been, changed be- cause of their union-activities, -and/or tell employ- ees that they have been discriminated against be- cause of union activity. . . WE WILL NOT change the hours-and/or duties of employees, or suspend, give warnings, discharge, or otherwise discriminate against them because of their union -activities. WE WILL .NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the-rights guaranteed them by-Section 7 of the Act. - WE WILL offer Julie Bailey, Sharon Caron, and Carole Lawson immediate. and full -reinstatement. to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed and WE WILL make them whole for any loss of earnings -and other benefits resulting from their discharge , less any net interim earnings, :- plus _interest, and in the same manner make whole Mavis Cohenour for her illegal sus- pension. - WE WILL make whole employees for the wage losses suffered as a result of our revocation of wage increases announced on 27 August 1981. WE WILL re-establish the classification or posi- tion- of Certified Medication. Aide so as to fully re- store Kathi Schmidt- and Sharon Caron to those duties and that position, and with the same hours of -work they enjoyed prior to August 1981, and likewise so establish the normal hours of work for Mavis Cohenour. WE WILL remove from our files and records all references to the discharges of Julie Bailey, Sharon Caron, and Carole Lawson, and the suspension of Mavis Cohenour, and the last two written warnings to Cohenour and Bailey, and notify them in writing that this has been done and will not be used as a basis for future discipline against them. ' ST. PAUL'S CHURCH HOME, INC. DECISION STATEMENT' OF THE CASE PHIL W. SAUNDERS, Administrative Law Judge. Based on charges and amended charges filed on certain dates in September'and October 1981,1 by Hospital and Nursing Home Employees Union Local No 113, Service Em- ployees International Union, AFL-CIO (the Union or Local 113) -a complaint was issued on November 30 (amended on July' 23, 1982) against St. Paul's Church .Home, Inc. (the Respondent) alleging. violations -of Sec- tion 8(a)(1) and (3) of the Act The Respondent filed an answer to the complaint denying it had engaged in the alleged matter. Both the General Counsel and the Re- spondent filed briefs in this matter. - On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing - ' All dates are 1981 'unless stated otherwise ST PAUL'S CHURCH , -- 1245 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Minnesota corporation with an office and place of business in St. Paul, Minnesota, and at all times material herein, has been engaged as a health care institution in the operation of a nursing home pro- viding inpatient medical and professional care services .. During .the. calendar, year ending December 31, the Respondent, in the course and conduct of its business op- erations, derived gross revenues in excess of ' $100,000, and during the same period the Respondent purchased and received at its St. Paul, Minnesota facility products, goods, and materials valued in excess of $5000 directly from points outside the State of Minnesota The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the- meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES The complaint alleges that,-during the times material herein, the Respondent disparately restricted the posting of union-related literature; threatened loss of benefits; on several occasions interrogated employees regarding the Union; withdrew or revoked. a previously announced wage increase due to union activity; created the impres- sion of surveillance; changed the duties and/or hours of several employees (Gilsdorf, Schmidt, Cohenour, Lawson, and Caron); issued two written warnings to Mavis Cohenour and suspended her for 3 days, and dis- criminately discharged' Sharon Caron, Julie Bailey, and Carol Lawson. . The Respondent Js a nonprofit corporation governed by a board of trustees which owns and operates the facil- ity here in question-a 112 bed nursing home in St. Paul The Respondent employs- nursing, 'housekeeping, laun- dry, dietary, maintenance, and an administrative staff but, in this case, only the nursing staff is involved Within the nursing staff were certified nursing assistants (CNAs), who made up the bulk of the nursing staff, certified medication aides (CMAs), who had passed a short train- ing course on the admmistiation of medications, licensed practical nurses (LPNs), registered nurses (RNs) in vari- ous capacities; and an assistant director. of nurses and, a director of nurses 2 - -It appears that the nursing staff worked on three shifts-the' morning shift from approximately 6:30'a.m to 3 p.m.; the evening shift from approximately J2 30-to 11' p.m., and the night shift from approximately 10.45 'p.m. to 6:15 a.m. The Respondent also maintained a -daily. 2 The following named persons occupied the positions set forth oppo- site their respectrve. names and are supervisors of the Respondent within the meaning of Sec 2(11) of the Act Lionel Jadoo-administrator, Kath- leen Kelley-assistant administrator, Juanita Reilly-director of nursing, and Mary Mullane-assistant director of nursing LPNs Sue Daul and Willie Sager are alleged to be agents of the Respondent, but their status, as such, is in issue and will be discussed later herein schedule for the nursing department called the "Nursing Daily Recap Schedule Sheet," and these recaps were en- tered irito'.'thts record as General Counsel Exhibit 3 and Respondent Exhibit 2. The Respondent points out that its St. Paul facility also maintained , through its personnel policies, an em- ployee disciplinary system to deal with attendance prob- lems and other violations of those policies-that an em- ployee would receive a progression of warnings leading to suspension, and finally termination at the second and third' warnings The Respondent further maintains -that, due to its internal analysts of employees' records in May, and in response to a- complaint 'registered by Julie Bailey in late July, it had already begun the process of reinforc- ing its personnel policies, applying its warning system more consistently, and requiring all employees to work a consistent schedule and weekends when the union orga- nizing activities began, and points to Respondent Exhib- its 21 and 22-minutes of department meetings held in mid-August and all -indicating that employees were then being spoken to concerning such policies. The events herein arose contemporaneously with an attempt by the Union to organize certain of the Re- spondent's employees.' On August 5, 9 or 10 employees, including alleged discriminatees Sharon Caron, Mavis Cohenour, Donna Gilsdorf, Kathi Schmidt, and • Julie Bailey, met at Sharon Caron's apartment to discuss the subject of organizing. Shortly thereafter Caron contacted a representative of Local 113, and in mid-August ap- proximately 19 or 20 employees, including the alleged dtscriminatees named above, met with a Local 113 repre- sentative and authorization cards were signed and distrib- uted. On August 27, the Union filed a petition seeking to represent two separate units of the Respondent's employ- ees-a service and maintenance unit and a licensed prac- tical nurse unit, and pursuant to an election held on Oc- tober 9; the Union was certified as the collective-bargain- ing- representative of the 'employees in the service and maintenance unit, but not of the employees in the li- censed practical nurses unit. - Lionel Jadoo, administrator of the facility here in question, testified that he first learned' about the organiz- ing activities on August 26, and on that evening he met with a group of employees and informed them of a letter he had written to the Respondent's board of trustees concerning wage increases, and that an employee then read this letter to the other employees present at this meeting. .The following day, August 27, the Respondent re- ceived a letter .from Local 113 demanding recognition, and around ,noontime employees Willie Sager, Sue Daul, Randi Pittman, and Mary Kusterman (antiunion employ- ees) met with Administrator Jadoo on the back porch of the Respondent's facility to discuss' the organizing cam- paign and were seen by, prounion people. The Respond- ent's witness Randi Pittman testified that on this occasion she and the other employees named above requested per- mission to hold a meeting of employees and asked Jadoo to-speak at the' meeting.. Pittman testified on cross-exami- nation as follows: 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Fox) Is it your testimony that you wanted to know why the employees wanted a Union, that's why you called the meeting? A. This is correct. Q Did you tell Mr. Jadoo that is why you wanted to call the meeting9 - A Yes, we did. Randi Pittman then used the intercom system to summon employees to a meeting at- 1-p.m . in -the chapel at the Re- spondent's facility. . - 1. i Pittman recalled that Willie Sager opened the meeting but could not remember the substance of what was said. However, Pittman did recall that Jadoo was not 'present at the beginning of the meeting but came in after the meeting started. - Several witnesses called by the General Counsel testi- fied that Jadoo, Sager, and Daul were in front of the chapel and that Sager did most of the talking. Donna Gilsdorf (sometimes Donna Lorch , herein) testified she recalled Jadoo telling them on this occasion that "he could not say much because of the Union practice, Union going on_ and everything was frozen ." Moreover, that Sager "asked us why we wanted a Union but nobody said anything, and that Sharon Caron said that "if we said anything , it was like we were admitting we were for the Union , which we did not have to do." Sharon Caron also testified as to this meeting and stated: - Willie Sager had said that there was problems in the Home and that if anyone of us had any -problems, they wanted to know about them. They wanted to know why we wanted a Union, if -there was any problems to talk to them about it. Nobody an- swered her: She said, well, seeing as nobody had any complaints, why did we want a Union? Then I. told her that we really didn't have to listen to her and this is when Mr. Jadoo stood up and said no, Sharon Caron is right, you don't have to. listen to us. He was waving some papers in the air and said he had gotten those from the Union and they were what he could do and what he was not.to do and then he said that it seemed to him that none of us wanted to hear his proposal for 1981, so those who did not want to listen could leave; the ones -who did want to know about the proposal could meet him in the main dining room on the first floor. Kathi Schmidt testified that- A. I recall Willie Sager asking us why we wanted a Union, and if there was any problems we should have consulted Mr. Jadoo instead of going to the Union. Q Do you recall anything'else that was said? A. About the benefits, she said that we would be losing all of the benefits if we' were going to get a Union in, and that we wouldn't-have the benefits we had at that time. - Q.' Do you recall anything else being saidl' Do you recall any employees saying anything? A.. At that time, Sharon Caron had said that we did not have to listen to her (Sager), that none of the employees had to listen to anything they had to say. - - , General Counsel's witness Julie Bailey testified that: A. Willie` Sager opened up the 'meeting and she said, she asked us-she wanted to talk about the Union and she asked us why we were going to'the Union seeking representatioii, when Mr. Jadoo had been so good to us and was offering us a raise. Q. Do you recall anything else? A. She asked .us what'the Union could do for us that Mr. Jadoo couldn't and why didn't we give him a chance to hear his side of the story. Then she asked what, could the Union do for us and no one answered her. And then she said since nobody wanted to talk about the Union, then the Union couldn't be that good. So I asked her if she had ever been to a Union meeting, and she said no, but that' she intended to go. Sharon Caron then said that we did not have to sit there and listen to her talk about the Union, and especially in front of the office personnel, they couldn't expect us to stand up and say that we were for " the Union. Then Mr. Jadoo stood up and said if we didn't want to listen to him, we could all. back to work If we wanted to talk, we could-meet with him in the first floor dining room. Then we all went back to work. Finally, General Counsel's witness Mavis Cohenour testi- fied: • 'Willie Sager got up and- started the meeting. She wanted to know if we could 'tell her what the Union could do' for us that' Mr: Jadoo- couldn't do for us; he was already giving us so many good ben- efits and had offered us more money and we were supposed to give her a couple of good reasons why we wanted the .Union Nobody said anything, and then I remember Sharon Caron saying that if they wanted to know about the Union, they could go to Union meetings, and we did not have to answer. Then Mr: Jadoo got up and said that if we wanted to listen to him we could all come to the first floor dining room, those that wanted to listen; those that didn't should go back to work - Donna Gilsdorf 'was the 'only witness called by the General Counsel who attended the second meeting in the dining room on August 27. Gilsdorf testified that Jadoo was again present along with Sager and Daul-that with a chalkboard Sager informed employees as to the money amounts contained in the proposed wage increases of the Respondent, and that either Sager, or the then -schedul- ing coordinator Carol Cole, informed the employees that they would lose all of their "benefits if they voted to be represented by the Union. It appears that Jadoo was asked to leave this meeting shortly after it started, and that he did so. " . Counsel for the Respondent argues that Sue Daiil and Willie Sager, LPNs 'on the evening shift, along with- ST. PAUL'S CHURCH 1247 Randi Pittman and Mary Kusterman, - CMAs on the evening shift, all employees who would be entitled to vote in any certification election, initiated the meeting here in question with the day staff employees to discuss the pros and cons of unionism; that they met with Jadoo prior to the meeting to ask his permission to conduct it and to invite him to participate if any employees had questions; that Willie Sager was the spokesperson for the group -of -employees initiating -the, meeting and opened the meeting when there was no management persons present asking those employees in favor of the Union why they wanted one, that Jadoo was then invited to the meeting to answer questions, but he did not stay for much longer than 5 minutes; and when leaving stated that he would be available' in the dining room for anyone who wished` to talk to him,' but that no one was obligated to listen to him. A number of employees then recon- vened in the dining room and again Jadoo was invited to answer questions, but soon was asked to leave and the discussion then continued among-the employees. Counsel for the Respondent maintains that Sager and Daul, along with promanagement employees,Randi Pitt- man and Mary Kusterman, were acting in theircapacities as fellow employees wishing to discuss the question of concern they shared with the day-shift employees, namely, the merits of having a union, and while it ap- pears that management gave its approval for such a meeting, Jadoo was present only before he was requested by prounion employees to leave, and in all other respects the discussion in question was an open one between fellow employees. It is argued by the Respondent that from these facts it cannot be concluded that Daul and Sager operated as agents of the Respondent; that it is also clear they were not supervisors within the meaning of the Act as they were employees who were entitled to vote in the. subse- gtient election In addition, they had no supervisory au- thority over 'any of the day-shift employees as they worked on the evening shift, and thus there can be no allegation of any threat or interrogation from a supervi- sor. Moreover; even though the General Counsel singles out Daul and Sager as agents- because they were LPNs, they merely acted with two other employees and all of whom were members of the rank and file ' As indicated, the Respondent seeks to disclaim respon- sibility for what occurred at the meetings on August 27 by contending that Sager and Daul were acting in their individual capacities as employees and not as the Re- spondent's agents, but the record belies this contention. First, Sager, Daul, et al., proposed, and Lionel Jadoo agreed, that he attend a meeting to be held for the pur- pose of determining why the employees desired union representation. Jadoo therefore expressly sanctioned the course of conduct on which' Sager, Daul, et al., em- barked. ' An employer may be liable for the acts and 'statements of nonsupervisory employees who act as his agents. It is well settled that where an employer places a nonsupervi- sory employee in a position in which employees could reasonably believe he speaks for management, the em- ployer then may be responsible for the 'coercive state- ments of that employee. • The' critical issue is "`whether, under all the circumstances, the employees would rea- sonably believe that the nonsupervisory employee was reflecting company policy and speaking and acting for management." Community Cash Stores, 238.NLRB 265 (1978).3 In the instant case, considering all the extenuating cir- cumstances, as aforestated, it is a reasonable inference to conclude that the employees at the meeting on August 27 would believe that Sager and Daul were speaking and acting on behalf of management.' Moreover, several em- ployees testified to having seen Sager, Daul, et al., meet- ing with Jadoo on the porch immediately prior to the chapel meeting. The Respondent's intercom system was then used to summon the employees to the chapel meet- ing; and Jadoo was present during at least part of the meetings, and both meetings were held during normal work hours Moreover, the Respondent did not seek to disavow any of the statements made by Sager, Daul, et al, during the course of the chapel meeting or the meet- ing held in the dining room immediately thereafter. -In these circumstances it is clear that Sager, Daul, et-al., were acting as the Respondent's agents in the conduct of the August 27-meetings and that the Respondent must be held accountable for 'their actions and statements.-9 Cer- tainly, Sager was the Respondent's agent for the pur- poses of uncovering the reasons as to why the employees wanted the Union The evidence recounted above establishes that during the meetings in question the Respondent's agent Willie Sager violated the Act by threatening employees with a loss of benefits if they'selected the Union, and by interro- gating employees as to why they wanted the Union. It is alleged in the complaint that on August 26 Ad- ministrator-Lionel Jadoo informed employees that a pre- viously announced wage increase could not be granted because of .union activity, and that about this date the Respondent revoked their previously announced wage increase Lionel Jadoo, the Respondent's administrator, and Donald Oswald, the chairman of the board of trustees, both testified as to their preliminary discussions about a wage increase, but which was halted when the Union's representation efforts became known Jadoo testified that as early as May and June he had been talking about a wage increase for his employees as the Respondent's wage scale was somewhat. lower than other nursing homes in the area and, in accordance therewith, he sent a letter, dated August 25, to the chairman of the Re- spondent's personnel advisory committee recommending certain cost-of-living increases in various classifications, and to be effective September 1 instead of the nornial wage adjustment in December.6 s See also Delta Hosiery, 259 NLRB 1005 (1982) a One of the Respondent's own witnesses (Rosetta Barnett) so testified on direct examination ' Q (By Ms Blumer) During that meeting, do you remember what your opinion was of who Willie Sager and Sue Daul were speaking for, themselves or for Mr Jadoo9 A At that time, I thought they were speaking for Mr Jadoo 5 No witness testified to any remarks made by Sue Daul and, therefore, no illegal statement , as such , can be attributed to her ' See R Exh 19 , , 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jadoo stated that he was also present at a board of trustees meeting on August 26 when his wage proposal was discussed, but about the same time he was handed a poster and another document which notified them of the union activity here in question, and as a result the Re- spondent Board Chairman Donald Oswald told Jadoo that in view of this development nothing could be done with his wage proposal. Jadoo denied discussing any wage proposals at the meetings on August 27. Chairman Donald Oswald_ testified that before the wage proposal here in question could be authorized, a meeting would have been held to review the current wages with the proposals of Jadoo, and to then ascertain if the home could afford such increases, but stated that such a meeting had not taken place and, therefore, the wage proposal recommended by Jadoo was not finalized. Chairman Oswald acknowledged that the board of trustees decided to halt any further consideration of the increase in wage proposals, pending resolution of the representation question, and stated his two reasons for doing so. A. Well, there were two reasons really, one was that if the Union was to be voted in, it would create a new floor from which to negotiate a contract with the Union after they came in anyway. Second- ly, if we were to make an adjustment knowing that they were asking for or about to ask for recogni- tion, we might be accused of trying to buy off the employees by making a wage increase Under those conditions, we would just wait it out and it wasn't normally due until the first of December anyway. Counsel for the Respondent points out and argues that in the instant case, taking the confusing and the contra- dictory testimony of the witnesses for both the General Counsel and the Respondent together, the most that can be said is that Lionel Jadoo may have stated that the pending wage increase was "now frozen" due to union organizing activities and, if that is the situation, it still falls squarely within the reasoning of the court in Bon wit Teller v. NLRB, 197 F 2d 640 (2d Cir. 1952). In addition to what I have already outlined, various witnesses for the General Counsel testified that they saw, for a very short period of time, about August 26, posted by the timeclock on the second floor, a notice announc- ing a 60-cent-per-hour increase for all employees effec- tive September 1. This notice was'described as being on a half sheet of paper with the Respondent's. letterhead and was posted for an hour or two in the middle -of the day. , The Respondent's witnesses all deny the existence of any such posted notice. Administrator-Jadoo stated that he had no knowledge of any such notice, that there was nor such increase authorized, that he -did not authorize anyone to prepare or post such a notice, and that he did not ever hear of one prior to.a week before the hearing Diane Dietrich, the secretary for the Respondent, stated that she did not type such a notice, and that had such a notice been produced it would not have appeared on the Respondent's letterhead, and that she and others had searched for a copy of the notice, but could not locate any such copy. Rosetta Barnett; a housekeeper and a member of the union bargaining committee, stated that she was assigned to clean the second floor on the day in question' and' that she did not see any such notice even though she cleaned near the timeclock during the time it was purportedly posted, and she made it a habit to read the bulletin board there. Jadoo, testified that he-was fully aware of the fact that the Respondent had been subpoe- naed to produce such a document, yet he and his staff had no knowledge of such a notice and could ,not find copies anywhere. Counsel for the Respondent further argues that while the Respondent cannot call into question what the, Gen- eral Counsel witnesses may have seen; nevertheless, it urges a finding that the Respondent did not authorize or have knowledge of any such notice until it was subpoe- naed to produce it. The Respondent cannot be said to have committed any unfair practices by reason of the no- tice's purported existence, and the contents -of which were completely contrary to the actual wage increase which had been under consideration by the Respondent. Several witnesses called on behalf of the General Counsel testified, in substance, that about the time of the August 27 meetings, a notice announcing an across-the- board wage increase had been posted on the bulletin board by the second floor timeclock, and that the' amount of the wage increase, which was to be effective September 1, was 60 cents per hour. All agreed that the notice was posted for only a short time that day The Respondent's witnesses testified to the contrary, as afore- stated, and finally Jadoo testified that he did not author- ize the posting of the notice in question and had no knowledge of its existence. As already detailed earlier herein, second-shift employ- ees learned from Jadoo during the evening of August 26, that a wage increase had been recommended. Moreover, the General Counsel's witness Donna Gilsdorf credibly testified that at the second of the August 27 meetings (in the dining room) the proposed wage increase was dis- cussed, that the wages of various employees were even set forth on a blackboard by Willie Sager, and that the amount of increase she would have received was 60 cents per hour. In fact, even the Respondent's own wit- ness Eldoris Pankey confirmed that Jadoo discussed the proposed wage increase at the second meeting on August 27 and in the discussion at the second meeting that same day. Moreover, the chairman of the Respondent's board of trustees testified that he informed Jadoo on August 27 that the board had decided at its meeting the prior day to hold in abeyance further consideration of the pro- posed wage increase. As pointed out, this would explain Jadoo's statements to employees on August 27, at the chapel meeting, concerning the freezing of wages. It also explains the sudden removal of the posted notice con- cerning wage increases on August 27. In essence, the Respondent's board of trustees deferred consideration of Jadoo's proposed wage increases pend- ing the outcome of the Union's petition to represent the ST PAUL'S CHURCH employees.7 It appears to me that under the particular circumstances and events-here, the deferral or refusal to further consider the administrator's wage proposal and recommendation here in question was clearly calculated to impress on the prounion employees the fact that the advent of the Union was the real reason for failing to consider what might otherwise have been a valid and ac- ceptable proposal. See Blackstone Co., 258 NLRB 945 (1981) While the Respondent's board of trustees may not have finalized Jadoo's recommended wage package, in the eyes of the employees it was finalized The overall circumstances here duly reflect the same, especially so considering the posting of the increases and the discus- sion of it by Sager at the dining hall meeting. In view of the foregoing, I have found that due to the union activities of its employees, the Respondent first an- nounced and then revoked a wage increase in violation of Section 8(a)(1) and (3) of the Act. It is alleged that the Respondent selectively and dis- parately restricted the. posting of union-related literature to the employees' breakroom. Several witnesses called by the General Counsel (Lorch, Caron, Schmidt, and Bailey) testified that, prior to the commencement of the Union's organizing cam- paign, employees had commonly posted notices concern- ing social events, items for sale; ball games, dances, and similar announcements at various locations throughout the Respondent's facility. However, after the commence- ment of the organizing campaign the Respondent posted the following notice: POSTING It is the policy of St. Paul's Church Home that no notice be posted in hallways, resident rooms, bath- rooms, or corridors without written authorization by the administration, Personnel Policy Handbook -page 25 "i" Employees shall properly use and properly take care of the property, equipment and supplies which are assigned for use in' their work. Deliberate misuse, abuse or damage to property, equipment or supplies will be grounds for disciplinary action. Authorized posting will be allowed in the Employee Lounge only. Posting in any other area may result in written warning or termination.8 The Respondent Administrator Lionel Jadoo testified that it had always been the Respondent's policy to, re- quire permission prior, to posting anything at the Re-. spondent's facility, and that on seeing the numerous. post- ers all over the home concerning the organizing cam- paign and even in the rooms of the patients, he ordered that the above-quoted notice be put up and that this was no change in the Respondent's past policy. Counsel for the Respondent also points out that the rule or notice here in question merely reflects the policy The Board has frequently indicated that an employer must determine wage increases precisely as it would had not a union been in the picture 8GC Exh 4 1249 in effect at the Respondent's facility prior to the union organizing campaign, and which was not changed due to the, organizing campaign Moreover, after the rule was posted, all union materials were posted in appropriate places, and that Carmen Langer,- a CNA, testified that a union official, Lorne Johnson, suggested that the best place to post union literature was in the breakroom, as was the Respondent's policy. I am in agreement that the Respondent's adoption and/or promulgation of the rule set forth in the above- quoted notice is defective. First, even assuming that the Respondent could require authorization prior to the post- ing of notices in the specified work areas, such a limita- tion cannot be extended to a nonwork area such as the employee lounge, and by its express terms the rule in question permits only "authorized posting" in the "Em- ployee Lounge." Since an employer cannot lawfully re- quire that employees secure permission prior to engaging in protected activities, a rule which requires authoriza- tion prior to posting notices concerning an organizing campaign in a nonwork area is invalid as it interferes with employees statutory rights. Liberty House Nursing Home, 236 NLRB 456, 461 (1978). Second, as also point- ed out, it has long been held that an otherwise lawful rule is rendered unlawful if its adoption and/or enforce- ment is motivated by unlawful considerations. Since the evidence in this record clearly establishes that the Re- spondent condoned the posting of employee notices at various locations throughout its facility prior to the Union's organizing campaign, and since the Respondent admittedly posted the above-quoted notice in direct re- sponse to that campaign, the inference is unmistakable- that the Respondent's motivation in restricting the post- ing of employee notices was to thwart lawful organiza- tional activity. Thus, even assuming that the restriction on posting notices antedated the organizing campaign, and even assuming that the rule was applied uniformly following the commencement of the campaign, the Re- spondent's motivation in enforcing the rule rendered it unlawful. Ramada Inn of Fremont, 221 NLRB 331 (1976) It is alleged that in August and September the Re- spondent changed the duties of Donna Gilsdorf and Kathi Schmidt, and also changed the duties and hours of work of Sharon Caron. It is further alleged that on Sep- tember 9 Sharon Caron was discharged The General Counsel initially points out that this record clearly establishes that the regular first-shift certi- fied medication aides (CMAs)-Sharon Caron, Donna Gilsdorf, and Kathi Schmidt-were among the most active supporters for the Union and that the Respondent had knowledge of this fact, that the Respondent made certain changes in the duties and/or hours of work of these employees, and that the changes in question were made contemporaneously with the inception of the orga- nizing campaign. Sharon Caron was hired as a CMA in July 1979, and worked in that capacity until she was promoted to ward coordinator in February Respondent Administrator Lionel Jadoo told Caron at the time of this promotion that she would receive every weekend off in lieu of a 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increase,9 and in accordance therewith Caron did not work weekends in February, March, and April, but in May, June, and July she worked on a few weekends In August she worked no weekends. It appears that' sometime during the summer of 1981 the Respondent's -director of nursing Juanita Reilly told Caron that she would be returned to her prior position as a CMA, but she would have, to start working every other weekend.. Caron protested on the ground that she had been promised weekends off in lieu of a wage in- crease when she became ward coordinator. Reilly then told-her not to worry about it and that they would dis- cuss the matter further if it ever came up again. Caron then continued having every weekend off until after the August 27 meetings 10 This record shows that within a week after the August 27 meetings with management regarding the Union, as aforestated, Reilly informed Caron that she would have to start working weekends Caron protested and told Reilly that "everybody was being agitated" as a result of the organizing campaign. She also told Reilly that it was unfair to require her to work -weekends but that she knew it was coming - and would accept -it Reilly then asked Caron whether she favored the Union, and told her that Reilly had worked in union facilities previously and that unions were not good for anybody, and that Re- spondent Administrator Jadoo liked Caron and had done a lot for her Caron responded that she had- earned- ev- erything she had gotten. Reilly also told Caron that five or six employees had informed her that they did not know what they were signing when they signed authori- zation cards. Caron disputed this claim. II - - On September 4, Caron learned for the first time that she had been assigned to work as a certified nurses aide (CNA). 12 When' Reilly so informed her of the above, Caron immediately protested that she had been hired as a CMA and not as a CNA, and that she did not appreciate being assigned as a CNA. Reilly and Caron then went to the second floor dining room to discuss the matter fur- ther, whereupon Caron again protested her work assign- ment and told Reilly she would fight it legally if neces- sary Caron further testified - She told me that she knew that Dale Auber [sic] and I had started the Union, t 3 .and I told her she' had her information wrong, that it was not Dale and I. She said.that she wished the whole thing was over with, if it was up to her she would let us have our Union. She told me that other CMA's had to work as nurse's aides and again I told her that in the two years that I had been there, they had never told me I had to work- as a nurse's aide, and they 9 From July 1979 through January 1980 and up until her promotion, Caron worked every other weekend for the most part 10 G C Exh 5 - 11 Director of Nursing Juanita Reilly did not testify so all statements and conduct specifically attributed to her, as such ,-stands undenied in this record 12 CMAs had better pay and duties than did CNAs CMAs do chart- ing and pass medications CNAs are engaged primarily in patient care 13 This statement of Reilly must be deemed as creating the impression of surveillance and I so find - didn't make me work- as a nurse's aide until they found out Union wanted to get in. On September 9, shortly after -learning that she-had once again been scheduled as a CNA, Caron confronted Assistant Director of Nursing Mary Mullane. Caron tes- tified that: - • She told me, you know what -will happen if you .start all this Sharon ,, and- she said, come into my office because she didn't want the ruckus out on the floor So we went into her office and I told her, I said, you people are doing this just to agitate us, I said, that is all you-have ' been doing since we have been trying to get the Union in here She 'said, no, that is not true, that is not true. I told her she was nothing but a puppet on a siring and Mr . Jadoo was pulling those strings and they were doing anything they were told to do. She said, no, and she kept re- peating to me, you know, if you keep saying things and if you keep doing things, if you walk out of here, that is against you, that is against • you. But I was agitated, I was very mad and I told her I had discussed this with Juanita once - before about put- ting me down as an aide when I was not hired to be an aide and never made to work as an, aide until Union started to come in.- I just was so riled up I finally told her I wasn't going•,to take any more of this crap and I walked out. I punched out and walked out. The question of whether the Respondent constructively discharged Caron on this occasion is discussed later on 14 Donna Gilsdorf began working for the Respondent as a CNA on November 25, 1980, and received her CMA certification in March From - March until June, she worked as either a CMA or as a CNA, but in June she replaced the regular second-shift CMA. She then worked as a CMA from June 13 until August 27; From the date of the August 27 meetings relative to the Union until Oc- tober 19,1-1 Gilsdorf worked as a CMA on 12 occasions and as a CNA on 22 occasions.16 Gilsdorf quit her em- ployment in December. Kathi Schmidt was first employed by the Respondent in the housekeeping department in November 1978. Within a year she became a CNA, and in April 1980, she received her CMA certification and then worked as a CMA. The Respondent's scheduling records disclose' that Schmidt was not assigned to' work as a CNA at least from May 1 through August 27, but between August 27 and October 19, Schmidt was scheduled to work as a CMA -bn 14 occasions and as a CNA on 20 occasions. 17 14 Administrator Jadoo admitted that it had been reported - to him that Caron was a "dynamo," is a "motivator," and had the ability to,get people to work is The parties stipulated that no CMAs worked in that position from October 19 on "See G C Exh 3 11 G C Exh 3 ' ST PAUL'S CHURCH • 1251 Schmidt testified that on April 22, 1982, during_ the course of a conversation- with Director of Nursing Reilly, the following occurred: - l' I had gotten called ih for a warning about-having a sweater up in the lobby and I was telling her how trivial and ridiculous it was and that other employ- ees had done the same thing and had not gotten dis- cipliried for it at all. Then there was just a silence, ,and theii she asked' me if she 'could ask me some= thing and I said sure, and she said, by the way, this is off the record, why are you still for the Union and why are you still working at St. Paul's Church Home after all the harassment we `have given 'you, and then she said, by the way, if anyone asks you' what I've said, I'll just deny it. Approximately 1 week later, Schmidt returned the, written warning issued by Reilly to Assistant Director of Nursing Mary Mullane. Schmidt testified that: I was then telling her [Mullane] how trivial it was and ridiculous and she had agreed with me and said yes it is, she didn't like doing it but she had_her job to do At that time, she was agreeing with me and then she said that Mr. Jadoo had just told her, to harass me any way she could and to write me up if she found anything wrong or anything I did wrong. Then she said, in fact- if Mr. Jadoo had seen me talking to you like this, he would.probably probably harass her also. Atlhough Mullane testified at the hearing, she did not deny'Schmidt's account of the above conversation: Counsel for the Respondent points out' that a certified medication aide, or CMA, at the Respondent's facility, operated under a job description and in pertinent part that job description states as follows: DUTIES AND RESPONSIBILITIES 13 May function as Nursing Assistant 'as'.deter- mined by Charge Nurse and Director of Nursing. See Nursing Assistant job description. It is further pointed out by counsel that the Respond- ent had a longstanding practice,to assign CMAs to work as nursing assistants , or CNAs, when there were-inad- equate numbers of other CNAs to meet the needs of the patients, and that the Respondent's nursing daily recap schedule sheets for May 1 through October 31, 1981,18 reflect many days where CMAs were reassigned to work as CNAs on short notice to meet the needs of patients, and there is no doubt but that the Respondent's practice, for times prior to any union activity, was to reassign CMAs to CNA duty as necessary. Counsel for the Respondent further maintains that during the 2 months prior to August 26, it was not nec- essary to reassign any CMAs because the Respondent's schedule coordinator had no difficulty in maintaining adequate staffing, but beginning the last week in August, 18 R Exh 2andGC Exh 3 which happened to be the same week union organizing activities became known , to management, circumstances changed, and the scheduling coordinator, Carole Cole, had to begin making reassignments and to use temporary employees, called nursing pool, more often, and General Counsel Exhibit 3 indicates that the following CMAs were assigned to CNA duties, between August 27 and September 12, 1981: August 29, 1981-Caron, Johnson, and Gilsdorf on days; Pittman on evenings. September 1, 1981-Kusterman on evenings. September 3, 1981-Gilsdorf on days. September 4, 1981-Caron and Gilsdorf on days. September 6, 1981-Frey-on evenings. September 8, 1981=Gilsdorf on days September •9, 1981-Caron, Gilsdorf, and Schmidt on days. September 12, •1981-Grlsdorf on days Moreover, that such reassignments were done as before, on the basis of seniority within the staff assigned to the particular floor, and no loss of pay was involved. Of those CMAs reassigned, as necessary, the evidence re- flects that at least Kusterman and Pittman were not in- terested in union representation, while Caron, Gilsdorf, and Schmidt were. Thus, maintains the Respondent, it is clear that any reassignment was done evenhandedly without regard for possible interest in union representa- tion, and as authorized by the employees' job description and in keeping.with past practices. Furthermore, the Re- spondent began eliminating the use of CMAs altogether and replacing them with better trained licensed practical nurses (LPNs) beginning sometime in October That the elimination of the position of CMAs had been under active consideration during a large part of 1981, and nurses Mary Mullane, Kathleen Kelley, and Carole Cole all testified for the Respondent about the concerns the nursing staff had -about the use of CMAs, particularly in light of a few unfortunate incidents with some of them. The Respondent Exhibits 17 and 18 and General Counsel Exhibit 17 are records reflecting the patient care and medical concerns which led -to the decision to eliminate such positions. In addition, all.CMAs whose jobs were eliminated were reassigned-to CNAs with no loss of pay even though they were performing functions which re- quire less training and have less responsibility. Finally, counsel for the Respondent further maintains that the General Counsel has produced no evidence whatsoever, other than accident of timing, to indicate that the Respondent was motivated by antiunion animus in any reassignment of CMAs to CNAs. The Respondent contends that Sharon Caron was not asked to work as a CNA until September as there was little -need for reassigning any CMAs to CNA duties until the end of August: When she was reassigned, on two or three dates in early September, it was only when another less -senior CMA had. already been reassigned. Caron continued.to work as a CMA, her preferred job duties, on days when there was no staffing needs. The Respondent acknowledges that in late August or early September, Caron was also requested - to work 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD every other weekend as all other employees in the nurs- ing department were or were being asked to do-that as a CMA she had regularly worked weekends-from July 1979 through January 1980, but during February through May she was permitted to forgo working weekends be- cause she had assumed different job responsibilities and then resumed CMA responsibilities in June, when the issue of resuming weekend work was mentioned; that there was then an expectation that she would have to work weekends like other employees of the nursing staff and that the Respondent's requirement, as part of its ef- forts to maintain consistent scheduling for all employees, was in line with that expectation, and-that Caron's re- scheduling was based solely on a general policy to be evenhandedly applied -to all employees and was consist- ent with her previous responsibilities and job description and was.related to union activities only by the accident of timing The Respondent produced a good deal of testimony in support of its arguments and contentions in this phase of the case, through its staff or scheduling coordinator Carole Cole. Cole testified that in late August several employees went back to school or quit and she then had to schedule CMAs as nursing -assistants. Moreover,-that in October a decision was made ' that CMAs were no longer to be used as such, and she then scheduled them as CNAs. - - Cole further testified that. in the time period material herein she was also aware that certain employees were not working weekends-Cohenour, Caron, Lawson, Tau- zell, and Cocoran-and that at this time, in October, she was finding it difficult to adequately staff the weekend shifts 19 Cole said that as a result Reilly had informed her in September or October to schedule all nursing em- ployees every other weekend. - Assistant Director of Nursing Mary Mullane testified that she did not like the use of CMAs; and in August or September a decision was made to replace them :with LPNs Moreover, in late August the" staff discussed a more consistent schedule in getting those ' not working every other weekend to do so. - As pointed out, the Respondent's principal defense with regard to the changes in the 'duties and/or hours of Caron, Gilsdorf, and Schmidt is that CMAs had' histori- cally been utilized as CNAs and that, therefore, what oc- curred in the fall of 1981 was consistent -with past prac- tice. The Respondent also attempts to buttress. this de- fense by establishing that seniority, rather, than antiunion motivation, was used to determine which CMA worked as a CNA and that. the, Respondent treated,:prounion CMAs_ and other CMAs consistently 'The Respondent also contends that sometime in the fall of 1981 the Re- spondent abolished the CMA position for •'reasons .related to improving patient.care. As I have indicated,. the Respondent's defense con- cerning assigning CMAs to work as CNAs on numerous occasions depends primarily on the testimony of Carole Cole, the person in charge of nursing department sched-. tiling during times relevant herein. However, Cole's testi- mony is highly suspect. At the beginning of her cross- ' 0 See R Exhs 9 and 10 - examination, as pointed out, Cole was asked specific questions as to whether she had reviewed Lionel Jadoo's affidavit and the Respondent's 'position statement prior to her testifying. She answered each question in the nega- tive,' but then on the following day the Respondent's counsel recalled Cole, who, then admitted to having re- viewed each document on the day 'prio'r to hef denial. The Respondent's contention that the reassignment of CMAs to work as C_NAs in the fall of 1981• was 'consist- ent onsist- ent with historical practice is not borne' out by the record evidence. The.; only specific evidence offered by the Respondent that Sharon Caron previously had been assigned to work as a' CNA were three daily schedules for 1980, and accepting the fact that Caron did work as a CNA on those few occasions in 1980, this evidence only demonstrates how widespread her reassignments were prior to the union activity here in question. The -Respondent's record, in regard to Donna Gils- dorf, establishes that following her certification as a CMA, she then worked as a CNA on several occasions during May and June, but this pattern' seems to be con- sistent•with the overall scheduling of other CNAs who later became CMAs-like Gilsdorf. Thus, as outlined, the pattern that emerges from this 'record 'is that CNAs continued to work in that 'capacity-on occasions during the period immediately following their CMA certifica- tion-that there follows a transition period in which they work as either a CMA' or as a 'CNA-then eventually they are scheduled to work almost 'exclusively as CMAs. Gilsdorf's assignments as a CNA in late spring are con- sistent with this pattern. Scheduling Coordinator Carole Cole testified that she used seniority to reassign CMAs to work as CNAs. However, ' she admitted knowing that Caron, Gilsdorf, and Schmidt favored union representation, and that two other CMAs, Randi Pittman, and Mary Kusterman, were strongly opposed to such representation, but denied that this knowledge was a factor in determining reassign- ments. This record discloses that Cole construed seniori- ty to mean length of time worked as a CMA on a par- ticular shift, and that she generally. reassigned CMAs to work as CNAs on the same floor. Thus, as pointed out, since there was a maximum of one CMA per floor per shift, -there would hardly be any occasion to invoke se- niority in reassigning CMAs to work as CNAs. More- over, this record does disclose that Caron and Schmidt were the most senior CMAs, and that following August 27, they were never asked if they would like to bump a' less senior CMA on another shift. As further detailed by the General Counsel,' the Re- spondent's scheduling records disclose that the first-shift CMAs- were more frequently reassigned to work as CNAs 'than were the second- and third-shift CMAs. Thus, the records establish that, between August 27 and October '16, first-shift employees Schmidt, and Gilsdorf worked as CMAs on 14 and 12 occasions, respectively, 20 and in contrast second-shift employees Pittman and Kus- terman worked as CMAs on 20 and 25 occasions, respec- 20 Caron was not employed throughout this entire period and, there- fore, is not included in these comparisons ST PAUL'S CHURCH tively, but even more revealing, as also pointed out, is that during the same time period, Schmidt and Gilsdorf worked as CNAs on 20 and 22 occasions, respectively, while in contrast Pittman and Kusterman worked as CNAs on 1 and 0 occasions, respectively. In further con- trast, the record discloses that during the same time period, Johnson, who worked on both first and second shifts, was scheduled as a CMA on 8 occasions and as a CNA ; on 2 occasions, second-shift employee Frey was scheduled as a CMA on- 23 occasions and never as a CNA; third-shift employee Tazelaar was scheduled as a CMA on 22 occasions and never as a CNA; and third- shift employee Riley was scheduled as a CMA on 6 oc- casions and never as a CNA. Thus, as further indicated, the Respondent's scheduling records establish that the only significant rescheduling of CMAs between August 27 and October 16 occurred among the first-shift CMAs. I am in agreement that the Respondent has failed-to es- tablish its defense that the Respondent treated prounion and other CMAs consistently The Respondent's 'evidence concerning the decision to abolish the CMA position was also offered through Kathleen Kelley, staff development coordinator and ad- ministrative assistant.2 i Kelley was not questioned con- cerning the reassignment of individual CMAs during the period immediately following the August 27 meetings, and there is also a conspicuous absence of any record evidence as to what was discussed at the time it was de- cided to abolish the CMA position. Thus, although Kelley testified that she drafted a memo to Administrator Jadoo in September and that the board of trustees made a decision sometime thereafter, neither Jadoo, nor the Chairman of the Respondent's board of directors Donald Oswald was questioned as to their reasons for abolishing the CMA position. At this time it should again be noted that Caron, Gils- dorf, and Schmidt were known to be strong supporters of Local 113,22 and that the duties and/or hours of work of these employees were markedly changed immediately following the inception of the Union's organizing cam- paign, and these facts alone warrant the inference that the changes were motivated by unlawful considerations. Moreover, Caron's unrebutted testimony establishes that at the time Juanita Reilly informed her that she would have to start working weekends (in 'early September) Reilly then also asked her whether she supported the Union, as aforestated Furthermore, at the time Caron was first assigned'to work as a CNA in early September, Reilly accused her and another employee of being the in= stigators of employee union activity, as also' set -out pre viously herein Thus, on each- occasion when-Reilly dis- cussed changes in hours and duties with Caron, she en- gaged'in conduct which violated the-Act'and which also 21 Kelley testified that Mary Mullane, who joined the Respondent on February 1, had previously worked in homes where they had phased out CMAs because they felt they were not doing the professional job that an LPN , would do, and that the Respondent 's staff -had various meetings thereafter to discuss the subject Moreover, that a final decision on this matter was made by the board of trustees in September or October and that she sent a memo to Jadoo on this subject See R Exh 17 22 Carole Cole readily admitted that she was aware of the union sym- pathies of Caron, Gilsdorf, Schmidt, Lawson, Cohetiour, and Bailey - . . 1253 clearly evidenced union animus. Finally, Schmidt's unre- butted testimony establishes that in April 1982, Reilly in- terrogated her concerning her support for the Union, as aforestated, and within a week or .so thereafter Mary Mullane told Schmidt that she had been discriminated or harassed by orders from Administrator Jadoo, as previ- ously indicated herein, and which testimony also stands undenied.' In essence, this record clearly reveals that the two highest nursing department supervisors, on two sep- arate occasions, told Schmidt that the Respondent had discriminated and was continuing to discriminate against her because of Schmidt's union activities, and, of course, in violation of Section 8(a)(1) of the Act, as alleged. I am in agreement that the General Counsel has made a prima facie case which established that the Respondent discriminated against employees- Caron, Gilsdorf, and Schmidt by changing their duties and/or hours of work, in violation of Section 8(a)(1) and (3) of the Act as al- leged. Moreover, I have also found that since the record evidence establishes a direct causal connection between the discriminatorily motivated changes in Caron's duties and hours, and the quitting of her employment, the Re- spondent, by, its unlawful conduct, also constructively discharged Sharon Caron on, September 9 in violation of Section 8(a)(1) and (3) of the Act, as alleged 23 This is particularly true where, as here, the Respondent has em- barked on a systematic course of unlawful conduct for the evident' purposes of punishing-its employees because of their union activities and of forcing them to quit their employment, and this is especially so considering the un- denied statements attributed to Mullane and - Reilly. Moreover, for the reasons set forth above, the Respond- ent has failed to rebut the General Counsel's prima facie case by establishing that the Respondent would have made the changes in_question in the absence of employee union activity. Wright Line, 251 NLRB 1083 (1980). Similarly, the record evidence is also insufficient to es- tablish that the-Respondent abolished the CMA position based on Kelley's recommendation. Rather, and particu- larly in the absence of any testimony by those who actu- ally made the decision; the.evidence suggests that the Respondent seized upon this recommendation in an effort to conceal its earlier unlawful conduct . Finally, as also pointed out, it should be noted that the Respondent's de- fenses are shifting-thus, through Carole Cole, the Re- spondent attempted to 'show that the reassignments of CMAs=were made-because of scheduling difficulties, but through. Mullane - and Kelley the Respondent attempted to show. that the reassignments and changes were made to improve patient care. This shifting of defenses adds additional 'support to the General Counsel's prima facie case and.undermines the Respondent's attempt to rebut. za For purposes of review, Caron testified that on September 9, she had been assigned'duties again as a nurses aide , and this made her ex- tremely angry, and' she then informed Mary Mullane that they were doing these things to "agitate" them because of the Union and that she had not been hired to be a nurses aide, and that she "wasn't going to take any more of this crap," and then punched out and left The Respondent contends that she walked off the job because she had been assigned to work as a CNA due to shortage of staff I have rejected this contention 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is alleged that the -Respondent changed the hours of work and by such conduct caused the termination of Carole Lawson. Carole 'Lawson applied fors a position as an LPN -with the Respondent during the fall of 1979, but.because-she was a student at the time and was unable to work a•regu- lar schedule, the Respondent did not offer her a job. However, in January' 1980, the then- director of nursing again called Lawson, but once more she reiterated her inability to work a regular schedule and, in particular, to work every other. weekend. However, the director of nursing then hired Lawson with the understanding that Lawson was to call the Respondent every 2 weeks and indicate which days she would be available Thereafter, Lawson worked an average of 3 to 4 days per month and generally on the weekends She usually served as charge nurse on the second floor but, if one of the Re- spondent's regular LPNs or registered nurses (RNs) was scheduled to work at the same time and on the same floor as Lawson, she would do medications and treat- ments. It appears that-Lawson continued to work-on this basis until about October 10. Lawson voted in the-Board election conducted on Oc- tober 9, and at the conclusion of the election she went to the polling area to watch the counting of ballots-there were two large tables in the. room-one. was used by Local 113 representatives and the other was used by the Respondent's representatives, and Lawson sat 'at the Local 113 table. - The following day, October 10, Lawson was sched- uled as a medications aide on the second floor'and Peggy Tauzell, a part-time licensed practical nurse who normal- ly worked as charge nurse on the first floor, was sched- uled as the charge nurse on' the second floor. Lawson testified without contradiction that this • scheduling ar- rangement had never occurred previously. On October. 13, Lawson called Scheduling Coordina- tor Carole Cole to advise her that d inng the next 2 weeks she could only work on Saturday, October 24. Cole replied that she would have -to call her back, but about 5 minutes later Director of Nursing Juanita Reilly called, and informed Lawson that she could not work the Saturday in question and that nurses must work every other weekend. Lawson then told Reilly she was unable to do that for the reasons already known. Lawson testified-that "[a]l] she [Reilly] said was, that there had been a change, but she never did answer my question about if they needed me that day." Lawson further-testi- fied that in almost 2 years of employment„ she. had never previously been told not to come to work -on a day she was available.24 About October 23,° Lawson went to the Respondent's facility to pick up her paycheck and, in so doing, noted that a nursing pool LPN was scheduled to work in her 24 As indicated, unlike -other employees who preferred to have their weekends off, Lawson generally wanted to work only on the weekends Thus, the Respondent could utilize her services on an essentially on-call basis rather than rely on the far more costly services of a nursing pool LPN . . place for Saturday, October-24.25 She then also had a conversation with Lionel Jadoo informing him that she had wanted to work Saturday and wondered what was going on, but Jadoo just kept repeating to her-that his attorney said "he shouldn't be speaking to me "26 By letter dated October 27, Juanita Reilly informed Lawson that unless she 'agreed to work every other weekend; she was terminated as of October 27. Accord- ing to the letter the policy of= requiring- all.nursmgr.de, partment employees to work every other weekend had been implemented on September - 1-almost 2 months ear- lier. Counsel for the Respondent points out that Lawson was` an LPN who worked a very irregular schedule on a fill-in basis, and - when management determined that it must require all employees to work every other, weekend to meet patient needs and to eliminate favoritism, it iden- tified Lawson as one of those employees who should be required to work weekends and, accordingly, Lawson was asked to work weekends along with all other em- ployees,so situated As noted, the Respondent defends its action as to Lawson on the ground that it simply imposed on her the same requirement as applied to all other employees and, in support of this contention, the Respondent introduced a number, of memoranda concerning other employees who were told they had to start working every other weekend. The General Counsel argues that the dates of these memoranda in relation to other events are highly significant in evaluating the Respondent's defense-thus, the earliest memorandum (R. Exh. 13) concerns alleged discriminatee Mavis Cohenour and is dated September 1, but no further memoranda of this kind were written until September 18-the day after the first amended charge in this proceeding was served on the Respondent, and on that-day memorandums (R. Exhs. 9 and 10), concerning the weekend work of two employees, were drafted. On September 25, -another memorandum (R. Exh 16) was drafted, and on October 13, a memorandum '(R Exh 14), concerning Lawson, was drafted. The General Counsel further' argues that from the above the pattern that emerges is that the alleged every- other-weekend. policy was applied, to discriminatees Caron and Cohenour within a week following the August 27 meetings concerning the Union, as aforestat- ed-that the policy was not applied to any other employ- ees until immediately after the filing of the first amended charge; and that the policy was applied to Lawson only after the • Respondent learned of her support for Local 113. Moreover, that Carole Cole. admitted on cross-ex- amination that:the^ Respondent did not apply its.alleged every-other-weekend policy to Lee LeSage, an antiunion LPN, who, like Lawson, essentially wrote out her own 25 The Respondent's replacement of Lawson with a nursing pool LPN significantly increased the cost of care without providing any increase in the quality of care 26 On October 22, the Union filed its second amended charge This charge, which was served on the Respondent on October 23, specifically listed-Lawson as an alleged discriminatee ' ST' PAUL'S CHURCH • 1255 schedule until sometime after it applied the alleged policy to Lawson 27 What is most glaring in the situation and circum- stances involving Lawson is that she was one nurse who generally wanted and desired to work on Saturdays or weekends when the Respondent allegedly needed all the help it -could get, as many -other employees continually insisted that their weekends remain free Yet, after being specifically identified as a supporter of the Union, Lawson.is•'-then -discharged. when,,4at•'the same time, she was still able to work on certain Saturdays and, in so doing,- alleviating the shortage of help problems on weekends that management people were complaining about. ' In view of the foregoirig, and particularly in view of the timing of the application-of the alleged every-other- weekend policy to Lawson, the inconsistency in the ap- plication of that policy, and the Respondent's demon- strated animus toward employees who supported Local 113, a prima facie,case has been established that the Re- spondent discriminated against Lawson because of her, union activities; that the Respondent has failed to rebut the General Counsel's prima facie case, and that, there- fore, it is found that the Respondent, by imposing new scheduling requirements on Lawson, violated Section 8(a)(1) and (3) of the Act as alleged. Wright Line, supra.. Moreover, since the Respondent conditioned Lawson's continued employment on compliance with these require- ments, and since management was fully aware that Lawson was unable to do so, the Respondent also con- structively discharged Lawson on October 27 in viola- tion of Section 8(a)(1) and (3) of the Act, as alleged. ' It is alleged that in late August or early September the Respondent changed the hours of work of Mavis Cohen- our, issued her two written warnings, and about October 13 suspended Cohenour for.3 days. - Mavis Cohenour worked for the Respondent as a CNA from sometime in 1976 until she quit in December 1977 but, during the fall of 1978, the Respondent asked her to return It appears that Lionel ,Jadoo originally, proposed that she work 1 weekend per month but, after consulting with her husband, Cohenour turned down the job be- cause of the weekend work Administrator Jadoo then proposed that she work only 5 days 'per week and no weekends, and Cohenour agreed to return on this basis and did so in October 1978, and at the outset her hours were 6.30 a.m. to 3 p m. Cohenour lived approximately 50 miles from the Respondent's facility and did not have a driver's license, and rode to work each day ' with her husband who worked in'Minneapolis. However, it soon developed that since her husband did not have to be at work until 8 a.m., Cohenour was, frequently late for work, and for this reason, management agreed to change her starting time from 6.30 to 7:30 a.m., but her quitting, time remained the same and she was considered a part- time employee thereafter.-Following her husband's retire-. ment in 1979, Cohenour rode to work with her sons who '27 Later in her testimony Cole stated that during August , September, and October, nurse LeSage was working every other weekend However, the Respondent's own records disclose that LeSage worked I weekend in August, 1 weekend in September , and 1-1/2 weekends in October See G C Exh 3 - also worked at jobs in Minneapolis and whose jobs start- ed at 8 a.m. Cohenour continued working the same schedule until September, and she did not receive a driv- er's license until November. Cohenour attended the union meetings in August, signed an authorization card, and also testified that she distributed four or five cards to other employees Super- visors Carole Cole and Mary Mullane admitted that they were aware that Cohenour had leanings toward the Union. Cohenour was also the Union's observer, at the Board election on October 9 It appears that,sometime in early August, Assistant Di- rector of Nursing Mary Mullane gave Cohenour a verbal warning for failing to follow proper procedures for using a patient transfer belt. As a penalty Cohenour and two other, employees-one of whom was alleged discrimina- tee Julie Bailey-had $5 deducted from their paychecks for the pay period ending August 8 The three employ- ees then complained to management that ,the entire matter was based on a misunderstanding, whereupon Jadoo agreed to rescind the fine and refund their money Some time later-Cohenour was not sure of the date except that it occurred after the August 27 meetings- Director of Nursing Reilly gave Cohenour a written warning dated August 14 (G.C. Exh. 14). The warning concerned both the transfer belt incident and allegedly taking too -long on a break. 28 It was the first written warning Cohenour. had received throughout her entire employment.29 .Shortly after the August 27 meetings, wherein union matters were discussed with management, as aforestated, Reilly informed Cohenour that she would have to start working every other weekend. Cohenour testified.as fol- lows: Q What do you recall being said? A. She called me down and told me that I had to start working weekends because they were short of help. Q. Did you make a reply to that? A. I said I didn't believe her, I believed it was because I had something to do with the' Union, and Mr. Jadoo was trying to get me to quit Q Did she reply? A. She said that wasn't true, 'they were short of help and they needed me on the weekends. Q. Did you reply? A. I said I didn't believe her because I said I fig- ured this was Mr. Jadoo's, he knew I didn't want to work weekends and I threatened to quit if he ever made me work weekends. He had often asked me to 28 On the matter of taking too long a break, Cohenour testified,- "I tried to explain to her that when we came back from lunch we punched out on the second floor and a lot of times when you are coming by the desk, patients stop you and want you to do this or that, and you stop and help them and forget to punch in, and then you think of it later on and you go and do it She [Mullane) said yes, she understood " 29 The Respondent's records and testimony disclose that Cohenour was late, sick. or absent from work on 13 occasions in 1979, 14 occasions in 1980, and 13 occasions in 1981 but, as noted, Cohenour had never been reprimanded for any reason prior to the inception of the Union's organiz- ing campaign ' 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work weekends and I threatened so he said-he was only kidding So I told her, I believe this was his way of trying to' get rid of me, but I said I would be there if I had to walk - Cohenour testified that she and Reilly also discussed the same subject the following day. I asked her why he [Jadoo] was doing that to me, making me work weekends and she said that she was sorry, but they were so short they needed me. Then she asked me about the Union and I said yes, I was one of them. I thought it was my right. Then she said, "Well, you girls will never get what you think you are going to get:" Then she told me, be- sides, she had to make' me work weekends because there was a complaint that I hadn't had to work any weekends. I said- I didn't believe her and she said that one of the girls that I thought was my best friends was the one that complained. I asked her who and she said -Julie Bailey I said that she was trying to make enemies between Julie and I and that [Local 113 representative] Lorne [Johnson] had told us that they would do this. She said that Julie Bailey was a very good aide and she wouldn't want to lose'her - Although the matter had never been discussed with her, Reilly also changed Cohenour's starting time from 7:30 to 6:30 a m. and, since Cohenour had been riding to work with her sons who did not have to be at work until 8 a.m. each day, Cohenour was forced to stay with her mother in St Paul 5 days per week. Cohenour further testified that after August Jadoo's attitude toward her changed markedly. This record further shows that Cohenour served as the union observer at the Board election on October 9 and, following the election, Lionel Jadoo approached her and told her as follows - A He [Jadoo] came in and wanted to shake hands. He said we should let.bygones be bygones and he hugged me and kissed,me on the cheek and I told him that I was ready to let bygones be by- gones. He said we should get back to work, like we had been. I said fine, that was fine with me, I only did what I thought was right. He took me by the hand and said, come on, let's go upstairs and see Donna Gilsdorf. So we went to the stairway and we got in the stairway and I said, I told him I would never had joined the Union if he wouldn't have started to mess around with my hours and weekends. He said he knew, but his lawyer told him to. Then I said, well, you know I am going to fight you to get my weekends back and he said, I know, let's go see Donna. We went up and he put his arms ,around Donna and told her the same thing he told me. About October 11 Reilly issued Cohenour a 3-day sus- pension for allegedly overextending her break by 5 min- utes (G.C. Exh. 15). Cohenour denied having been late on the occasion in question. She also testified that Jadoo had told them "lots of time" that as long as they had fin- ished this work, he did not mind if they sat an extra 5 minutes or so longer. Counsel for the Respondent points out that in August Cohenour was issued a warning for failure to wear a transfer belt, as required by the Respondent for patient safety, and also for taking overly long lunch hours. In October she received another warning for overly long breaks and was suspended without pay for 3 days. Both warnings were based on the observations of Mary Mul- lane, assistant director of nurses, and both instances were clear violations of the Respondent's policies Moreover, Cohenour's first warning was given before the Respond- ent had any knowledge of union activities, and the second warning was given because of a clear violation of policy, even after the administrator had spoken to all nursing staff about the importance of being on time. The General Counsel introduced evidence of a number of previous warnings issued to Cohenour regarding ab- senteeism and tardiness, but which 'did not result in any previous suspensions, as aforestated. The Respondent does not dispute those instances of absenteeism and tardi- ness existed or that no discipline was given at that time. However, as further argued by the Respondent, the record is clear that, beginning in the summer of 1981, management was embarked on a program of more care- fully and consistently enforcing its personnel policies. This program was a result of an internal review of per- sonnel files in May, as well as a complaint of favoritism in scheduling and discipline registered by Julie Bailey in late July. As a result, a system of monitoring absentee- isms and other violations of personnel policies was insti- tuted and the progressive discipline system began to be enforced in earnest beginning in early to mid-August, prior to the Respondent having any knowledge of union activities, and it continued that course after union activi- ties became apparent. Counsel for the Respondent further acknowledges that, at some point during late August or early Septem- ber, Cohenour was also asked to begin work at the normal starting time for nursing staff-6.30 a.m. rather than at 7.30 a.m., as she had been formerly permitted to do for family reasons She was also requested to work, every other weekend as was the normal scheduling pat- tern for all other employees in the nursing department., Two factors led to-that requirement: the first was the same, as discussed above with regard to the warning she received for overly long breaks, and the second factor, involved was the need for greater coverage of nursing staff to meet the requirements of the patients in the morning and on weekends. Moreover, at the time the Respondent resolved to require all employees to work every other weekend, it came to light that five employ- ees in the nursing department were not being so sched- uled (Caron, Cohenour, Tauzell, Lawson, and Corcoran). When this information was brought to light after the complaint registered by Julie Bailey, management re- sponded by taking steps to monitor discipline and to es- tablish consistent scheduling patterns This record clearly ST PAUL'S CHURCH 1257 shows that each employee who was not working the general schedule was requested to do so 30 Counsel for the Respondent explains that Cohenour had been permitted to begin work at 7:30 a.m., rather than 6:30 a m., because she lived in Wisconsin and rode to work with her husband who was unable to get her. to work by 6.30 a in. When it came to the attention of the Respondent's administrator that she had her own trans- portation beginning some time in August, the special rea- sons for permitting her to start work at 7.30 a.m had ap- parently been eliminated and she was requested to begin work at 6.30 a.m , as other employees were In conclusion, counsel for the Respondent points out that "perhaps"•Cohenour had been one of the favored employees that Julie Bailey complained about on July 31, and that, as such, when the Respondent resolved to treat all of its employees more consistently, some of the spe- cial privileges she enjoyed were no longer available to her. Again the record is clear that the Respondent deter- mined to take these steps with regard to all employees, regardless of union leanings, and had determined to take this course of action prior to any knowledge of union ac- tivity It then continued on its course, even though union activity began about the same time it started to take action. Counsel for the Respondent contends that the Re- spondent's policies were -enforced evenhandedly and without regard to union activities. Turning now to my final conclusions about Cohenour. First, in regard to the change in Cohenour's starting time, Scheduling Coordnator Carole Cole admitted on cross-examination that Cohenour was the only part-time employee whose hours were changed during the relevant time period, and that the Respondent continued to permit other employees (so-called short shift employees) to work on a part-time basis with different hours. Second, as to the weekend change, Lionel Jadoo ad- mitted that he solicited Cohenour to return to the Re- spondent's employ, but then testified that, he permitted her to do so only with the understanding that her no- weekends schedule was "temporary." However, it is noted that this alleged, and now -so-called temporary ar- rangement and schedule lasted for about 3 years. Similar- ly, Jadoo's unsolicited testimony that' Cohenour told him she was driving to work without a license is not cred- ited. Cohenour testified that she did not get a driver's li- cense until November and never drove a car without a license. For present purposes, and even assuming that Cohen- our (and alleged discriminatee Bailey) violated the Re- spondent's transfer belt policy in early to mid-August, the facts remain that Jadoo recognized that this infrac- tion was based on a misunderstanding of the policy and that he rescinded the discipline However, shortly after the August 27 meetings relative to the Union, Reilly pre- sented Cohenour with a written warning concerning the belt incident and for allegedly taking too long on a break. Two days after Local 113 won the election, Reilly then suspended Cohenour for 3 days.for allegedly taking too long on a break. Since Reilly did not testify, the only 30 See R Exhs 9, 10. and 12-16 evidence about her motivation in.issuing this suspension is the disciplinary notice itself. In the final analysis, this record reveals that the Re- spondent wanted very much for Cohenour to return to its employ in 1978, and she accepted only on the condi- tion that she would not' be required to work weekends 31 Thereafter, Cohenour worked as a part-time employee with all weekends off for almost 3 years prior to August, but within days after the'Respondent learned that Local 113 had demanded recognition, Reilly then told Cohen- our on two occasions that she would have to work weekends-also on the second occasion, Reilly • ques- tioned Cohenour concerning her union sympathies, in violation of Section 8(a)'(1) of the Act I am in agreement that the only plausible reason for requiring Cohenour to begin working weekends at that particular time is that the Respondent expected her to quit as a result.32 As suggested by the General Counsel-, if working weekends was not enough, then disciplining her, suspending her, and requiring Cohenour to start work earlier-thereby depriving her of her ride to work-surely would be enough, but obviously the Respondent underestimated Cohenour's fortitude. Counsel for the Respondent maintains that beginning in the summer of 1981, prior to any union activity, man- agement embarked upon the program to more consistent- ly enforce its personnel policies and that Cohenour was one of the employees so affected. Even assuming or ac- cepting such facts, it nevertheless appears clear to me that, in carrying out this new enforcement program, the real motivation in assigning penalties and discipline in connection therewith was the consideration of whether the employee was anti or pro union Cohenour was defi- nitely prounion and the Respondent was well aware of it. Even Jadoo recognized this situation when he agreed with Cohenour in their conversation following the Board election to the effect that she never would have pressed her union activity if management had not started "to mess around" with her hours and weekends Jadoo re- plied that "he knew," but had been advised otherwise. In the situation here, Cohenour had an unblemished disciplinary record covering several years of employ- ment and admittedly was a hard, working nurse and if late, absent, or tardy nothing was said or done about it prior to her union activity. The changes in her hours and the discipline imposed on her occurred shortly after the inception of the Union. The credited evidence shows that the written warning for, the alleged violations of'the transfer belt.and break policies was given to Cohenour after the August 27 union meetings, but concerned events occurring prior to those meetings Moreover, and particularly in view of the timing of the imposition of the (alleged) every-other; weekend ,policy on Cohenour, the inconsistent application of that (alleged) policy to other employees, and the fact that the Respondent offered no direct evidence as to Reilly's actual motivation in disci- 3i. Jadoo admitted that Cohenour was a good employee and a hard worker 32 It will be recalled that Cohenour testified that on several occasions' Jadoo asked her if she'would work weekends On each occasion Cohen- our threatened to quit, and Jadoo then replied that he was just kidding 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plining and suspending, the Respondent has failed to es- tablish that it would have taken the same actions in the absence of Cohenour's union activity Wright Line, supra. Accordingly, it is found that the Respondent changed Cohenour's hours, and disciplined and suspended her, in violation of Section 8(a)(1) and (3) of the Act, as alleged. It is alleged that on September 8 the Respondent dis- criminately discharged Julie Bailey. Julie Bailey was employed by-the Respondent as a CNA from 1979 until September 8 As noted previously Bailey was one of the original employees instrumental in the Union's organizing campaign and identified herself as a Local 113-supporter at the first of the August 27 meet- ings. She also signed an authorization card for the Union and distributed cards to other employees. In fact, Sched- uling Coordinator Carole Cole admitted that she was aware that Bailey was for the Union and, on cross-exami- nation, Mary Mullane admitted knowing that Bailey was a strong supporter of the Union - Sometime toward the end of July, Bailey and Director of Nursing Juanita Reilly met to discuss Bailey's work evaluation ratings. Reilly then informed Bailey that she would get a 5-cent-per-hour raise (the maximum being 10 cents), but she needed to bring in a medical history from her doctor. As noted, the evaluation form completed by Reilly indicates complete and.full satisfaction with the quality of Bailey's work, and Reilly even wrote on the evaluation sheet that Bailey was an "Exceptional worker-An Asset to [Respondent]-cooperative, will- ing--well liked by patients" (G.C. Exh. 6). Bailey also discussed the evaluation form with Administrator Jadoo and, in so doing, protested that she deserved a larger raise, that others had been tardy or absent as often as she had, and that it was unfair to penalize her and not others as well. It appears that on September 8, the date of her dis- charge, the morning schedule began as it generally did, but on this day Bailey had 11 patients to take care of whereas usually she was assigned 7 or 8. Prior to 7:30 a.m, Bailey checked up on a patient named Selina Quinn and found her asleep. Breakfast trays then began arriving on the floor about 7-30 a.m and, although each of the CNAs had specific residents assigned to them, they nor- mally distributed the trays without regard to these as- signments. In accordance therewith, Bailey and the other CNAs passed trays and helped feed residents until about 9 a.m. Shortly thereafter Bailey stopped by Quinn's room for the second time, but again found her sleeping and she then went on her morning break. Following the break, Bailey returned and saw that Quinn's call light was on and accordingly went to her room and -found Charge Nurse Teresa Hill taking Quinn to the bathroom. Hill then asked Bailey if she knew whether Quinn had re- ceived a breakfast tray. Bailey replied ' that she did not know, and Hill then said the same thing had happened the day before. Bailey and Hill then cared for Quinn and ordered a breakfast tray -for her. By 'this time it was about 9.30 a.m. At noon that day, Assistant Director of Nursing Mary Mullane asked Bailey to come to her office. Mullane gave Bailey a written warning (G.C. Exh., 9) concerning Quinn's failure to receive her breakfast. Bailey told Mul- lane that she felt the discipline was unfair and refused to sign the warning notice. Mullane said she did not know what would happen as a result of Bailey's refusal. Bailey then asked what she meant and Mullane replied that Bailey might be terminated Bailey and Mullane- then went to the business office to make a copy of the warn- ing notice, at which time Mullane told Bailey that Juani- ta Reilly might want to speak with her but, after check- ing with Reilly, Mullane told Bailey to go to lunch. Later in the day, Reilly called Bailey in and told her that she had been going through Bailey's file, and then gave her a second warning (G.C. Exh. 10) concerning tardiness. Reilly also gave Bailey a termination notice (G.C. Exh. 11) which listed Bailey's previous warnings and which set forth the reason for the termination- You are being terminated as of September 8, 1981 for the following infractions- You have been absent 11 times since 1-8-81. You have been late 8 times since 1-1-81. Reilly then told Bailey that she was terminated. Bailey subsequently -received a copy of a separation form (G.C Exh. 13) completed by the Respondent and sent to the State of Minnesota concerning Bailey's eligibility for re- ceiving unemployment compensation benefits. The form indicated that Baily had been "discharged for absentee- ism-tardiness," and Bailey was subsequently denied un- employment benefits. The claims deputy found that Bailey had been discharged "due to patient neglect" (R. Exh 6). Bailey did not appeal this finding and no hearing was ever held. It is the contention of the Respondent that Bailey was discharged because she failed to give morning care to a patient assigned to her by 9 a.m., when she then went on a break. Both Mary Mullane and Lionel Jadoo testified that such an occurrence was contrary to the Respond- ent's,patient care policies, contrary to State Health De- partment regulations regarding the timing of meals, and contrary to the Patients' Bill of Rights, and that this con- duct, under the Respondent's policies, was grounds for immediate termination without prior warning, and that Bailey could have been terminated on that basis alone. It is also the Respondent's position that Bailey was as- signed a normal load of patients on the day here in ques- tion, but she failed to ensure that the patient, Selina Quinn, was awakened and prepared for breakfast, as re- quired by state law and the Respondent's policies, and that such behavior constituted gross misconduct, punish- able by immediate termination. Mary Mullane testified that she would have responded to any other similar inci- dent in like manner had such a situation been brought to her attention but, with the exception of the incident with Bailey, no such incident had been brought to her atten- tion It is pointed'out that this instance was brought to the attention of Mullane by the dietary supervisor who was keeping track of the patient's intake for medical rea- sons, and it was not reported by the nursing supervisors. Such circumstances may be responsible for the fact that ST PAUL'S CHURCH - . - 1259 other- purported similar incidents were not dealt with in a similar fashion by management.33 It is further noted by the Respondent that Bailey had received a number of previous warnings for other viola- tions of the Respondent's policies. Carole Cole, as staff- ing coordinator, had occasion to handle all nursing em- ployee timecards, and she testified that it was only Bailey and one or two other employees, who seemed to fail to deal with their timecards appropriately. Moreover, that at least two of the warnings received by Bailey were prior to any knowledge -of ' union activity and, when the incident with regard to patient neglect` was added to that record on September 8, it was clear that the only action to be taken was termination. In summary, counsel for the Respondent points out and argues that Bailey was discharged for actions which would constitute grounds for immediate discharge, even if no prior warnings had been in her file; but, in- fact, Bailey had a number of previous warnings which the Re- spondent, in its new program of consistent enforcement of personnel policies generated. Ironically , at least in part, the Respondent did so because of Bailey's own complaints with regard to favoritism. Turning now to my final conclusions. Assistant Direc- tor of Nursing Mary Mullane testified that she -regarded the Quinn and Bailey incident as "gross patient neglect," but Caron and Schmidt said that it happened quite often. Moreover,' Mullane could recall on cross-examination very little about the actual circumstances of Bailey's dis- charge. For example, Mullane first testified that she ter- minated Bailey, but later testified that she could not re- member whether she or Reilly terminated Bailey 'that it was a point decision, that she told Bailey on the morning of September 8 that it was possible she would be termi- nated, that she could not recall when during the day the conversation occurred; that she could not recall what happened after this conversation; that she did not know whether Reilly talked to Bailey thereafter; and finally that it was Respondent's policy to terminate employees after the third warning. As more fully detailed by the General Counsel,' it' is clear from this record that Juanita Reilly made the deci- sion to terminate Bailey. Thus, in evaluating the Re- spondent's real motivation, particular attention must be paid to what Reilly said and did contemporaneously with the discharge. As noted previously, Reilly gave Bailey a glowing evaluation in July and within-,a few days prior to Bailey's discharge, Reilly told Mavis Cohenour that "Julie Bailey was a very - good aide and - she [Reilly] wouldn't want to lose her." At this point in time Reilly must have been aware of any absenteeism or tardiness problems Bailey may have had. As also indicated, in view of Reilly's excellent evaluation of Bailey and her statement to Cohenour, it is obvious that the Respondent had condoned whatever problems may have existed, and although the incident involving Selina Quinn occurred 33 Sharon Caron testified that residents or patients sometimes missed breakfast on the average of about once a week-"sometimes once a day, it varied " Kathi Schmidt testified that patients would miss breakfast once or twice a month , and she was not aware of any employee being disci- plined as a result of it When discovered , the kitchen was contacted and a tray would then be sent up on September 8, the record is clear that this was not. the reason for Bailey's discharge. Rather, as established by Bailey's termination notice and separation form, Reilly actually discharged Bailey for absenteeism and tardiness and, in doing so, Reilly departed from the Respondent's practice, as testified to by Mullane, to terminate on the third warning concerning a-violation As pointed out, the warning notice (G.C. Exh 10), concerning . tardiness and absenteeism that Reilly gave Bailey on September 8, spe- cifically -indicates that it was a second warning There- fore, by the present contention that Bailey was dis- charged because of the Selina Quinn incident , the Re- spondent is exhibiting shifting defenses , and to the extent that the Respondent is claiming Bailey was discharged for absenteeism and tardiness, it is departing from its own policy of discharging -on the third occurrence In the final analysis, Bailey had worked for the Re- spondent' for several years and was extremely' well thought of as duly reflected in her most recent evalua- tion rating . She was also a . strong supporter for the Union and management admittedly knew it. About this time her problems started Moreover, the. Respondent's defenses are shifting ,- as aforestated, and since in dis- charging Bailey, the Respondent departed for its own third-warning policy , it must be concluded that the. de- fenses are pretextual . Accordingly , I have found that Bailey's discharge violated Section 8(a)(1) and (3) of the Act.34 IV. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I' shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act- - Having found that the Respondent discriminatorily dis- charged"Julie -Bailey, Carole Lawson, and Sharon Caron, I shall recommend that the Respondent offer them imme- diate and full reinstatement to their former or substantial- ly equivalent positions, without prejudice to their seniori- ty or other rights and privileges,- and make them whole for any loss of earnings they may have suffered by 39 It should be noted that all facts found herein. are based on the record as a whole and on my observation of the witnesses The credibil- ity resolutions have been derived from a review of the entire testimonial record and exhibits with due regard for the logic and probability, the de- meanor of the witnesses, and the teaching of :VLRB v Walton Mfg Co, 369 U S 404 (5th Cir 1961) As to those witnesses testifying in contradic- tion of the findings herein, their- testimony has been discredited, either as having been in conflict with the testimony of reliable witnesses or be- cause it was in and of itself incredible'and unworthy of belief All testimo- ny has been reviewed and weighed in the light of the entire record It should also be noted that in several, instances I have not credited the testimony of the Respondent's witnesses where there was a basic conflict in events and circumstances-their testimony in such areas revealed considerable discrepancies and was also inconsistent at times, and certainly without the ring of sincerity, as frequently demonstrated by the witnesses for the General Counsel Carole Cole gave highly inconsistent answers on cross- examination, in several instances Mary Mullane could not recall with any specificity what actually took place and especially in relation to the dis- charge of Bailey. Lionel Jadoo struck me as quite unsure and evasive on occasions, and Juanita Reilly, who was directly or indirectly involved with almost each incident, did not testify In certain instances the unde- med statements and actions attributed to Reilly in themselves tended to prove the General Counsel's case, as all previously set forth and detailed herein 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason of the discrimination against them by payment of a sum of money equal to that which they would have normally earned from-the date of their discharges, less net earnings , during said period . All backpay provided herein shall be computed with interest on a quarterly basis, in -the manner described by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest computed in the manner and amount prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977) 35 In the .same manner make whole Mavis Cohenour for her 3-day dis- criminatory suspension - CONCLUSIONS OF LAW 1. -The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Willie ' Sager and Sue Daul are agents within the meaning of Section 2(11) of the Act. 4. By engaging in conduct described in section III, above, the' Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed36 ORDER The Respondent, St ' Paul's Church Home , Inc., St. Paul, Minnessota, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Interrogating employees regarding union activities, memberships, and sympathies. (b) Threatening employees with loss of benefits be- cause of their union activities. (c) Promulgating and/or enforcing policies selectively and disparately in the posting of notices in a manner cal- culated to interfere with their Section 7 rights (d) Freezing its employees ' wages because of their union or other concerted protected activities. (e) Creating the impression of surveillance of employ- ee union activities. (f) Informing cr admitting to employees that- their hours and. duties have been changed because - of their union activities and/or telling employees that the Re- spondent has discriminated against them because of their union activities. (g) Informing employees that an announced wage in- crease could - not be given because of union activity, and revoking such wage increases. (h) Changing the hours and/or duties of its employees, suspending , giving warning notices , discharging, or oth- erwise 'discriminating against its employees because they engage in union or other protected activities. (i) In any like or related manner interfering with, re- straining, or coercing employees -in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Julie Bailey, Sharon Caron, and Carole Lawson immediate and full reinstatement to their former jobs and make them whole for any loss of pay and other benefits in the manner set forth in the remedy section, and in the same , manner for the illegal suspension of Mavis Cohenour. (b) Make its employees whole for losses suffered as a result of the Respondent 's revocation of the across-the- board wage increase announced on August 27, 1981 (c) Reestablish the position of certified -medication aide so as to fully reinstate employees Kathi Schmidt and Sharon Caron to those duties and to that position and with their normal hours of work, and likewise reestablish the normal hours of work for Mavis Cohenour. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. - (e) Remove from its files and records any references to the discharges of Julie Bailey , Sharon Caron, and Carole Lawson, the suspension of Mavis Cohenour, and the last two written warnings given to Mavis Cohenour and Julie Bailey, and notify them- in writing that this has been done and that evidence of these unlawful actions will not be used as a-basis for future discipline against them (f) Post at its facility in St. Paul, Minnesota, copies of the attached notice marked "Appendix."37 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 35 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 36 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses - • 31 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"