Regency Manor Nursing Home

REGENCY MANOR NURSING HOME ' ` Jean Foust, Sole Proprietor, doing business ' as'Re- gency Manor Nursing Home and United Food and Commercial Workers International Union, Local 1099, AFL-CIO-CLC. Cases ' 9-CA-. ,19047 and 9-RC-14151 31 July 1985 DECISION AND-ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On- 8 December 1983 Administrative Law Judge Robert W. Leiner issued the attached decision. The Respondent filed exceptions and a.supporting 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 brief and has- decided to affirm the judge's rulings,, findings,' and conclusions and to adopt the • recommended Order as modified. We agree with the judge that the Respondent committed. various violations of Section. 8(a)(1),2 unlawfully discharged Melvin Hughes and Nancy. Helton,3 and unlawfully, coerced employees into accepting "supervisory" -positions ina scheme to undermine union support among employees and to interfere with the employees' right to vote in the Board-conducted election. We also agree that the challenges to the ballots of Melvin Hughes, Nancy Helton,-Joyce Miller, and Beverly Smith should be overruled and their ballots opened and counted.4 Finally, we agree that the Respondent should be ordered to bargain with the Union in the appropri- ate unit.5 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless-the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB '544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings - 2 We shall correct the judge's recommended Order. to reflect his find- ing, with which we agree, that the 'Respondent' unlawfully threateiied to close its doors in the event of a strike - - ' ' - ' 3 In discussing Helton's discharge, the judge misstated the Board's Wright Line test Under that test, once the General Counsel makes out a prima facie case of discrimination, the burden shifts to the respondent to demonstrate that it would have taken the same action even in tfie'absence of the employee's protected activity Wright Line, 251 NLRB 1083, 1089 (1980) Despite that misstatement, the judge's analysis and conclusion were correct - 4 In overruling the challenges to' the ballots of Miller and Smith, we rely on the judge's finding that neither Miller nor Smith assumed supervi- sory duties despite the' Respondent designating them supervisors' In so doing, we do not rely on the judge's discussion of Stotler Industries; 244 NLRB 144 (1979) 5 We modify the Judge's decision to date the bargaining obligation as of the first unfair labor practice (30 September 1982), rather than the Union's demand for recognition (13 September 1982) Pope Maintenance Corp, 228 NLRB 326 fn 2 (1977) In addition, we shall modify the rec- ommended Order to provide that the Union is entitled to both a bargain- 1261 We do not agree, however, with the judge's rec- ommendation - that -the challenge to Sharon Strause's ballot should be overruled. As found- by the judge, Strause was not coerced into accepting the, position of resident care coordinator and that position clearly was vested with supervisory au- thority. Accordingly, we find that Strause was in- eligible to vote in'the election and the challenge to her ballot is sustained. In addition, we disagree with the judge's findings that-Chief Administrator Pat Schroer's statements to various employees that they could lose benefits if they chose to be represented by the Union were unlawful. Our review of the record reveals that these statements were made in the context of a de- scription of the give and take of future collective bargaining. Thus, Schroer told employees that the bargaining process could yield losses of current benefits in exchange for gains of other benefits. Viewed,in. its proper context, we find such a state- ment lawful.6 ORDER The National Labor Relations Board adopts the recommended Order of - the administrative law judge as modified below and orders that the Re- spondent, Jean Foust, Sole Proprietor, doing busi- ness as Regency' Manor Nursing Home, Independ- ence, Kentucky, her agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. - 1. Substitute the following for paragraph 1(c). "(c) Threatening employees with discharge or change of jobs for ' assisting or supporting the Union or any other labor organization; threatening employees that it would close its doors in the event of. a - strike; promising or granting benefits to em- ployees to induce them to refrain from supporting the Union or any other labor organization; creating and, by threats and coercion, assigning supervisory job classifications to employees in order to under- mine union. support among -employees or in order to, interfere with their right to vote. in Board-con- ducted -elections." . , - mg order and a certification of representative in the event the revised tally of ballots shows that it won the election See Gordonsville Industries, 252 NLRB 563, 604 (1980), and the cases it cites In finding a bargaining order appropriate Chairman Dotson relies par- ticularly on'the finding that the Respondent concocted and implemented a scheme whereby it sought to and did coerce employees into accepting "supervisory" positions in an effort'to preclude prounion employees from voting in the election Such actions seriously impair the integrity of the Board's electoral process, making it highly unlikely that a free and fair election could be held - Member Johansen agrees that a bargaining order is appropriate and finds it unnecessary to .pass on the standards espoused by Member Dennis c See Hasa Chemical, 235 NLRB 903, 908 (1978) 275 NLRB No. 171. 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Substitute the following for paragraph 2(b).. "(b) Recognize and,. on request, bargain with the Union as the exclusive representative of the em- ployees in the- appropriate unit set forth above on terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement." 3. Substitute the following for the paragraph fol- lowing 2(f). "IT IS FURTHER ORDERED that the challenges to the ballots of Melvin Hughes, Nancy Helton, Joyce Miller, and Betty Smith having been overruled, they shall be opened and counted and a revised tally of ballots be issued and served upon the par- ties. If 'the tally shows a majority vote for the Union, then the Union shall be certified as repre- sentative in the above appropriate unit. If the re- vised tally fails to show that the Union has 're- ceived a majority of the valid ballots counted, the election shall be set aside and the representation case dismissed. See Gordonsville Industries, 252 NLRB 563, 604-605 (1980)." 4. Substitute the attached notice for that of the administrative law judge. MEMBER DENNIS, concurring. I join my colleagues in adopting the judge's deci- sion with the exceptions stated in the majority opinion. I also agree, for the reasons set forth below, that a bargaining order is appropriate. Former Chairman Miller observed more than a decade ago, and it remains true today, that no deci- sional task "has more perplexed this Board, or con- founded the courts which' review our decisions," than determining "whether an order to bargain is an appropriate remedy for employer interference with rights protected by Section 7 of the Act." General Stencils, -195 NLRB 1109, 1111 (1972) (dis- senting opinion). ' The difficulty is due largely to the unique and general standards we must use. First, in "exceptional" cases of "outrageous" and "pervasive" unfair labor practices, a bargaining order is justified because traditional 'remedies cannot eliminate the coercive effects of the miscon- duct, and a fair election cannot be held. NLRB v. Gissel Packing Co., 395 U.S. 575, 613-614' (1969) (hereinafter Gissel category 1 cases). Second, in "less extraordinary cases marked by less pervasive practices," the Board may consider "the extensive- ness of an, employer's unfair labor practices in terms of their past effect on' election conditions and the likelihood of their recurrence in the future." If "the possibility of erasing' the effects of past prac- tices and of ensuring a fair election (or fair rerun) by the use of traditional remedies, though present, is slight, and . . . employee sentiment once ex- pressed through cards would, on balance, be better protected -by a bargaining order, then such, an order should issue . .. . ." • Id. at 614-615 (Gissel category 2 cases).' Finally, in cases of "minor or less extensive unfair labor practices," a bargaining order is not justified. Id. at 615 (Gissel category 3 cases). The Board has not made its perplexing task any less difficult by its proclivity- for issuing or not issu- ing bargaining orders "without .rhyme, reason or differentiating factors other than . . . conclusory statements."2 The result has been inconsistent deci- sions, arbitrary results, and repeated circuit court refusals to enforce Board bargaining orders on the ground that they lack reviewable standards and analysis.3 Accordingly, I find -if necessary to out- line, in necessarily broad terms,-.my views on how the Board should determine whether a bargaining order is appropriate.4 In -my opinion, whether a bargaining order is ap- propriate depends. principally on two factors:' (1) the nature of the violations committed, and' (2) the pervasiveness of the violations. In Gissel category 2 cases, a third factor may, be-considered: develop- ments after the violations were committed' that mitigate the need for a bargaining order. 1. HOW TO DETERMINE WHETHER A BARGAINING ORDER IS APPROPRIATE A. The Nature of the Violations Committed Over the years, a consensus has developed that certain violations of the Act are highly coercive: These so-called hallmark violations include plant closings, threats of plant closure or loss of employ- ment, discharge or other serious adverse action against union adherents, and grants of significant benefits to employees.5 Because of the seriousness of the conduct, hallmark violations "may reason- ably be calculated to have a coercive effect on em- ployees and to remain in their memories for -a long period."6 In addition, hallmark violations are par- ' In both Gissel category 1 and 2 cases,'proof of majority status is re- quired before a bargaining order can issue See my concurring opinion in Gourmet Foods. 270 NLRB 578 (1984) 2 NLRB v Jamaica Towing, Inc, 632 F 2d 208, 215 (2d Cir 1980) 3 See, e g , Jamaica Towing, supra, NLRB v Armcor Industries, 535 F 2d'239 (3d Cir 1976), Peerless of America, Inc v NLRB, 484 F 2d 1108 (7th Cir '1973), NLRB v. Kaiser Agricultural Chemicals, 473 F 2d 374 (5th Cir 1973) 4 My views draw extensively on former Chairman Miller's dissent in General Stencils, supra, and the Second Circuit's opinion in Jamaica Towing, supra See Jamaica Towing, 632 F 2d at 212-213, General Stencils, 195 NLRB at 1112-13 (dissenting opinion) 6 Jamaica Towing, 632 F 2d at 212-213 As- former Chairman Miller stated, the grant of significant benefits and the discharge of principal union adherents demonstrate that the employer 'will oppose the union by unlawful means and that employees who support it do so at their grave peril The message is communicated to all by means which will be clear 4 Continued REGENCY MANOR NURSING HOME 1263 titularly resistant to traditional remedies . Unlawful- ly discharged employees typically are not offered reinstatement for-months or even years , and "thus the coercive effect of the discrimination is unlikely ever to be undone ."7 Similarly, because Board orders do not require the recision of unlawfully granted benefits such as wage increases , the effect of the employer's misconduct is not erased. By contrast , less serious violations, such as inter- rogations, promises of benefits, threats of loss of benefits, and unlawful expressions of antiunion re- solve, are not necessarily charged with as coercive and longstanding an effect . The substance of the re- marks, while unlawful , is less grave than a threat of plant closure." In addition, "talk" is generally less likely to be taken as seriously as actions . Employ- ees may disbelieve promises of benefits or they may view them as an expected ploy or stratagem. Threats of loss. of benefits may be discounted by employees who view unionization as an effective, means of combating such tactics . Although such conduct is unlawful , one cannot presume a lasting. effect on election conditions.9 Because non-hallmark violations are less serious, they "must either be numerous or be coupled with some other factor intensifying their effect before they will fall within Gissel's second category and support an order to bargain."10 B. The Pervasiveness of the Violations As discussed above, hallmark violations are highly coercive and have a lasting effect on em- ployees. " [E]ven with ' respect to these `hallmark- violations,"' however, "a bargaining order may be denied for lack of proof of pervasiveness . . . ." I 1 to all In the matter of employer resistance to employee rights, actions do indeed speak louder than words" General Stencils, 195 NLRB at 1112-13 (dissenting opinion ) While hallmark violations often involve completed • actions rather than statements , certain remarks (such as . threats of plant closure) rise to the hallmark level Thus, although a threat of plant clo sure does not involve completed action, it is "more coercive than any other threat," because it "is the one serious threat of economic disadvan- tage which is wholly beyond the influence of the union or the control of the employees " Such a threat "has long been recognized as a uniquely destructive tool " Id at 1113 7 General Stencils, 195 NLRB at 1112 (dissenting opinion) 8 See discussion of plant closing threats in fn 6, supra 9 See Jamaica Towing, 632 F 2d at 214, General Stencils, 195 NLRB at 1113 (dissenting opinion ) Former Chairman Miller's General Stencils dis- sent identifies three related questions that-are useful in evaluating threats I What actions were threatened' 2 Were the threats likely to be seriously regarded' (This question entails an examination of the source, deliberateness , and specificity of the threats ) 3 Were the threats widely disseminated'' • 195 NLRB at 1113-14 The first item pertains to what I call the "nature of the violations" factor, the second and third items involve principally the "pervasiveness" factor 10 Jamaica Towing, 632 F 2d at 213 i i Jamaica Towing, 632 F 2d at 213 The "pervasiveness" factor is a recognition that even hallmark violations can vary in their impact upon election results . Common sense and- experi- ence dictate that the 8 (a)(3) discharge of a relative- ly inactive union adherent in a unit of 500 employ- ees is unlikely to have the same impact as the dis- charge of the principal employee organizer in a 20- person unit . A plant closure action is all-pervasive; a single plant closing threat by a first-line supervi- sor may not be. In weighing the pervasive effect of a violation, relevant considerations include the identity of the perpetrator of the unfair labor practice , the size of the unit, the' number of employees directly affected by the violation , and the extent of dissemination among the work force. Because the critical question 'in all bargaining order cases is whether a fair-election can be held, I believe proof that the violations committed were disseminated among employees is a particularly im- portant aspect of the General Counsel 's case. Un- fortunately , the Board presumes dissemination, a practice former Chairman Miller justly criticized as making "no sense," as follows:' I am unwilling to engage in the presumption, of my colleagues, and put the Respondent to the impossible burden of showing the absence of dissemination. In evidentiary terms, it makes no sense whatever to permit the only witness who heard a threat to testify that the threat was made but to remain silent on the question whether, he disclosed the' threat to any other employee . A chain of dissemination is a rela- tively easy matter to establish through testimo- ny, of employees who participated in the trans- mission., But nondissemination is virtually im- possible to prove except by the denial of most or all of the employees in the affected group.12 . While I ' agree in principle with former Chairman Miller' that the General Counsel should prove dis- semination, there , are cases in which the number of violations, relative to the unit size , warrants a bar- gaining order without proof of dissemination. C. A Factor in Gissel Category 2 Cases: Mitigation If hallmark violations of pervasive effect are proven, and those violations are "outrageous" within the meaning of the first Gissel category of "exceptional" cases, a bargaining order should issue . As the Second Circuit stated in a recent, post-Jamaica Towing opinion, "Our decisions . . . have always recognized, as, indeed , the Supreme i2 General Stencils , 195 NLRB at 1114 (dissenting opinion) 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court's holding in . . . Gissel . . . compelled, that extensive analysis of other factors is not required as a condition of issuing a bargaining order in cases falling within [Gissel's] first category . . . ." 13 In cases not falling within the first Gissel catego- ry, however, postviolation developments that miti- gate the need for a bargaining order may be con- sidered. Three types of mitigating developments have been specified: (1) changes in management; (2) employee turnover; and (3) passage of time.14 In considering mitigating developments, the Board should remember that a bargaining order is an' extraordinary remedy and that an election is the preferred method for determining whether employ- ees desire representation. As the Jamaica Towing court explained, "[T]here are cases where later rel- evant events are not of the employer's making and may, if ignored, result in unnecessarily thwarting the genuine desires of the current work force. If a new election would reliably reflect genuine, un- coerced employee sentiment, it does not reward the employer to hold one. Instead, it `effectuates employee rights,' as-Gissel requires . . . .°> 1 s On the other hand , the "mitigation" factor should not reward employer misconduct. Turnover that the employer causes cannot count as mitiga- tion, and prolonged litigation should not automati- cally yield an escape from bargaining. In the bargaining order area, there is a tension between fostering employee free choice and deter- ring future violations. See generally, Note, "`After All, Tomorrow Is Another Day': Should Subse- quent Events Affect the Validity of Bargaining Orders?" 31 Stan. L. Rev. 505 (1979). My solution, admittedly imperfect, is to consider postviolation mitigation in Gissel category 2 cases, but in doing so, to bear in mind the two other factors already discussed: the nature and the pervasiveness of the violations. Thus,- serious category 2 cases-those near the category 1 line (where mitigation need not be con- sidered)-will be relatively difficult to mitigate. Category 2 cases that are factually close-those in which a bargaining order is warranted on the nature and pervasiveness factors, but only barely- will be relatively easier to mitigate. In short, miti- gation is a factor in category 2 cases, but only a factor;_ the stronger the other factors favoring a bargaining order, the heavier the employer's burden of showing mitigation.16 13 Kaynard v MMIC. Inc, 734 F 2d 950, 954 (2d Cir 1984) 14 Jamaica Towing,- 632 F 2d at 214 1.5 632 F 2d at 214 16 Ordinarily, I would not consider evidence of mitigation beyond the time of the unfair labor practice hearing See Bandag, Inc v NLRB, 583 F 2d 765, 772 (5th Cir 1978) The Board could entertain evidence of posthearing developments in extraordinary cases, however, upon an em- II. WHY A BARGAINING ORDER IS APPROPRIATE IN THIS CASE In the instant case, the Respondent committed at least six hallmark violations. It threatened to "close the doors" in the event of a strike and to discharge employees by "building a case" against them. Ap- proximately 2 weeks later, the Respondent dis- charged Melvin Hughes, the principal union adher- ent, in precisely the manner it said it would, i.e., by "building a case" against` him. The Respondent also discharged employee Nancy Helton when she re- fused to participate in the Respondent's unlawful scheme to prevent prounion employees from voting in the election by promoting them to "supervisory" positions. In addition, the unlawful 'plan affected the employment status of two other employees (Joyce Miller and Betty Smith) because the Re- spondent coerced them into accepting "superviso- ry" positions in order to deprive them of their stat- utory rights. Such highly coercive unfair labor practices were likely to have had a profound impact on the em- ployees for several reasons. First, all the violations were committed by the Respondent's two highest management officials: Jean Foust; the Respondent's sole proprietor, and her daughter, Pat Schroer, the facility's chief administrator. Second, the unit was small, consisting of approximately 16 employees. Third, the employment status of one-fourth of the unit was directly affected by the Respondent's hall- mark violations (the discharges of Hughes and Helton, and the "promotions" of Miller and Smith), and the threats to discharge employees and "close the doors" were made at a meeting all employees attended. Finally, the-record reveals that the em- ployees frequently held meetings to discuss among themselves the Repondent's actions. There can be no doubt in this -case that the Respondent's hall- mark violations -were brought to every unit em- ployee's attention. The Respondent's hallmark violations of perva- sive effect place this case squarely within Gissel's second category and support a bargaining order. Turning to the mitigation factor, evidence of new management and significant employee turnover is lacking. The passage of time between the events of this case and our decision is regrettable, but un- avoidable, and does not by itself warrant withhold- ing- a bargaining order. Accordingly, for the above reasons, I join my colleagues in issuing a , bargain- ing order. - plo•er's motion to reopen the record See Sec 102 48(d)(1) of the Board's Rules and Regulations REGENCY MANOR NURSING HOME 1265 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. I WILL NOT refuse to recognize and bargain col- lectively - in good faith, on request, with United Food and Commercial Workers International Union, Local 1099, AFL-CIO-CLC (the Union) as the exclusive bargaining representative of all em- ployees in the following appropriate unit with re- spect to rates of pay , hours, wages, and other terms and conditions of employment: All full-time and regular part-time employees employed by us at our Independence, Ken- tucky facility, excluding . all professional em- ployees, guards, resident care coordinator, as- sistant care coordinator, charge aide, head cook, administrator and all other supervisors as defined in the Act. I WILL NOT discharge, refuse to hire or reem- ploy, or otherwise discriminate against my employ- ees because of their activities on behalf of, member- ship in, or sympathies for the-Union or any other labor organization. I WILL NOT threaten my employees with dis- charge or change of jobs for assisting or supporting the Union or any other. labor organization ; threaten employees that I will close my doors in the eveni of a strike; promise or grant benefits to employees to induce them to refrain from supporting the Union or any other labor organization ; create and, by threats and coercion, assign supervisory fob classifications to employees in order to undermine union support among my employees or in order to interfere with their right to vote in Board -conduct- ed elections. I WILL NOT coercively interrogate my employees concerning their union or protected concerted ac- tivities. I WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization; to form, join, or assist any labor organization, to bargain collective- ly through representatives of their own choosing; or to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid; or to refrain from any and all such activities. I WILL offer Melvin Hughes, Nancy Helton, Joyce Miller,- and Betty Smith immediate and full reinstatement to their former jobs or , if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and I WILL make them whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest. I WILL recognize and, on request, bargain collec- tively in good faith with the Union as the exclusive representative of my employees in the above-ap- propriate unit with respect to rates of pay, hours, wages, and other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding. in a signed agreement. I WILL expunge from my files any references to the discharges and failure to reemploy Melvin Hughes and Nancy Helton, respectively, on 19 and 24 November 1982 and 31 May 1983 and notify them, in writing, that this has been done-and that evidence of this unlawful conduct shall not be used as a basis for future personnel actions against either of them. JEAN - FOUST, SOLE PROPRIETOR, DOING BUSINESS AS REGENCY MANOR NURSING HOME DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. This consolidated matter was tried before me on June 14 through 16, 1983, in Cinncinati, Ohio, on the General Counsel's amended complaint dated January 26, 1983, as further amended at the hearing, and Respondent's (Jean Foust, Sole Proprietor, doing business a Regency Manor Nursing Home) timely answer, as amended at the hear- ing. The complaint, as amended, alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, including the termination and failure to rehire two named individuals (Melvin Hughes and Nancy Helton) and various acts constituting independent viola- tions of Section 8(a)(5) of the Act involving United Food and Commercial Workers International Union, Local 1099, AFL-CIO-CLC (the Union) commencing about September 13, 1982 Respondent admitted various allega- tions of the complaint, denied others, and denied the commission of any of the alleged unfair labor practices. By virtue of ah order dated January 27, 1983, of the Regional Director for Region 9 of the National Labor Relations Board, I also took as part of this consolidated matter evidence concerning challenges to the ballots of six named persons (the alleged discriminatees, Hughes and Helton and Joyce Miller, Cheryl Crank, Sharon Strause, and Betty Smith). Lastly, included was a hear- ing on both objections to the conduct of the election and objections affecting the results of the election: the objec- tions affecting the conduct of the election related to Re- spondent's alleged failure to cover a window from which the voters in the Board-conducted election on December 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7, 1982, could be seen, and the objections affecting the results of the election related, principally, to matters al- leged as unfair labor practices in the instant consolidated unfair labor practice case.' At the hearing, all parties were given full opportunity to call and examine witnesses, to submit oral and written evidence, and to argue orally on the record. After close of the hearing, the General Counsel and Respondent sub- mitted timely posthearing briefs which have been duly considered. - On the entire record, including the briefs, and from my observations of the demeanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. RESPONDENT AS EMPLOYER _ - The complaint alleges,` Respondent admits, and I find that the Respondent, Jean Foust, Sole Proprietor, doing business as Regency Manor Nursing Home, is a sole pro- prietorship with an office and place of business in Inde- pendence, Kentucky, where it has been engaged as a health care institution in the operation of a nursing and convalescent facility. During the 12 months prior to the issuance of the complaint, a representative period of is operations, Respondent in the course and conduct of its operations derived gross revenues in excess of $100,000 and purchased and received at its Independence, Ken- tucky facility products, goods, and materials valued in excess of $10,000 directly from points located outside the State of Kentucky. Respondent concedes, and I find, that at all material times it has been, and is, an employer en- gaged in commerce within the meaning of Section _2(2), (6), and (7) of the Act and a health care 'institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that the Charging Party, United Food and Commercial Workers Interna- tional Union, Local 1099, AFL-CIO-CLC (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The. complaint alleges and Respondent admits that at all material times Jean Foust, Respondent's; sole proprie- tor, and her daughter,'Pat Schroer, the administrator of Regency Manor, have been and are supervisors of Re- spondent within the meaning of Section 2(11) of the Act and agents thereof within the meaning of Sectioii 2(13) of the Act. Respondent also admits that the following unit of its employees is appropriate for the purposes of collective- bargaining within the meaning of Section 9(b) ' of the Act: - ` The underlying charge was filed by the Union 'on December 9, 1982, and served on Respondent on December -10, 1982 All full-time and regular part-time employees em- ployed by Respondent at its Indpendence, Ken- tucky facility, excluding all' professional employees, guards, resident care coordinator, assistant resident care coordinator, charge aide, head cook, adminis- trator, and all other supervisors as defined in the Act. About April 1982, Respondent purchased as a going business the Regency Manor facility, at the same time hiring all the employees of the predecessor. The chief su- pervisor in charge of all facility functions, both profes- sional and administrative, was a registered nurse, Rose- mary Connor. Jean Foust, at all material times, was and is employed in a supervisory capacity with another em- ployer in Cincinnati, Ohio, and regularly spends little, if any, time at the Regency Manor in any capacity. Com- mencing in April 1982 with the purchase of the facility, Foust installed' as the chief administrator of the facility her daughter, Pat Schroer, a former school teacher ad- mittedly inexperienced in business affairs generally and in running a health facility specifically. In the months April through June, all of the supervisory functions were exe- cuted by Rosemary Connor, notwithstanding that Pat Schroer took the title of administrator and was the titu- lar head of operations. The operation itself consists of a health care facility with some 45 to 47 elderly residents who require bath- ing, administration of drugs, dressing, feeding, and simi- lar nursing' and custodial functions. These functions are performed 24 hours per day, 7 days per week, including the provision of meals and laundry, by nurses aides, cooks, and a maintenance staff. There is no dispute that at all materials times there were no more than 16 persons employed at the facility, excluding Patricia Schroer. The nurses aides worked on three overlapping shifts. the first shift from about 6.30 a.m. to 2:30 p.m., the second shift from 2:15 until 10:30 p.m., and the third from 10:15 p.m. to 6:45 a.m. In the period commencing with the April 1982 pur- chase through September 1982, there was no hierarchical organization of a formal nature in Respondent's facility. Rather, Rosemary Connor ran the entire operation. Commencing about June 1982, Pat Schroer advised Connor that she (Schroer) wanted to have Rosemary Connor devote her time to the health care side of the op- eration and the direction of the nurses aides and to have Schroer take over as chief supervisor of the other func- tions: bookkeeping, maintenance, laundry, cooking and kitchen activities, purchase of supplies, etc. Rosemary Connor allegedly did not accept this change and, by the end of August, she gave notice of her intention to quit. She did -so at the beginning of September 1982.' B. The Union's Organizational Drive About late August 'or early September 1982,• Pat Schroer cut the hours of nurses aide Debbie Pelfry, not- withstanding that other nurses aides had less seniority than Pelfry. As a result of this action, the nurses aides became -concerned with their terms and conditions of employment and spoke to Melvin Hughes, Respondent's REGENCY MANOR NURSING HOME 1267 maintenance man at the Regency Manor facility, con- cerning their common work problems. Hughes, em- ployed continuously by Respondent's predecessor'-and by Respondent since November 1981, telephoned the Union about September 5 or 6 1982, received and then distribut- ed union membership application cards to the employees, and thereafter conducted about 10 union meetings at his home near the Regency Manor facility Groups of 5 to 12 employees attended these meetings. Hughes distribut- ed cards to six named employees '(Crank, Hamilton, Pel- frey, Strause, Smith, and Miller) and returned their signed cars (all signed in the period September 7 through September 9, 1982) to Union Representative Wyatt. In all, the Union was in possession of 13 signed membership application cards from a total of not more than 16 unit employees when, on'September 1.3, 1982, it sent a letter to Respondent (G C. Exh. 3(a)) claiming to represent a majority of ;Respondent's employees,- mentioning a bar- gaining unit of nurses aides, cooks, and maintenance em-. ployees, and -requesting Respondent's bargaining with the Union as the employees' collective-bargaining representa- tive.2 The evidence shows that the Union's letter was re- ceived, by Respondent on September 14. On September 23, 1982, Respondent acknowledged receipt of the Union's September 13 letter and noted that it was not in agreement with the claims made by the Union, suggest- ing that the Union contact the National Labor Relations Board ("if you wish to pursue this matter"). The record also shows that at.some time in this period, Respondent contacted a labor relations consultant, Tom Forshee, and the law firm which appeared in this proceeding repre- senting Respondent. - Meanwhile, on September 22, 1982, the Union filed a petition for certification in Case 9-RC-14151 in 'the above-stipulated unit; and on October 25, 1982, executed with Respondent a Stipulation • for Certification Upon Consent -Election wherein a December -7, 1982 election was agreed to. The election was held on December 7; the Union losing 4 to 6, with 10 votes cast and 6 chal- lenged ballots. The Union filed timely objections both to the conduct and the results of the election, most of the latter of which appear herein as unfair labor practices. 2 The parties stipulated, inter alia, to the existence at the time of the Union's September 13 request for recognition of 13 unit employees (in- eluding Cheryl Crank) for purposes of determining majority status based on 'signed union membership application cards There is no dispute that on and between September 7 and 9, 10 unit employees' signed union cards authorizing the Union to represent the signer "for the purpose of collec- tive bargaining': See G C Exhs 5 and 6(a) et seq Three additional card signers, persons employed by Respondent (Betty Smith, Sharon Strause, and Joyce Miller), are alleged by Respondent to be statutory supervisors at all material times Miller signed on September 9, Strause on September 8, and Smith on September 8 In addition, Cheryl Crank, a card signer (G C Exh 6(c)) on September 8, was stipulated to have become a super- visor after the Union's September 13 request for recognition to have her card counted for recognition purposes but to have her ballot in the elec- tion, infra, neither opened nor counted C Alleged Violations of Section 8(a)(1) in the September 30 and October 4 Interviews with Employees On September 22, the Union filed the election petition. On September 23, Respondent rejected the Union's Sep- -tember 13 request for recognition. It is not disputed that on September 30, 1982, Pat Schroer called employees into her office individually, or in small groups and spoke to them concerning the Union. 1. Melvin Hughes: Hughes testified that when Pat Schroer called him alone into her office on September 30, she said she wanted to talk to him about the Union. He testified, and Pat Schroer conceded, that he immedi- ately told her that he was for the Union and had been to every union meeting . Schroer told him that the Union was a "give and take thing" and that in order to gain a benefit the employees would have to give up benefits and that there would be fines, assessments, and dues if the Union got in. He said that when she also told him that there would be a "strike clause" in the contract that the Union might negotiate, he said that the employees would have to vote before the Union could strike. He said that Pat Schroer told him that she appreciated his honesty and they discussed the benefits or lack of benefits which accrued to Pat Schroer when she belonged to the Teach- ers Union. Pat Schroer also asked "how the Union got started." Schroer denied this and testified that she said only that she was disappointed because the employees went to a third party to settle their problems and did not come to her. I conclude that regardless of the words ac- tually used by' Pat Schroer, whether she actually asked the question or made a statement, the language used nev- ertheless invited a response from Hughes (and' from other employees) 3 In response to Schroer's inquiry or statement concerning how the Union got started in the first place, Hughes answered that it came about "[w]hen you cut back Debbie Pelfrey's hours out of seniority." He told Schroer that the girls talked to him and he told them he would call for a union. I also credit Hughes' recollection that Pat 'Schroer asked how a union could help them and that he told her that a union could pro- vide jobs and security and that there would be no firing of employees over a question -like "how they combed their hair." I find that Schroer answered that she would not do anything like that in, any event and merely wanted to talk to him to get to the bottom of how the whole "union mess" got started and that she appreciated his truthfulness. He also recalled Pat Schroer saying that the Regency Manor (mortgage) would be paid off in 10 years; that she was doing as much as she could do for the employees; but that when the financial obligation of paying off the building was completed, Respondent would do more ,for the employees. At the hearing, it was evident that Pat Schroer desired to limit the extent of her prior questioning of Melvin 3 Pat Schroer testified that she could not have overstepped lawful in- quiry into the area of unlawful interrogation, threats, or promises because Labor Relations Consultant Tom Forshee had given her a little slip of paper advising of what she could do and what she could not do The slip of paper was not produced at the hearing I am not persuaded that Pat Schroer's conversation remained within lawful bounds 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hughes. Although Hughes was certainly not-as articulate as Pat Schroer, and notwithstanding that Pat Schroer ap- peared to me to be an intelligent witness, I nevertheless conclude that, as above noted, regardless of her denials and explanations, she was inviting Hughes to state not only his position with regard to 'the Union but to answer other questions concerning union activity among' em ployees. I therefore conclude that sequestering him in her office, the office of the chief supervisor, and ques- tioning him-concerning how the union "mess" got start- ed and what help the Union would be constitutes unlaw- ful coercive interrogation in violation of Section 8(a)(1) of the Act. THE Co., 261 NLRB 204, 208 ' ( 1982) In- addition, Pat Schroer did not fully deny, if at all, the credited testimony of Hughes in that she said that after the building mortgage had been paid off, Respondent could do more for the employees . I regard ' this to be 'an unlawful promise of benefits to employees coming after the Union filed its election petition uttered in a context of open antagonism to the Union, NLRB, v. Exchange Parts Co., 375 U. S. 405, 409 (1964), which promise un- lawfully impinges on their freedom of choice in violation of Section _ 8(a)(1). Lastly, 'Schroer's statement demon- strated thai with a• union , the employees would inevita- bly lose benefits even if they gained others Such a pre- diction is unlawful Respondent argues (Br 12 et seq.) that Hughes was in- credible because he was unsure of and confused about dates and also confused about certain other threats by Proprietor Foust herself. I find Hughes to be credible: As to the confusion , if any, the Board and courts have, long held that confusion on dates, days, and, even, se-. quences of events does not necessarily detract from credibility . Plumbers Local . 195 (Stone &, Webster), 240 NLRB 504, 514 (1979), enfd . 606 F2d..320, (5th Cir. 1979). As to allegedly confusing what Foust separately; threatened, it is not Melvin Hughes who . is confused or, inconsistent, but Respondent. Contrary to Respondent,- Hughes did testify, and I credit him, that Foust, at a par- ticular meeting, threatened to "build a case" to get rid of, union sympathizers; he merely_ said she-did not," add "That's, what I'm- going to do - here " In sum, Melvin Hughes' testimony was credible ; Patricia Schroer's deni- als were not. On her demeanor, on mutual corroboration of the .General Counsel's witnesses ,. on their demeanor, and Schroer's palpable union animus discussed hereafter, I would not credit her . On the :basis of these findings, of violation of Section 8(a)(1) on September 30, 1982, in_ terms of unlawful promises of benefit, threat of inevitable loss of benefits,. and unlawful, coercive interrogation, and these unlawful acts, having also been alleged as.oblection-: able conduct occurring between the. time of the filing of, the Union's petition for certification, (September 22,- 1982) and the election on December 7, 1982, I recom: mend to .the-Board that the-election be set aside. Thus, I•: find that these actions by Respondent are not , only objec-i tionable conduct interfering with the conduct -of,the elec- tion, but, a fortiori, objectionable because they constitute unfair labor practices See Ideal -Electric Co., 134 NLRB 1275, 1278 (1962), and Dal-Tex Optical C6, 137 NLRB 1782, 1786 ( 1962). . , 2 Cheryl Lynn Hamilton: Currently employed by Re- spondent as- a cleaning lady but formerly employed as a nurses aide, Hamilton -testified that, at the end, of Septem- ber 1982, she was called into Schroer's office along with Sharon Strause Strause, though called as a witness by the General Counsel, did not testify with regard to this conversation with Hamilton and Pat Schroer Hamilton testified that she recalled Pat Schroer saying that "we should be careful about a union", that a union could help them or hurt them, and they should "watch out" for as- sessments and the payment of dues, that they should get everything in_writing from the Union, that it was costing Respondent a great deal of money to fight the Union; and. that "there would be no union at Regency Manor." She, like•,Melvin. Hughes, also recalled Schroer saying that Respondent would pay for Regency Manor in 10 years and it would "get better for the employees" there- after. Lastly, she recalled Schroer saying that if a union got in, Respondent would abide by the union contract, but that'having a union was a give-and-take situation for the employees and if the employees got something they would lose something. Although Hamilton's testimony was consistent in part with the testimony of Pat Schroer, there was no question that Hamilton's testimony substantially corroborated Melvin Hughes' testimony _ concerning Schroer's state- ments to employees- in her office in that there was a promise of benefits down the road after Respondent paid off 'the cost of obtaining Regency Manor,'which is an unlawful promise of benefit' within the" meaning 6f-Sec- tion 8(a)(1), notwithstanding that it was not a promise of an immediate benefit, and her statement that the employ- ees would necessarily lose something if the, Employer gave a bargaining benefit, also is an unlawful statement of inevitable detriment, violating Section 8(a)(1), which is not supported by any contract demand or otherwise. I find that such statements violate Section 8(a)(1) of the Act because there is no statutory or even 'bargaining ne- cessity for the employees to give up a benefit in order to obtain one in collective bargaining. Schroer's, absolute statements that it was costing Respondent "money to fight the Union" and that there "would be no union" at Regency Manor indicate the "futility" of the, employees seeking their right to, statutory representation It was a statement of dedication that there would be no' union at Respondent's facility. Such a statement violates Section 8(a)(1) and demonstrates unremitting animus. 3. Mary Hughes: On September 30, Pat Schroer ap- proached Mary.Hughes, one of Respondent's cooks, wife of Melvin, Hughes, in Respondent's kitchen about 2:15 p m. Schroer acknowledged that she came there to talk of the Union and, according to Mary Hughes, said that she '.found out',' the employees were organizing a union. When Schroer asked her if she ever belonged to: one, Mary 'Hughes answered , that she did. I credit Mary Hughes' testimony. Given Schroer's accompanying animus, and the lack of assurance against . retaliation, I conclude that Schroer, in violation of Section 8(a)(1), 4 This unfair labor practice, also alleged as objectionable conduct, would be sufficient to set aside the, election See Melvin Hughes. above REGENCY MANOR NURSING HOME 1269 was coercively interrogating Mary Hughes on September 30. I also credit Mary Hughes' testimony that Schroer told her, as she told Cheryl Hamilton, both employees then currently employed by Respondent at the time of giving testimony, see Georgia Rug.Mill, 131 NLRB 1304, 1305 fn 1 (1961), that Schroer said that she did not want a union in Respondent, i.e., she did not want a "third party" interfering in her business. I also credit Mary Hughes' testimony that Pat Schroer said that her mother, Jean Foust, would have the establishment paid for in 10 years and after that Foust would "do something" for the employees. I regard this as an unlawful promise of bene- fits in violation of Section 8(a)(1). I also credit Mary Hughes' testimony that Schroer told her, in specific terms, in violation of Section 8(a)(1) that the employees would have to give up some benefits that they then en- joyed, including paid holidays, in-order to get a further benefit in collective bargaining. I also credit Mary Hughes' testimony that Schroer unlawfully asked her on September 30 whether she had ever attended a union meeting and then expressed disbelief when Mary Hughes denied attending a union meeting 4 Linda Jo Etler. Linda Jo Etler and Nancy Helton were nurses aides on the third shift at Regency Manor on October 4, 1982. About 6:45 a.m. before they left the premises after completing their night shift, Pat Schroer called them into her office and told them that she wanted to talk to them about a Union. She first asked them if they were familiar with union organizations and told them that a union would do them more harm than- good. She said that Respondent had hired Forshee, a labor consultant; that they should beware of unions and have the Union put things in writing; that the Union might get them a contract that they did not want and the Union would make decisions for them, that Respondent could handle problems with employees without the inter- vention of a third party, and that a union-security clause- might be. in the contract and, if so, Respondent would take away a benefit that they already had in order to gain the benefit of a union-security clause. When Schroer told them that she assumed that Linda Townsend was the charge aide on the third shift, they answered that Linda Townsend was not a charge aide on the third shift; that there was no charge' aide on, the third shift; and that the three employees on the shift (Townsend, Etler, and Helton) all did the same work of sweeping, dusting, mopping, and checking-on the patients 5 On the' basis of the credited testimony of Etler, an employee currently employed at the time of her giving testimony, as Mary Hughes and Hamilton, above, I conclude that Respondent unlawfully threatened to take away benefits already given to employees. Such a statement violates Section 8(a)(1), though couched in the framework of the give-and-take bargaining situation These repeated viola- tions, again, coming after the filing of the Union's elec- tion petition and before the election, require that the election be set aside. 5 As a matter of scheduling, on a weekly basis, there were always two employees on the third shift, except three on Friday night, in caring for the 45 to 47 elderly people D. The November 2, 1982 Meeting Between Respondent and its Employees The 'Union's petition for certification in the above-cap- tioned case (9-RC-14151) was filed on September 22, 1982; and Respondent and the Union, at the Board's Re- gional Office, on October 25, 1982, entered into a Stipu- lation for Certification Upon Consent Election whereby the election was to be held by secret ballot on December 7, 1982, in Respondent's conference room at,Regency Manor. About October 19, 1982, 1 week before executing the above stipulation, Respondent distributed a memorandum to all employees (G.C. Exh. 12) whereby it announced appointments to supervisory positions effective that day. The following persons were named to the following po- sitions. Sharon Strause was named resident care coordi- nator; Cheryl Crank was named assistant resident care coordinator; Joyce Miller was named' charge aide (second shift); Linda Townsend was named charge aide (third shift); and Betty Smith was named head cook. The memorandum noted that "these people have new and ex- panded duties and responsibilities and I [Pat Schroer] will be looking to them for help in the management of the Home." Pursuant to the prior notice posted on the company bulletin board, Respondent held a meeting with all of its employees in its conference room about 2:15 p.m. on No- vember 2, 1982. Present were all employees and Pat Schroer and her mother, Respondent's sole proprietor, Jean Foust. Pat Schroer announced that Respondent still needed two supervisors because of a State of Kentucky requirement that there be a supervisor assigned to each shift (i.e.,' each charge aide be a supervisor) and that the head cook be a supervisor. In substance, she told the em- ployees that there was no charge aide supervisor on the third shift (Linda Townsend was indecisive in accepting the charge aide designation) and that the position of su- pervisory head cook had not been filled Pat Schroer told the employees that if no one took those jobs, she would have to go out "to the street" to hire someone even if it meant laying off one or more of the employees who refused to take those supervisory positions. Melvin Hughes, Mary Hughes, and Cheryl Hamilton credibly testified with regard to what, in addition, Jean Foust said at the November 2, 1982 meeting They recalled that after Pat Schroer went through the new chain of command at Regency Manor, she gave the meeting over to Jean Foust, who said it was a "shame" to have a "third party" consulted to resolve Respond- ent's problems with its employees and she wanted to know about this "business of the Union." Foust said that Pat Schroer had made a mistake (in reducing Debbie Pelfrey's hours out of seniority) and asked the employees if Respondent was not allowed to make a mistake. She told the employees that Debbie Pelfrey's reduction in hours had been rectified before the advent of the Union, but Melvin Hughes, contradicting her, said that the recti- fication occurred only after the advent of the Union. When Foust said that she was disappointed and could not understand why the employees sought out the Union to help with their problems, Melvin Hughes, whose wife 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mary Hughes is. a cook , said that Respondent's nurses aides should not be allowed , into the kitchen to mess it up, especially when the State of Kentucky said that only cooks could gain entrance into the kitchen Foust, after replying that it was her kitchen and nobody could keep her out, then turned to Melvin Hughes, told him that he was outspoken, 'and asked him who made him "spokes- man for the girls." Hughes told her that no one made his spokesman but that the nurses aides had become dissatis- fied and had 'come to him 'to seek out help and to get a union. Hamilton recalled that when Foust asked why the em- ployees had started a union and learned it was due to the reduction of Debbie Pelfrey's hours out, of seniority, Hamilton added that if Schroer'and Foust could do this to Debbie Pelfrey without regard to seniority, then they could do it to any one of the nurses aides even if the cause of the change was that Respondent did not like the way a nurses aide walked or combed her' hair . Foust re- plied that she could fire any one of them with or without a union and added that where she worked , if manage- ment did not like an"employee, it could "build a' case" against the employees 'even if it was because it did not like the way the employee walked or dressed Foust also said that if there was a strike, Respondent could either close the doors of Regency Manor or- run it by hiring her relatives. She also said that if there was negotiation of a contract, the employees would have to go back to "minimum wage" and start from "ground zero." The above findings of fact are based on the credited testimony of Melvin Hughes, Mary' Hughes, and Cheryl Hamilton To the extent that Pat Schroer and Jean Foust testified to the contrary, they are not credited. While I viewed Mary Hughes as having a - particular 'interest in testifying in support of the testimony of her husband; Melvin Hughes, I note that Cheryl Lynn Hamilton is -an employee currently employed-at Regency Manor who was 'testifying directly in the presence of Pat Schroer and-against Respondent's interest As a whole, I was im- pressed with'the mutually corroborative testimony of the two Hugheses' and Cheryl Hamilton, including the normal variations in recollections , and credit -them and discredit Respondent's 'witnesses' contrary testimony. Only Foust and Schroer testified on these points as wit- nesses for Respondent. Indeed, Foust testified that at the November 2 meet- ing, her daughter, Pat Schroer, did-all of the speaking'(I do not credit this testimony); that' Cheryl Hamilton told the employees that since they signed union -cards, she be- lieved that they would have to go through with support of the Union; and that, if they did not, .Respondent would "let us go" and they would not be able to work there I do not credit such testimony In response; Foust testified that she said that if they did their job, there would be no problems and, if not, they would be let go I .find that any such latter statement -made' by Foust is not inconsistent with other testimony-which I have cred- ited from the two Hugheses and Cheryl Lynn Hamilton. Foust also testified that she suspected that Melvin B The record is corrected to show that it was "Foust" rather than "Strause" who is the speaker Hughes was involved with the Union and that it made no difference to her one way or the other whether the Union came in. I. credit neither the former nor the latter statement. Her daughter knew that Melvin Hughes de- clared himself for the Union on September 30. Foust did not merely suspect Hughes' involvement . She admitted asking Melvin Hughes at the meeting who made him spokesman . for the girls and asked him-why the nurses aides- went to him for advice. Jean Foust's other testimo- ny was marked by considerable lack of recollection of events ' Pat Schroer recalled , with regard to the November 2 meeting, only that her mother told the employees that there was an open-door policy at Respondent's nursing home' and that the employees should have gone to Pat Schroer rather - than -tthe Union if they had any prob- lems. Schroer testified-that this "open-door policy" exist- ed ever since mid-September 1982, but she admitted she had never told the employees of its existence. Rather, her actions after the September departure of Chief Super- visor Rosemary Connor were somehow supposed to demonstrate a new "open-door policy ." I do not credit the existence of the unannounced "open-door policy": it was merely a late announcement - of a new device to ame- liorate employee discontent because of the advent of the Union. - As above noted, I credit the General Counsel's wit- nesses as to the events of November 2. I therefore con- clude that Respondent, in a prior and present context of animus by asking the employees how the Union got started and telling them that it was disappointed and could not understand how the Union got started, was in- terrogating the employees concerning the-basis of their seeking out. and joining the Union I conclude that, as al- leged, this is coercive interrogation in violation of Sec- tion 8(a)(1) of the Act. I further conclude that Foust threatened to discharge, and reserved the right to dis- charge, anyone by "building a case" against him if she wished to get rid of him on a pretext I conclude that, as alleged, this is a threat of discharge in violation of Sec- tion 8(a)(1) of the Act I further conclude that, in viola- tion of Section 8(a)(1) of the Act, Foust threatened the loss of benefits in that any contract negotiated with the Union would cause the employees to return to pay rates of the minimum wage and to negotiate from "ground zero," Belcher Towing Co., 265 NLRB 1258 (1982), and that Foust also said that she would run Regency Manor any way she wanted to because it was her business even if it meant firing every one of the employees . This later statement was also an unlawful threat of discharge be- cause of the advent of the Union Similarly , there was an unlawful threat of "closing the doors" in the event of a strike even though it was attached to the continuation of business by the hiring of relatives . At this point in time, there was no recognized labor organization representing the employees , there was no bargaining negotiation threat of a strike, and there was no reason to threaten to close - Respondent's doors. This violated Section 8(a)(1) of the Act. These violations of Section 8(a)(1) of the Act, also constituting the timely filed objections affecting the con- REGENCY MANOR NURSING HOME 1271 duct of the election, lead me to' further recommend to the Board that the election of December 7, 1982,-be set aside. E The Discharge of Melvin Hughes on November 19, 1982 Mary Hughes testified that immediately after the No- vember 2, 1982 meeting of all the employees with Jean Foust and Pat Schroer, she asked to speak with Foust and Schroer privately They went into the office and it is not disputed that Hughes spoke of Cheryl Crank giving Mary Hughes a "hard time" over work and calling her bad names, trying to get her fired because of the Union. Foust said that this matter should have been brought to Pat Schroer's attention because of the open-door policy but Mary Hughes told Foust that Pat Schroer and she were not on speaking terms. Foust denied that the Union was discussed. -I do not credit the denial. Mary Hughes further credibly testified that she told Foust she had signed a union card and Foust said she could not under- stand how the Union got started, and again stated that Respondent did not need a third party interfering with their problems. Foust also asked Mary Hughes why Melvin Hughes was involved with the Union and, after a discussion of Debbie Pelfrey having lost hours out of se- niority, Mary Hughes further testified (and Foust denied) that Foust told her that Melvin Hughes' "outspokenness" could get him fired. I credit Mary Hughes. As I ob- served her, Mary Hughes was an honest, careful witness. Respondent's cross-examination further demonstrates both those qualifications. Foust's threat to fire Melvin Hughes for his "outspokeness" relates to his speaking out regarding union activities and violates Section 8(a)(1) of the Act. Melvin Hughes was employed by Respondent's prede- cessor and became one of Respondent's employees upon Respondent's April 1982 succession. From April 1982 until about September 1982, Hughes, employed 3 days per week, 4 hours per day (Monday, Wednesday, and Friday), 8 a.m. to noon, worked as a "light maintenance man." It was his custom and function to fix and maintain malfunctioning toilets, doors that closed poorly, light switches, sweep the floors, and similar items . He became aware of his everyday maintenance chores by nurses aides or other employees posting slips on the bulletin board or giving . him slips noting that things needed repair Jim Schroer, husband of Pat Schroer, a carpenter by trade, was laid off from his carpentry job around mid= June and commenced performing services without charge at Regency Manor commencing mid-June 1982 until December 1982. He spent 30 to 35 hours'per.week at Regency Manor commencing June 1982. In July 1982, he painted the exterior of Regency Manor and later per- formed inside maintenance work. He'testified that he ob- served Hughes 'while at work and determined that Hughes did not perform his work, which was almost en- tirely inside work, in an efficient or quick manner. Alleg- edly by the second week in August, after Pat Schroer asked him, to guide Melvin Hughes into a better working routine and especially to have Hughes engaged in pre- ventive maintenance, he spoke with Hughes and told him that he was going to set up a daily, weekly , and quarter- ly maintenance schedule. He testified , in addition, that he executed ' thre'e schedules for Hughes , the first allegedly in late August, and told him to fill in the time it took Hughes to perform the maintenance work. Hughes, ac- cording to Schroer's uncontradicted testimony , executed only one of the three schedules. Jim Schroer said that Hughes' work never improved and, commencing as early as the beginnng of August, he allegedly told Pat Schroer and her mother to get rid of him because Hughes ap peared to him to be lazy. Indeed, Schroer testified that as early as his first observation of Hughes in June, he found Hughes to be an inadequate employee who did not get enough things 'done. In particular, Schroer testified that in the period from July to November he told his wife, Pat Schroer, to fire Melvin Hughes a dozen times and in the same period told Jean Foust three times to fire him. For instance, although he did perform the addition- al functions required on the work schedule such as sweeping the inside steps and getting rid of the salt in the main entrance put there during the winter time, he did not perform additional functions. which were men- tioned on the work schedules. Only one of the work schedules was produced at the hearing (R. Exh. 1), but that was given to Hughes on November 9.7 Although Jim Schroer testified that, commencing in August, he told Hughes on several occasions that he thought Hughes should be doing more than he did, that he again told him this at the end of August when he presented him with the first work schedule, and that he thereafter told' him again in the second week of September, al- though he allegedly repeatedly recommended to his wife and Foust firing Hughes commencing in July, he admit- tedly never did warn Hughes that his failure to improve his work would lead to any discipline, much less-dis- charge. Nor did any other person warn Hughes before the coming of the Union. In particular, he noted that all through this period, Melvin Hughes failed to properly clean the grease trap* which had to be cleaned twice a week. In addition, it took Hughes too long to clean the grease trap. It also took, too long for Hughes to perform his sweeping function and .he noticed that Hughes was always drinking coffee and.talking too much. Jim Schroer further testified that in mid-November, -Pat Schroer told Hughes that he was not working up to par and that Hughes only answered that he was doing the best he could and did not think that the list or sched- ule was a good idea In response to this, Pat Schroer said that they, were going to go by the list to see that the work got done. Pat Schroer recalled particularly that al- though her husband came to work at Regency Manor in June 1982, he was allegedly first introduced as Hughes' The record is unclear whether Respondent or Hughes had the al- leged August lists Respondent never sought to subpoena the lists if they were in Hughes' possession to prove otherwise Jim Schroer 's recollec- tion and testimony on the point were unclear and unsatisfactory I do not credit Schroer's testimony and I find that none of the lists was' given to Hughes before September 30 1 make this finding especially because Jim Schroer testified that he gave all three of the schedules to his wife at the end of August for delivery to Hughes and yet Respondent 's own evi- dence (R Exh 1) shows that Jim Schroer himself gave Hughes the schedule on November 8 - 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "supervisor" in the third week of August 1982, and re- mained Hughes' supervisor until Hughes was fired on November 19. Jim Schroer testified that he knew that Hughes would be discharged before the Board election of December 7 and that after the union organizing cam- paign, perhaps. in October 1982, Hughe_s', working hours were changed from 8 a.m. to noon to '9 a.m. to 1 p.m. This was done because Jim Schroer did not arrive at the job until 9 a.m. and allegedly wanted to keep a particular eye on Hughes' work. In addition to (a) not producing or seeking the work schedules allegedly given to Hughes in August and Sep- tember, which might show which functions Melvin Hughes failed, to perform in addition to the additional functions he actually did perform pursuant to the ' sched- ules, Respondent (b) did not produce its timecards to show when, in particular, Melvin Hughes' hours were changed from 8 a in to noon to 9 a.m. to 1 p.m. so that Jim Schroer could "keep an eye on him." Hughes, contradicting Jim and Pat Schroer, testified that it was 2 weeks' after his September 30, 1982 interro- gation in Pat Schroer's office that he received work schedules and his hours were changed; and that his job (principally to repair lights, toilet leaks, clean the ,grease trap, and put groceries away) was increased to pull weeds and sweep the steps, functions which Schroer ad- mitted that Melvin Hughes performed, not in August but after September 30. Hughes testified • that only after he received work schedules and his hours were changed, not in August, but in October, did Pat Schroer follow him around, telling him that she wanted to see what he was doing and time his work. I credit Hughes and credit neither Jim nor Pat Schroer. These, changes occurred after, not before,'the'coming of the Union On November 19, 1982, a Friday,8 about 11 a.m., Pat Schroer called Hughes from the basement, where he was working, into her office. She told him that she was sorry that they had to let him go because of an "economy move." She told him that her husband, Jim Schroer, would do the work for nothing. When she made out-his check, he asked her what the' real reason for the dis- charge was and she told him it was his lack of speed and the lack of quality of his work When he told her that that was not-the real reason and asked her what the real reason was, he said that Pat Schroer just laughed. Pat Schroer then told him that she did not want him on the' premises anymore.9 - Jim Schroer testified that, although he had previously recommended the discharge of Melvin Hughes on a dozen' or more occasions, in November, when Pat Schroer and Foust told him that they were discharging Hughes, there had been no further recommendation for his discharge by Jim Schroer. Thus, the decision to dis- charge Hughes did not come on a late recommendation from Jim Schroer but rather was the decision of Foust and her daughter. Pat Schroer testified that she discharged Hughes be- cause of poor work and slowness and, because her hus- Payday is each Tuesday of the succeeding week On November 19, Hughes returned a November 8 work list to Pat Schroer noting that it had been fully executed (R Exh 4) band was unemployed and would do the work for noth- ing. She also testified that she knew that Hughes was a union sympathizer at least as early as the September 30 meeting in her office with him and that any doubt re- garding his union sympathies was resolved when she saw him walking with Union International Representative David Day on the street in Independence, Kentucky, after that time Pat Schroer also testified that, despite her husband's repeated recommendations to fire Hughes commencing in. July, she first discovered how bad Melvin Hughes' work was after Labor Day in 1982 10 Discussion and Conclusions If the record as a whole is considered, it is unneces- sary to give dispositive weight to Foust's November 2 unlawful threat to Mary Hughes that Melvin Hughes' "outspokeness" could get him fired. The evidence con- sidered as a whole shows that Melvin Hughes may not have been an ideal employee. Rather, there is some pos- sibility that he did not work as fast as Respondent would ideally have him work especially after. his being unlaw- fully interrogated on September 30 when Pat Schroer, knowing of his union advocacy, started to follow him around to see what he was doing. There is no question, however, that Respondent knew of the quantity and quality of his work in the period April through Septem- ber and that Hughes' performance caused no issue what- soever. In the period July through September 1982, Schroer said that he told his wife to fire Hughes perhaps a dozen times without results. Since I do not credit the Schroers' testimony of changing Hughes' hours and job in August, there is also no question that any supervisor or other person ever implicitly or explicitly warned Melvin Hughes regarding the quality or quantity of his work, certainly not before the advent of his union activi- ties. Even if Jim Schroer spoke to Hughes in August, I do not regard Schroer's testimony to the effect that he told Melvin Hughes that he could do more work as a warning or a condition imposed upon Hughes in the event that the quality and quantity of his work did not improve. As above noted, Respondent failed to produce its timecards and early work schedules to show and sup- port Hughes' deficiencies and, particularly, when such alleged deficiencies first manifested themselves. Respond- ent asserts that the decision for and creation of work schedules occurred in late August; Hughes testified that it occurred after the September 30 meeting with Pat Schroer (in which he was identified as a union advo- cate). I have credited Hughes. Be that as it may, there is no question that Respondent assigned him further duties which he performed. Particularly since Respondent failed to produce the timecards to show when Hughes' hours were changed so that Schroer. might supervise him and the work sched- ules which might well contain the dates on which the new duties first were created, I credit Melvin Hughes' testimony and conclude that the new duties (even if not 10 All of the work lists Pat Schroer gave to Melvin Hughes from Oc- tober 27 (2 days after the stipulation) to November 19 -were apparently fully executed (R Exhs 2-7) REGENCY MANOR NURSING HOME - 1273 more onerous), the formalized work schedules, Jim Schroer's formally supervising his work, and Pat Schroer following him around, all occurred post-September 30 and were in retaliation for his engaging in union activi- ties, were for his being an outspoken union member, and, occurring after the September _30, 1982 meetings and after the retention of-the new labor consultant, were in preparation for further retaliation against Melvin Hughes. Respondent, beyond cavil, was "building a case," as Foust earlier threatened. I conclude, therefore, that whether or not, as alleged, Respondent created more onerous duties for Melvin Hughes after September 30, 1982, it gave him further duties and engaged in the above retaliatory, preparatory action against him which. equally violated Section 8(a)(1) and (3) of.the Act With regard to the November 19 discharge itself, it must be noted that Respondent, in spite of a dozen al- leged recommendations for his discharge, tolerated what- ever shortcomings Melvin Hughes had as an employee in the period from at least June (Jim Schroer had a daily presence at Regency Manor) through November 1982, without warning him that he had better improve the quality and quantity of his work or face discipline or dis- charge Such a condition is unbelievable: I do not credit the existence of Hughes' alleged incompetence or the al- leged dozen discharge recommendations. The only fac- tors which occurred after his identification on September 30 as a union member, spokesman, and sympathizer were the October 25, 1982 stipulation (for the December 7 election) and, 1 week later, the November 2, 1982 meet- ing. There Melvin Hughes was identified as the "outspo- ken" spokesman for the disaffected and apparently dis- contented nurses aides concerning their working condi- tions. It was at that meeting that Jean Foust singled out Melvin Hughes as the union ringleader and, as Mary Hughes' credited testimony demonstrated, threatened to fire him because of it. Even without this threat, the pre- ponderance of all the other credible evidence, including the creation of work schedules, following him around, etc., leads me to conclude that, even without such an un- lawful threat, Respondent discharged Melvin Hughes in violation of Section 8(a)(3) and (1) of the Act on No- vember 19, 1982. As above noted, Respondent tolerated, without warn- ings, whatever shortcomings he - had until it appeared that there was an election in prospect on December 7. It accepted his shortcomings, if any, prior to that time and the only significant element which caused major dissatis- faction with him was his identification as the union ring- leader on November 2. Rather than have him vote in the election, Respondent decided to discharge him. Also noteworthy are two other elements: in the first, Pat Schroer, on the undisputed testimony and credited testimony of Melvin Hughes, told him that his discharge was an economy move and then switched to the so- called true ground that Melvin Hughes was inefficient and too slow and that her husband could do the work for nothing. Accompanied by her laughter when Hughes asked for the "real reason," this shift in ground was not impressive. Moreover, there is Melvin Hughes' uncontra- dicted and credited further testimony that Pat Schroer told him when she discharged him that she wanted him off Respondent's premises. Such a statement by Pat Schroer is not consistent either with a termination be- cause of inefficiency, or a termination because her hus- band could do the work for nothing, or because it was an economy move. Rather, under the circumstances, it is the clearest announcement of direct animus against Melvin Hughes. The General Counsel,-having established a strong prima facie case (knowledge, animus, timing, and explicit threat of discharge), the question arises and immediately is answered as to what the source of this strange exhibition of animus during a terminal interview against an allegedly slow employee could be. it is un- doubtedly Respondent's identification of Hughes as the source of Respondent's union troubles. Thus, this display of animus undermines the putative defenses. I therefore conclude that the November 19, 1982 discharge of Melvin Hughes was based entirely on his activities in support of the Union herein and violated Section 8(a)(3) and (1) of the Act. It is necessary to cite, but not to ana- lyze, the questions of burden of proof under Wright Line, 251 NLRB '1083 (1980), for, at best, the reasons ad- vanced by Respondent to rebut the General Counsel's all but irresistible prima facie case for the termination of Melvin Hughes are pretextual, even if true, and I con- clude that they appear to be unsophisticated fabrications and untrue C & R Coal Co., 266 NLRB 208 (1983); Har- rison Steel Castings Co, 169 NLRB 5 (1968) Respondent had "built" its case by November 19, and discharged the "outspoken" union spokesman, as Foust had threatened on November 2, for the alleged work shortcomings it had tolerated, without contrary warning for more than 6 months. As noted hereafter, although the above facts demon- strate a case of 8(a)(3) and (1) violation because Re- spondent decided to (a) rid itself of the "outspoken" union advocate and (b) underline to Hughes' coem- ployees the consequences of Hughes' union support and advocacy, there was another, urgent, unlawful reason for the November 19 discharge: to prevent Hughes from voting in the already stipulated December 7 election. This discharge, therefore, is further objectionable con- duct on which the December 7 election should be estab- lished. Melvin Hughes was unlawfully discharged on Novem- ber 19, 1982. F. The Discharge of Nancy Helton on November 25, 1982 Nancy Helton was notified on November 19, 1982, that she would be discharged This was no coincidence and I find that Helton was discharged, in violation of Section 8(a)(1) and (3) of the Act, because Respondent, as in the case of Melvin Hughes, did not want Nancy Helton to vote in the December 7, 1982 election. Helton credibly testified that she had been employed at Regency Manor commencing September 1980 and was discharged on November 25, 1982. She was employed as a nurses aide on the third shift (10 15 p.m. to 6 45 a.m.), signed a union card (September 7, 1982), and attended many union meetings 'of employees at Melvin Hughes' house. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 4, 1982, as above noted, at the end of their night (third) shift, she and Linda Jo Etler were called into Patricia Schroer's office before they left. Schroer told them, as she had told other employees, that she had hired a labor consultant; that a' union would do them more harm than good ; that with a union, it was a give- and-take proposition and that they would have to give up some benefits in order to get benefits such as a union- security clause . She said that the union consultant was not opposed to all unions 'but was opposed to unions in the health care industry; 11 -that if there were a strike, 'Re- spondent could hire people off the street to replace them; and that there was no need for third party to intervene in the solution of problems which they could solve them- selves. These declarations of union animus violated Sec- tion 8(a)(1) in that they included a threat to, unlawfully .withdraw existing benefits if the- employees successfully supported the Union and a threat of discharge though couched in terms of hiring strike replacements.' There was no recognized union , no bargaining, and no strike or threat of strike. The entire interview was tainted, by these unlawful statements and threats designed, unlawful- ly, to discourage union support in the face of the Union's election petition filed 12 days previously. In addition, Schroer's statement demonstrated a concern that Etler and Helton were already union supporters: she told them to "get . .. the Union to put things in writing ., . . to guarantee our dues wouldn't be raised.,.; When she told them that Linda Townsend was the charge-aide on the third shift,. they told 'her that (a) Linda Townsend was not a charge aide ; (b) that they all did the same jobs and all did the jobs together, and that (c) Linda Townsend was merely the most senior aide on the shift It is undisputed that at that time, the third shift consisted of nurses aides Linda Townsend, Linda Jo Etler, and Nancy Helton, and that on this third shift, on 5 nights a week, two out of the three aides were on duty and only on Friday night were all three of them on duty. They all did the same thing: changed beds, swept, mopped, dusted, checked the patients , and cleaned up in case of incontinence. . On and before November 10, 1982, Schroer had of- fered-the job of charge aide to Linda Townsend and on November 10 Townsend turned her down. Thereafter, the job was offered to Etler, the next most senior, and Etler also turned her down. It was then 'offered to Nancy Helton, the least senior' aide on the shift (but not the least senior aide employed by Respondent,' there were five less senior aides employed), but Helton also turned her down. In all of these discussions; Pat Schroer told the aides on all shifts that the 'reason that there must be a charge aide-a supervisor-was that the ;State of Kentucky required that a,supervisor work_ on each of the shifts. At the hearing, Schroer admitted that there was no such requirement and' that 'her statementto the, em-_ ployees was untrue 1,2 She 'also admitted as untrue her " Cf Brownsboro Hills Nursing Home, 244 NLRB 269 (1979) 12 As the General Counsel points out, the State of Kentucky required personnel with responsibility for the patients, not over employees (Br 28-29) . telling employees that the Kentucky investigators de- manded that she have supervisory employees on each shift. Rather, it was clear that the regulations and stat- utes of the State of Kentucky (G.C. Exh 11; R. Exh. 15) require only that there be an administrator "who shall be responsible for the operation of the facility and shall del- egate such responsibility in his or her absence " What Schroer. finally. admitted was that she wanted them to become "supervisors" rather than merely medi- cally responsible charge aides. Supervisors are' not per- mitted to vote in Board elections. In any event, on November 19, in a Pat Schroer dis- cussion with Helton and Etler, Etler told her she did not want the job of charge aide because of the way the em- ployees were "acting" notwithstanding that the money was tempting. .Pat Schroer then turned to Nancy Helton and, as the least senior employee on the shift, asked her to become the charge aide. It was at this point that Nancy Helton told her that the timing was bad especially considering what was going on among the employees even though the money was good. Pat Schroer told Nancy Helton that if she refused to become the charge aide, Schroer would have to lay her off even if it meant hiring some- one from the street Helton said she did not want the su- pervisor's job because it would make enemies out of friends. Pat Schroer attempted to reassure her and told Helton that -either she (Schroer) or Strause would take the blame in case of any personnel problem. Helton still refused to become a supervisor. Etler then asked Pat Schroer whether Nancy Helton, if terminated, could vote in the election. Schroer told her that she could not. They then asked her whether, if Helton accepted the po- sition, she could vote in the election. Pat Schroer -told them that she could vote but she would be challenged by one side or the other Schroer then falsely told them that she had planned to have the supervisory jobs- long before the Union entered the picture and also told Helton that she did not consider Helton's answer as final The above conversation on November 19, 1982, occurred in the morning. Later on the same day, about 4 p.m., Schroer telephoned'Helton and asked Helton if she would accept the supervisory job and Helton told her that the answer was still no Schroer told her that she would then start searching for Helton's replacement. On November 24, about' 11:30 p.m., Pat Schroer, from her home, 'telephoned Helton at' work. Helton put Linda Jo Etler on the phone extension so that she could listen to the conversation Pat Schroer told Helton that she had found' a' replacement' to' start on November 26 and asked 'Helton to work' on Thursday (Thanksgiving),. No- vember 25. Helton agreed to do" so and Schroer told her that she would pay her for Friday even if she did not work on' that day as long as she worked on Thursday. Helton told Schroer that she wanted to work on Friday as well because she did not want to' have Etler work alone with a new replacement. 'Schroer answered that she did not want Helton to work on Friday because of the awkwardness of having Helton and her new replace- ment work together. At this point, Helton, knowing that Linda Townsend had changed her mind and had already REGENCY MANOR NURSING HOME- 1275 agreed to accept the charge aide position , 13 told Pat Schroer that the real reason that Pat Schroer wanted Helton to become supervisory charge aide was because of the Union and because Schroer did not want Helton to vote in the union election by the device of making her a supervisor. Schroer answered that that was not so; she was committed on a replacement for Helton and that the State of Kentucky had been'up to Regency Manor three times and caught her without a charge aide on the third 'shift . In any event, Pat Schroer told Helton that Town- send had equivocated on accepting the charge aide job but in the future Schroer would consider calling Helton first if there was any job opening . At the hearing, Schroer denied this version of the conversation but re- peatedly testified that Helton was a' good worker.14 I credit Helton's testimony. Helton worked Thursday night (Thanksgiving) and thereafter voted by challenged ballot in the December 7 election. I conclude that Helton was first notified on November 24 that she was to be terminated effective after Novem- ber 25 , but she was paid for November 26. On November 26 Ruby Wallace became the charge aide and replacement for Nancy Helton . She `came to work on that Friday night and worked through Monday night when she quit. She nevertheless did the same job as Eller and Helton had always performed notwithstand- ing any change of title (charge aide). Indeed, Etler's-un- contradicted and-credited testimony is that Wallace not only received the same pay as Etler, but when Schroer introduced Ruby Wallace to Etler, she told Ruby Wal- lace-to obey Etler's orders until she learned the routine; after that, she could change the routine if she wanted to. Further, counsel for Respondent conceded that Ruby Wallace , like any other employee, ,was hired as a proba- tionary employee . He could not answer the questions (1) how,a supervisor could be hired as a probationary em- ployee, and (2) how a supervisor could be told to follow the directions of a unit employee and be placed under a unit employee to learn the job. Eller credibly testified, without contradiction, that , Wallace's job was not differ- ent than other aides, including herself or Helton; that there was no training for her; and that, as above noted, Wallace was paid the same as Etler according to the paystub which Wallace showed Etler. . In particular, other replacement charge aides started at the ordinary nurses aide rate of pay but were subsequent- ly raised from $3.66 per hour to $3 95 per hour With regard to the present charge aide (Kim Smith), Eller cre- dibly testified that when Smith . is not there, there is no charge aide, thus further contradicting Pat Schroer, who testified that the State required that there be a superviso- ry charge aide present on all shifts , which was the reason that Helton was given the choice of either quitting or be- coming a charge aide. , Eller testified that although she 13 On November 23, 1982, nurses aide Linda Townsend told Pat Schroer that she would accept the job in view of the fact that neither Etler nor Helton accepted it (R Exh 17) 14 Helton. testified that Schroer told her she would consider calling Helton first to fill any future job Schroer dented saying that I do not credit Schroer's denial As will be noted hereafter, Helton was not re- hired to fill an open position because Schroer "changed her mind " discusses problems with charge aide Smith , nothing hap- pened if either Smith or she, at the end of their third shift, requested others to lend a hand when the first shift came on to- work Both ' Smith and Etler asked other em- ployees for help but nothing happened if it was not given. The evidence also shows that scheduling among the the -three third-shift employees is worked out among themselves. Around October 15 and , in any case , before November 2, 1982, Respondent circulated job descriptions for its new supervisory positions of "charge aide" and "head cook." 15 With regard to the duties and responsibilities of the charge aide, there was no proof that any- of the charge aides directed the work of any of the other ,charge aides or did any other work inconsistent with the other charge aides. The evidence shows that the job de- scription,(R. Exhs. 8 and 9) and the organizational chart (R. Exh . 13) were created solely by Respondent's labor relations consultant , (Forshee) and attorney (Fenton). Pat Schroer did not create them and merely acquiesced and adopted them when they were proffered to her , notwith- standing that, -at first, she.testified that her attorney and labor "consultant" merely helped her compose it. She later admitted they composed it and she merely acqui- esced.is 15 The obligations and duties of the charge aide are as follows (R Exh8) , REGENCY MANOR NURSING HOME Job Description Charge Aide The Charge Aide is responsible for planning , coordinating, and providing the management of resident care and service in the Home during his/her shift The Charge Aide will assist , guide, and disci- pline employees under his/her supervision whenever necessary The Charge Aide works under the direction'of the Resident Care Coordi- nator, and provides direct supervision of the Aides I The duties and responsibilities of the Charge Aide include the following - Assume 8-hour responsibility for the Aides , assign their work, and assist the Aides to consistently attain highest quality care , and serv- ice - 2 Keep the Resident Care Coordinator informed of resident infor- mation, incidents, and special needs and problems 3 Conduct report or rounds at the beginning and end of shifts 4 Prepare the job schedules of Aides assign [ed] to his/her shift 5 Confer with the Resident Care Coordinator in evaluating per- sonnel, and recommend promotion and termination 6 Responsibly direct the Aides under his/her supervisor in the performance of their duties' 7 Counsel and discipline employees as necessary Suspension and discharge of, employees may be effected only in consultation with the Resident Care Coordinator" 16 Her testimony was as follows Q 'Did you draft these classifications and descriptions' A Meaning I did write them Q Well did you write them at all, did you really have any in-put into those or are they the product of Mr Forshee9 A -He wrote them, I guess they [Fenton and Forshee] didn 't trust me to do it well,,to ' do a good job ' To the extent , therefore, that Pat Schroer may have implied that For- shee and Fenton were mere draftsmen iii the creation of "supervisors." I do not credit her Further, I have no difficulty in concluding that, apart from her own evident desire to defeat the Union's organizational effort, she accepted Forshee 's and Fenton's paper strategy' as the device to ac- complish that result Nothing could be clearer , from my observation, than ' that Pat Schroer was relatively an innocent , following the orders of Continued 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The Failure to Rehire Nancy Helton in June-1983 Helton was engaged inunion activities and Respond- ent's employees , at all times, on or after ,September 30, 1982, were the object of Respondent's union animus and unfair labor practices, including the November 19 dis- charge of Melvin Hughes in violation of Section 8(a)(1) and (3) of the Act. I do not credit Patricia Shroer's denial that when she told Helton that she was terminated on November 19 (coincidentally on the same day and perhaps a few hours before she , terminated - Melvin Hughes), she had no suspicion or knowledge of Helton's union ;activities . I credit Schroer's testimony that about November 24, when she told Helton that she had actual- ly found a replacement for her and that her'termination was effectuated, she did have knowledge of Helton's union activities, especially when, Helton told her that they,both knew that the real reason she was being let go was because of the Union and because- of Schroei'•s desire to prevent Helton from voting in the approaching election. In any event,' as above noted, I have found that Schroer told Helton' that'in the future, 'she would give her preference if an opening occurred Schroer admitted that Helton was a pleasant person and a good worker There is no question but that about May 30, 1983, Re- spondent, discharged Debbie Pelfrey for cause and an opening for a nurses aide occurred on the second shift. With the job still open, Nancy Helton filed an applica- tion and said that she would work on any shift. Pat Schroer testified that she was already in the process of negotiating with the replacement for Debbie Pelfrey and that on June 15 the replacement, who was negotiated with since June 8, never showed up. Indeed, at the time ,of the hearing, the position was still open. To the extent that Pat Schroer not only denied knowledge of Helton's union sympathies but said that it made 'no difference to her, I do not credit Schroer's show of indifference. When asked at the ; hearing why she -did not rehire Helton, an admittedly good- worker, when the. job was repeatedly open - commencing about, May 30, 1983, Schroer testified, for 'the first - time, that she wanted "fresh blood" and someone who -was-free from the old "turmoil "17 She also mentioned, for the first time, that her husband told her that we had found rocks in' the gar- bage disposal' and she, suspected- that Helton was the author of this sabotage, and that she suspected--Helton of using medical records without authorization in order- to contact the relatives of residents in -Regency -Manor to protest, under the Union's supervision, the treatment ac- corded to these residents Nevertheless, Schroer admitted that there was a job opening for her on the second shift; that Helton had filed a 'timely 'application; and that her .'experts" Cf Brownsboro' Hills Nursing Home, 244 NLRB 269 (1979) Neither Forshee nor Fenton was named as a Respondent or agent - in the consolidated complaint - - _ ; .17 Since the "turmoil" evidently referred to the employees' union ac- tivities, the demand for, "fresh blood" meant employees unacquainted with the "turmoil " Pat Schroer admitted that she "regretted " giving as a reason for not rehiring Helton that Helton had soniethmg'to do with the "turmoil ' ' -- . , had, > principal reason for refusing to hire her was because she was associated with the "turmoil" of the prior events. i 8 Discussion and Conclusions Among the principal factors concerning the resolution of the alleged unlawful termination of Helton on Novem- ber 25 , 1982, are. (a) the Respondent admitted that,the State of Kentucky did not require that any persons in charge of a shift be a statutory supervisor, (rather,. 'the State of Kentucky regulations requires only that some- body be responsible, for the residents); (b) it is uncontest- ed that Respondent told its nurses aides, whom it sought to cause to become charge aides, that the State of Ken- tucky, required: that they become supervisors and that Respondent, supplied these employees with job descrip- tions created by its antiunion labor consultant- (admitted by Patricia Schroer to be against unionization in the nursing industry) and its attorney (Fenton); (c) the State of Kentucky did;not require that Respondent create stat- utory supervisors out of its charge aides, (d) it was Pat Schroer who desired the charge aides have.statutory su- pervisory status, and (e) the charge aides (Ruby Wallace and Kim Smith) -hired by Respondent, on this record; ex- ercised. no supervisory powers regardless of the job de- scriptions that -were previously created by. Respondent's labor consultant and lawyer. As will be noted below, other. alleged supervisors, including the head cook (Betty Smith) and the charge aide on the second shift (Joyce -Miller) were not supervisors notwithstanding that they may have exercised sporadic.supervisory powers: There is no question that in a unit of a size no greater than 16 employees, as here, in the face of Respondent's unfair labor practices, the employees', openly held union meetings, and especially Respondent 's unlawful interro- gations, -threats, and discharge' (Hughes, November 19), an inference could be drawn that Respondent, contrary to its denial, knew that Helton was a member of the Union'well before the time it terminated her on Novem- ber 25, St. Johns Construction Corp., 258 NLRB 471, 480 _(1981), and, separately, it had such, knowledge because Schroer suspected, Etler and-Helton of supporting the ,Union. Her October 4 advice to them 'to have their "Union guy"- put things in - writing to protect them against unconscionable raises in their union , dues , and as- sessments supports this conclusion. On the actual date of notice of discharge, November 24, there was no question that: Schroer knew of Helton 's union sympathies because Heltori• confronted her with the suggestion that she was being replaced because of the Union.and Schroer's desire to prevent -Helton .from voting in the approaching elec- tion.. ' Alternatively,. even if Helton's suspected, union mem- bership-or sympathiesIwere not the exclusive motive for her termination on November 25, I,find that a clear, pre- , 18 Other reasons advanced at the hearing , apparently for the first time, are (l) Schroer was worried over Helton's willingness to follow orders, (2) there was no opening on the third shift (though Helton applied for work on any shift), (3)' "1 just changed my mind", (4) Schroer asked whether Helton was actually available to work , and (5) "I don't like to be put in the position of saying why I' didn't hire her", and (6) Schroer was not happy with any third-shift personnel ' REGENCY MANOR NURSING HOME 1277 , ponderance of the evidence shows that. Respondent's motive in discharging Helton was part of Respondent's union animus and its plan to deprive employees of their statutory right to vote. I conclude, on the basis of this record, that Respondent (and Pat Schroer, in particular), at the 'instigation of Forshee and Fenton, its labor con- sultant and its attorney, adopted Forshee's' and Fenton's scheme to create a new, papier mache job classification system, including the creation of "supervisor," by -which Respondent "i'would offer employees the "supervisor" charge aide position, which,' if refused, carried the alter- native of being terminated from employment. Whether the, purpose of this manuever was to decrease the number of employees qualified to vote in the approach- ing December 7 'election (by either terminating, them or causing them to vote subject to challenge, with Respond- ent claiming them to be supervisors) in order to enhance the voting strength of employees whom it estimated to be against the Union or, in conjunction with the effects of its unfair practices, . to intimidate other employees is immaterial. Assuming, arguendo, that Respondent may lawfully respond to the " Union's , organizing among its employees by creating supervisory positions and. filling them with unit, employees, it may not do so, as here, where (1) by threats of discharge, loss of benefits, or change of job positions it unlawfully coerces unit em- ployees to become supervisors, to prevent -their being able to vote; or (2) the supervisory positions exist on paper only as part of a scheme and the employees per- form essentially their old jobs. Both of these circum- stances exist here Both are part of Pat Schroer's acquies- cence in the scheme to deprive unit -employees of their right to-vote. Where either factor is present, the scheme violates Section 8(a)(1) of the Act. Where, as here, both are present, the violation is even clearer. Cf. ' United States Gypsum ,Co., 105 NLRB 931-936 (1953).• " The evidence in support of the conclusion that the aim of Respondent, coercing employees to become supervi- sors, was unlawful itself and part of an unlawful plan, to affect the election is found in ,the. timing of these "pro- motions" 19 in instituting the new supervisory change in October, Respondent's union animus, Respondent's use of threats of discharge and other retaliation to force unit employes to' become- supervisors even with raises in their pay; the unlawful 'November 19 discharge of Melvin Hughes; the fact that the newly hired replacement 'super- visors did not exercise actual supervisory authority, the fact that Helton's replacement, Supervisor Ruby Wal- lace,- was placed under the direction' and control 'of a mere employee by Schroer until Wallace learned the job; the fact that Schroer did not want Helton working with Wallace, her replacement; even for a 1-day job' familiar- ization purpose; and Respondent's September 30 promise of benefits to employees after the Union filed its election petition. Furthermore, when, on'November-:24, Helton confronted Pat Schroer with the "real reason" for her being discharged (because of the Union and' in order to i9 "[The] more imminent 'a representation 'election ,, the greater the pre- sumption ' that management's 'expression of concern for employees' wel- fare has an impermissible motive " NLRB v Rich's of Plymouth, 578 F 2d 880, 883 (1st Cir 1978), cited in Gordonsville. Industries, 252 NLRB 563, 568 (1980) • prevent Helton from voting), Pat Schroer retreated to the admitted false basis for Helton's being replaced as the reason for -'her discharge. the requirement of the State of Kentucky that the charge aides become statutory super- visors. ' Thus, I conclude that on November 24 Pat Schroer unlawfully-'terminated Helton as of November 25, and that the termination was for the purpose of discriminat- ing against Helton's-union sympathies in violation of Sec- tion 8(a)(3) of the Act and was pursuant to a plan by which Respondent sought to prevent a certain number of employees from voting either by making them "supervi- "sors" or by terminating them. Such a' plan and device, as alleged in complaint paragraph 5(c) violates Section 8(a)(1) of the-Act, and when effectuated with "the dis- charge of an employee who, ' like Helton, is known or suspected of being sympathetic to the Union and refuses the promotion to supervisor, also violates Section 8(a)(3) of the Act. Respondent's admittedly false defense that the replacement of Helton was mandated by Kentucky requirements for a statutory supervisor to be in charge of Regency-Manor residents on all shifts further supports a finding ',of discriminatory motive. Thus, the General Counsel having proved a prima facie case that a motive was unlawful, Respondent failed to meet its statutory burden of proof, by showing that it would have, taken the same action even in the presence of the prima facie case. NLRB. v. Transportation Management Corp., 462 U.S. 393 (1983); Limestone Apparel Corp., 255 NLRB.722 (1981); Wright Line, 251 NLRB 1085 (1980). I therefore conclude that the Respondent, in violation of Section 8(a)(3) and (1) of the Act, unlawfully' discharged Nancy Helton -on November 24, 1982, effective November 25. In reaching the above conclusions, I am not suggesting that an employer, faced with an organizing effort among its employees, may not create a defined supervisory hier- archy; nor am I necessarily suggesting that in so doing, an employer's 'misinterpretation of a 'state law requiring ;the creation of supervisory status, alone, implies unlawful motive' where, as heie, the change in status is simultane- ous with union organizational activity. Where, however, knowledge, animus, and coercion accompany such other factors, and a pending petition, for certification affects such supervisor, a different-case' is presented Compare: Benson Wholesale, Co.,, 164 NLRB 536, 548 (1967), and U.S. Gypsum Co., 105 NLRB 931, 936 (1953). Unlike US. Gypsum, the instant case is not a representation case where the disputed supervisor may merely vote subject to challenge. 'Here, challenge and remedy are to be re- solved.,,, H. Respondent's Unlawful Refusal May 31, 1983, to Rehire Helton At the hearing, the General 'Counsel amended the complaint by alleging that since about May 31, 1983, and continuing thereafter, and" particularly on June 15, 1983, Respondent failed and refused to hire Nancy Helton This failure was alleged-to constitute a separate violation of Section 8(a)(1) and (3) of the Act I-find that this fur- ther alleged action is not a' mere continuation of Re- spondent's prior unlawful discrimination because it re- 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lates to a separate job transaction involving -a job on a different shift` At the hearing, Schroer admitted that about Novem- ber 24 she had conversations with Helton, concerning Helton's support of and sympathy for,,the Union. She also admitted that there was a job openitig in,the period commencing about May 31 which was filled regardless of Helton 's timely, pending job application and regard- less that the job opportunity. repeatedly presented itself. It was open on the day of the hearing, June 15, 1983. She further testified that she would not rehire Helton,. re- gardless of qualifications, unless obliged to do so by force of law. I have credited Helton's testimony, over Schroer's halfhearted denial, that Schroer on November 24 told Helton that she would have preferential status if a job came open . Schroer admitted that Helton was a good worker and a pleasant person. No extended discussion is required to determine that the reason that Helton's application of May-31 was not considered and that she was not then or thereafter hired for the actual job opening was-because of Helton's union activities . Pat Schroer admitted as much when -she stated that the application was not considered because • she wanted "new blood" and that she did• not want Helton because Helton was associated with the "turmoil"' which existed prior to Helton's termination . Absent other expla- nations, I regard "turmoil" as a code word for Helton's association with union activities. 'I therefore conclude that Respondent's failure and refusal to lawfully consider Helton's outstanding application as a nurses ' aide for em- ployment on any shift to be a separate violation of Sec- tion 8(a)(3) and (1) of the Act The Board rule is that the violation of Section 8(a)(1) and (3) is perfected upon Respondent's refusal to give nondiscriminatory consideration to Helton's application. The exact date of the availability of the job is a matter of Respondent's backpay obligation which is properly left to the compliance stage. See C & R Coal Co., supra, and cases cited therein. 20 I. The Challenged Ballots of Joyce Miller, Cheryl Crank, Sharon Strause, and Betty Smith21 Then Regional Director's Report on' Objections and Challenged Ballots notes that: . 20 One must also note the^Janous and shifting explanations, all mciedi- ble. Schroer advanced at the-hearing for her failure to rehire Helton (1) Helton's speculative unwillingness to follow orders, (2) "I just changed my mind" , (3) "I just don't like to be put in the position of saying why I didn't hire her", and (4) she was not happy with all third -shift personnel Such defenses do not meet Respondents burden of proof, i e , showing that Helton would not be considered for reasons other than those sup- porting the prima facie case Wright Line, 251 NLRB ^1083(1980) Indeed, they strengthen the prima facie case - 21 By virtue of my conclusion , above, that Respondent unlawfully ter- minated the employment of Melvin Hughes and Nancy Helton, I eon- clude that their ballots, challenged by Respondent at the -election,'were ballots of unlawfully terminated employees ,Unlawfully terminated em- ployees are employees for voting purposes . Therefore„ their ballots should be opened and counted and the challenges overruled Dutch Boy, Inc, 262 NLRB 4 (1982), Jaybill Steel Products, 258 NLRB 1180, 1195 (1981) Although the parties are in agreement that Miller, Crank, Strause, and Smith were classifiedas super- visors at the time of the election, , the petitioner -. (Union)'contrary to the employer, maintains the em- ployer unlawfully created the supervisory positions to which these individuals were assigned in order to - discourage employees' activities.on behalf of the pe- titioner and to influence the outcome of the elec- tion. On January 26,. 1983 , a -complaint , issued -in Case 9-CA-19047 alleging, among other things, that the employer unlawfully:classified these individuals as -supervisors in violation .of Section 8(a)(1) of the • Act. (1) I have concluded, above, that a preponderance of credible evidence supports this allegation (par. 5(c)). Thus, for -purposes of resolving the challenges based on supervisory status (Joyce Miller, Sharon . Strause, and Betty- Smith), if is unnecessary to analyze or determine whether, -irt fact, these persons were statutory supervi- sors For since their status was the result of an unlawful and-coercive scheme to ensure the undermining of possi- ble union voting strength by creation of "'supervisory" positions, the challenges should be overruled, without regard to.actual supervisory capacity, if ''Only to ensure the integrity of Board election processes and prevent ,ob- struction thereof by unlawful schemes ' and devices. Cf. Cherokee, Brick Bt Tile Co., 100 NLRB 612, 615 (1951). (2) Although the merits of whether they are statutory supervisors need not thus be reached , in resolving the challenges, if- the, merits were ,reached, 1-would find the following With regard to the challenged .ballots of Joyce-Miller, Cheryl Crank, Sharon Strause, and Betty Smith, the par- ties at the hearing entered into a stipulation ' whereby they agreed that ( 1) at all material times prior - to and in- cluding September 13, 1982, Cheryl Crank was a-unit em- ployee but -thereafter became a supervisor within the meaning of the Act and (2) that her ballot in the Decem- ber 7, 1982- election should not be opened or counted. Since Cheryl Crank on or before September 13 was stip- ulated to be a' unit employee, and previously signed a union membership application card ("9/8/82"; G.C. Exh. .6(c)) I Will, as' seen below, count her card for union ma- jority, purposes, but will recommend to the Board, in view of' this stipulation, that the challenge to Cheryl Crank's ' vote be sustained, and that her ballot not be opened. ,,With regard to Joyce Miller and Sharon Strause, the parties entered ,intoa further stipulation , In the period prior to and . including September 13, 1982, Sharon. Strause's duties included those patient care functions . that a nurse's aide (a unit employee) performed and that those duties took a majority of her working time„ and further, that whatever super- visory duties,, if any,, Strause may ' have 'had were the same . as, and • no more than, those of -Joyce Miller in 'the'same period of time. REGENCY MANOR NURSING HOME 1279 Joyce Miller Miller, challenged by the Board agent , testified that at the time of the hearing she was a nurses aide and that before Septemer 13, 1982, was a "charge aide" having become charge aide on the second shift 1 year after start- ing her employment with Respondent's predecessor. She became charge aide before the Union distributed its membership application cards in September 1982. The 'General Counsel''contends that neither before nor after September 13, 1982 , was Joyce Miller , as "change aide," a supervisor within the meaning of the Act. Respondent contends that Miller, as a "charge aide," was a supervi- sorwithin the meaning of the Act even before the distri- bution of Respondent's new charge aide job descriptions about October 1982; and that, whatever her status before October 1982, thereafter she surely was a statutory su- pervisor at the time of the December 7 election In particular, Miller was " first employed by the prede- cessor of Respondent of Regency Manor in 1976 and got the title of charge aide in 1977 . Her duties since April 1982, when Respondent - took over the ownership and management , at Regency Manor, through September 1982 were the same as all other charge 'aides on the second shift , except that she filled out the transfer sheets of patients to record their transfer into and out of Re- spondent's facility. The other nurses aides on the second shift did not do so. Miller received 10 cents per hour more than other aides based only on her longevity. She did not consider herself to be a supervisor. - Sometime on or after November 2, 4982 , Pat Schroer spoke to her about her job as a charge .aide She asked Miller to become a "supervisor " Miller told , her she would have to think about it Schroer told her that she would have all responsibilities for the patients including reading the patients' charts and scheduling the other full- time and one part-time nurses aides on the second shift (2:15 to 10:45 p .m.). Miller had always read patients' charts, but scheduling was an added .element One week later Miller sought out Schroer and told her that she did not know what to do about accepting the position. Schroer told her that there would be no change in her job and that she would give her more money if she became the charge aide. Schroer told her that if she did not take the supervisor's job she would have to resign "Miller`tes'- tified that she was the sole support of her family and she took the job. Thereafter , with three nurses aides , includ- ing herself, on the second shift on'. I day of the week, and two nurses aides, including herself, on the shift all other days' of the week, Miller did the scheduling of the shifts for the employees but, nevertheless, did the same job she had always done 'including reading the patients ' charts. Otherwise, there was ;no difference in her job . She-was, however, raised in pay from $3.76 per hour to $3 95 per hour. In addition to scheduling ' requests for the other nurses aides for time off, in, case 'of illness of an employee, she calls in 'a substitute and permits the sick employee to leave. Other nurses aides "do-'not do this. She also tells employees what they are supposed to do and no other nurses aide does what she does, including revisions of a schedule. On the other hand , on her days off (2 days per week), an ordinary nurses aide takes over her position, although sometimes Miller leaves instructions for the nurses aide who becomes the charge aide. Miller testified that she never evaluated any employee or recommended any employee for a promotion. In case of discipline,-she merely reports any breach of discipline to Pat Schroer. Discussion and Conclusion - -It is apparent that the principal change in her job, con- sistent with the stipulation , is the fact that Miller now schedules'the nurses aides on her shift for worktime and time off She was also raised in pay from $3.76 an hour to $3.95 an hour. There is no evidence that after September 13 she spent her worktime differently - she still devoted more than 50 percent of her time doing unit work . In fact, her job, as Pat. Schroer emphasized , remained the same as it -did before her "promotion " I also note the small size of the group of nurses aides on the second shift (at most -two and, most often, one nurses aide along with Miller on the shift), the stipulation that a majority of her working time was spent in the unit work of other nurses aides, and the retention of the right to discipline employees remaining in-Respondent rather" than in Miller. The only substantial differences are Miller's righi to prefer herself to her co- aide on 'scheduling her own shift;. her ability to call in substitutes for sick employees, and the 19-cent-per-hour wage increase . In these - circumstances, I would find Joyce Miller, at all material times, to be a nonsuperviso- ry leadwoman rather than a statutory supervisor The Board rule - is that an employee who, as stipulated , spends 50 percent or more of her time (up to September 13) per- forming nonsupervisory duties cannot be denied the ad- vantages of collective bargaining . Statler Industries, 244 NLRB 144, 151 (1979). There was no suggestion, much less proof, that after September 13 Miller 's scheduling employees or any other nonunit duty would take 50 per- cent or more of her time. As above noted , on the con- trary, she testified that her job was essentially the same as it was before her promotion and that she spent her time doing unit work . I am also mindful of the fact, moreover, that Schroer, without contradiction, told Miller that there would be no change in her job except the -payment of more money. Prior to the change in job, Miller did not perform scheduling . It- therefore appears that Respondent's own evaluation - was that the change in the nature of the job was insignificant notwithstanding that Miller may have -exercised sporadic supervisory powers and 'that Respondent did not regard . Miller and Miller's 'ne'w right to' schedule employees or to permit the sick employee time off as significant elements.22 22 See especially NLRB v Hillview Health Care Center, 705 F 2d 1461 (7th Gr 1983), where the court, dealing with subprofessionals (licensed practical nurses), observed that such employees, having the powers to fill out patients' charts, make written evaluations of subordinate nurses aides, report work infractions , assign work to"durses aides , send home nurses aides on a claim of illness , and schedule nurses aides for overtime , are not statutory supervisors with the meaning of Sec 2( 11) where the use of dis- cretion is either routine or exercised within the bounds of professional judgment based on experience Here: of course , the charge aides are not LPNs -1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the Board is not bound by the employer's evalua- tion of an employee's job, it is probative that Schroer re- garded the change as no change . I would therefore rec- ommend that the challenge to Miller's ballot be rejected and that Miller's ballot be opened and counted. Concerning the period prior to and including Septem- ber 13, 1982, Miller did not have the right to schedule and was paid the same rates as the other nurses aides. This was so even though she was "charge aide" for the second shift. I conclude -therefore that, regardless of her postpromotion status on and prior to September 13, 1982, Miller was not a supervisor within the meaning of the Act and was a unit employee. Sharon Strause .Sharon Strause testified that she made out work sched- ules for employees after she received the title of resident care coordinator and that she received this title after she signed her union membership application card on Sep- tember 8, 1982 (G.C. Exh 6(h)). As, above noted, the parties, at the hearing, entered into a stipulation , above, that Strause's duties up to and including September 13 included those patient care func- tions that a nurses aide performed, which duties took a majority of her time, and that she had the same duties as Joyce Miller with regard to any supervisory duties that she had. Consistent with.this stipulation and my findings with regard to Miller, I conclude that up to and includ- ing September 13, 1982, Sharon Strause was a unit em- ployee and not a supervisor within meaning of the Act. According to Schroer, Sharon Strause was the best of all the charge aides, was in charge of the first shift, and re- ceived the 10-cent-per-hour raise to $4 an hour on Sep- tember 11, 1982 In the week ending November 6, she was raised to $4.25 an hour and given the key to the office and the title of resident care coordinator She re- ceived this title about the same time at the very end of October although Pat Schroer started talking to her about the job 2 weeks before this time. Her job decrip- tion (R. Exh. 12) shows that she has the power, inter alia, to hire new employees. There being no showing that she, unlike Miller, was forced or coerced into the supervisory job and it appear- ing that she also has full charge of medical records and was placed immediately under Pat Schroer-in the chain of command, I conclude that on and after the week ending November 6, Strause became a supervisor within the meaning of the Act. I would ordinarily recommend to the Board that the challenge to her ballot (on the ground that she was a supervisor) filed by petitioner be sustained and that her ballot not be opened or counted Notwithstanding this recommendation, I have previously found that Respondent's entire supervisory plan was an unlawful device to undermine union support, and there- fore Strause's ballot be counted. If the Board rejects such recommendation, in view of the absence of proof of coercion and the presence of the power to hire, I would recommend that Strause's ballot not be opened or count- ed. Betty Smith Respondent challenged Betty Smith's ballot on the ground that at all material times she was a supervisor within the meaning of Section 2(11) of the Act. Betty Smith signed a membership application card (G.C. Exh. 6(i)) on September 8, 1982. She'has been, at all material times, a cook employed by Respondent working Sunday through Thursday from 4:30 a.m. to 1 p.m. each day. The other cooks employed by Respond- ent were Debbie Burns and Mary Hughes (wife of Melvin Hughes). Debbie Burns is Betty Smith's daugh- ter. Debbie Burns' hours are from 10:30 a.m. to 7 p.m. Mary Hughes, the "swing" cook, has an irregular sched- ule: 3 days per week she works 10:30 p.m. to 7 a.m and on Friday and Saturday (Betty Smith's days off),from 4:30 to 7 a.m. Betty Smith is the most senior cook, does almost all the ordering of food, but does no cleaning of stoves or refrigerators. This is done by the other cooks. Unlike the other cooks, she is off every Friday and Saturday and re- ceived the title "head cook"on November 3, 1982. She had several conversations with Pat Schroer about the title "head cook." In none of these conversations did she ever speak to Schroer nor did Schroer speak to her about the Union. , The first conversation was in the kitchen about Octo- ber 20, 1982. Schroer asked herto take the position of head cook and Smith refused because -she did not want to be a "boss." Schroer told her -that the State of Ken- tucky required that she become head cook and that she or someone else would have to take the job. The second conversation on and between October 21 and 24, 1982, also occurred in the kitchen with Mary Hughes-present. Schroer again asked Smith to take the job and, on Smith's refusal, asked her if she cared if she asked Hughes or the other cook 'then employed, a Mrs. Rowe. Smith told Schroer that she did not care The third conversation, on October 28, 1982; occurred when Schroer again requested that Smith take the job and Smith again refused At this point, Schroer told her that she either had to take the job or become a nurses aide and be put out on the floor. Respondent would hire another cook. On the other hand, Schroer told her that if she took the job she would get an increase in pay. If she refused the job, her pay would be cut. At that time she was making $3.76 per hour, 10 cents per hour more than the other cooks. Betty Smith, an elderly lady, testified that she was unable to do the work of a nurses aide on' the floor and decided, on November 2, to take the job and receive the increase in pay. She testified that Martha Rowe refused the job and she decided to take it because she could not perform any other job. • With the pay'raise and the new title, Betty Smith testi- fied that she was given the authority to tell the other cooks what to do • and now, instead of having Mary Hughes order some of the groceries on Friday, Betty Smith was obligated to order all the groceries herself. She also testified that Pat Schroer told her that her 'only authority,--in case of any disagreement among the other REGENCY MANOR NURSING HOME 1281 cooks; was to tell Pat Schroer of any breach of disci- pline. - At the time she voted, Pat Schroer told her to vote and that there would be a challenged-ballot. Schroer told her that she would take her place in the kitchen while she voted. When Betty Smith became "head cook," she received the new job description (R. Exh. 9) -from Pat Schroer. Contrary to the credited Smith testimony that Schroer told her that her only authority with regard to disciplin- ing employees was to tell Pat Schroer of any breach, the job description asserts that as head cook, Smith will "dis- cipline employees under her supervision whenever neces- sary." The testimony but not the job' description power is accpeted. The contrary powers in the job description do not exist. The job description also refers to her right to prepare the job schedules for the dietary employees. and to discipline and counsel employees as necessary. As above noted, she does not counsel or discipline anyone. The job schedules, on her uncontradicted and credited. testimony, were created by Pat Schroer exclusively. Where the job description talks of evaluating personnel and recommending promotion and' termination, this has never occurred. Nor has she counseled with Pat Schroer nor has she done anything other than order kitchen sup- plies 23 With regard to directing the work of the dietary employees or assigning them work, she has given the same orders as the senior cook has done before and after the change of title I conclude that at all material times, both before and after September' 13 and before and after November 2 when she took the title head cook, Betty Smith has remained and is a unit employee and not a su- pervisor. That she is the most experienced, highest paid, and oldest cook is not determinative of her standing as a unit employee. That she is perhaps the "lead" 'cook in the three-cook establishment is certainly arquable and her right to order supplies and tell the the other employ- ees the order of cooking and cleaning leads to that con- clusion. The "powers" conferred on her in the superviso- ry job description, based on her credited testimony, are a fiction. My observation of Betty Smith and the record herein shows that she effectively exercises none of the discrete powers enumerated in Section 2(11) of the Act. See NLRB v. Hillviety Health Care Center, 705 F.2d 1461 (7th Cir 1983). I do not credit Patricia Schroer's testi- mony in conflict with these findings. The record,is clear that Schroer,. by threat of forcing her to become a nurses aide, a job she could not per- form, coerced her into becoming. "head cook." . Further, I have already concluded that the decision to make her a "supervisor," the above coercion, and the creation of supervisory positions in the job description (composed by the labor consultant and the lawyer) were all part of a scheme and device 'to deceive the Board and, as with other unit employees, deprive unit employee Smith of her right to vote in the. election and the right to support a labor organization. I therefore recommend that Respondent's challenge to Betty Smith on the ground of 23 Respondent has not contended that any of the new supervisors are managerial personnel and,'on that ground, not within the unit her being a supervisor be rejected, and that her ballot be opened and counted. With 'regard to challenges therefore, it is recommend- ed that the challenges of Melvin Hughes, Nancy Helton, Joyce Miller, and Betty Smith be rejected and that their ballots be opened -and counted. Sharon Strause's ballot should be dealt with according to my alternative recom- mendation to -the Board. The challenge to Cheryl Crank's ballot should be sustained. J. Violation of Section 8(a)(5); Remedies It was stipulated, and the testimony of Patricia Schroer showed, that aside from herself, there were 16 persons employed at Regency Manor at all material times up through September 13, 1982, and that that number (16) would be diminished to the extent that Sharon Strause, Joyce Miller, Betty Smith, and Cheryl Crank were found not to be employees but supervisors within the meaning of the Act I have already concluded that neither Betty Smith nor Joyce Miller was at any time a supervisor within the meaning of the Act, and I conclude that Sharon Strause was not a supervisor up through and including September 13, 1982. It was stipu- lated, and I find, that at all material times prior to Sep- tember 13, Cheryl Crank was a unit employee, thereafter became a supervisor,, and that her ballot not be opened or counted. Under the above-stated facts, it is apparent that any union cards signed by Crank, Miller, Smith, or Strause on or before September 13, at which time, as I have found, all were unit employees, must be counted as part of the Union's showing of a majority. I therefore con- clude, on the basis of uncontested and credited testimony and cards in evidence, that there were at all material times 16 employees employed in the stipulated appropri- ate unit24 and that there were 13 signed and valid union membership application cards delivered to the Union on or before September 13, 1982, when it made its demand for recognition to the Respondent (G.C. Exhs 3(a) and (b)).25 It is clear that 13 cards out of 16 unit employees create a majority. I find therefore that, at all material times up to and including the Union's September 13 demand for recognition, the Union. was and now is the majority representative of Respondent's employees in an appropriate unit within the meaning of Section 9(a) and (b) of the Act. In view of the findings, above, of serious unfair labor practices, including coercive interrogation, discharges, threats of loss of existing benefits and of closedown, and 24 The appropriate bargaining unit is agreed to have been and is All full-time and regular part-time employees employed by the Em- ployer at its Independence, Kentucky facility, excluding all profes- sional employees, guards and resident care coordinator, assistant care coordinator, charge aide, head cook, administrator, and all other su- pervisors as defined in the Act 25 The employees who signed cards on or before September 13, 1982, were those contained in G C Exhs '6(a) through (m) Melvin Hughes, Joyce Miller, Cheryl Crank, Debbie Pelfrey, Cheryl Lynn Hamilton, Lo-_ recta Saylor, Loretta Powers, Sharon Strause, Betty Smith, Mary Hughes, Nancy Helton, Linda Townsend, and Linda Jo Etler All cards were "single-purpose" cards There was no attempt to show that any of the cards should be rejected for majority purposes on the ground of mis- representation as to their purpose 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's adoption of, acquiescence in, and coercive implementation of a hoax and plan designed by .its labor relations consultant (Tom Forshee) and its attorney (Fenton) to create specious supervisory positions, I con- clude that if the vote, on the opening of the challenged ballots of Helton, Hughes, Strause, Smith, and Miller and the -service of a revised tally thereof, demonstrates a union majority, then the Board should certify the Union; and if the revised tally does not show a majority of valid votes cast for the Union, then it would appear to me that the election, on the above timely objections, should be set aside, and that these unfair labor practices were suffi- cient in gravity and scope to require the issuance of a bargaining order on the basis of the above cards in favor of the Union. Respondent's misconduct has fouled` the election process by unfair labor practices and manipula- tion of voting eligibility. There need be no extensive evaluation of the wisdom of issuing such a remedial bar- gaining order under NLRB v. Gissel Packing - Co , 395 U S. 575 (1969), as opposed to the preferred statutory method of resolving questions concerning representation mentioned in Summer & Co. v. NLRB, 419 U.S. 301 (D.C. Cir. 1974) a Board-conducted election. For here, not only were there the widespread "hallmark" viola- tions (unlawful discharges, threats of loss of employment, coercive interrogation) which the Board and court of ap- peals -have regularly found to fundamentally 'interfere with the election process and which have a lingering coervice impact on employee choice, NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980); but here we have an unlawful hoax supported' by -coercion which Respondent attempted' to perpetrate on the Union, the employees, and the Board, the confusion and lingering effects' of which effectively undermine the possibility of having a fair election in the above appropriate unit. I would there- fore alternatively recommend to the Board 'in the ab- sence of union, certification that a bargaining order be issued. I futher would recommend to the Board that Respond- ent, by the severity of its unlawful conduct, has forfeited its right to an election I also recommend the bargaining order be dated to run commencing September 13, 1982, the date on which the Union requested lawful recogni- tion, rather than the date on which the Respondent em- barked on its course of serious unfair labor practices (September 30, 1982). This earlier date tends to protect unit employees from intermediate changes in terms and conditions of employment. See Dutch Boy, Inc, 262 NLRB 4 (1982). Compare Gordonsville Industries, 252 NLRB 563, 565 fn. 15 (1980), with Trading Port„ Inc.,, 219 NLRB 298 (1975) . Lastly, consistent with paragraph 5(c) of the com- plaint, as amended, I find and conclude that since about September 30, 1982, Respondent created and coercively assigned, certain, fob, classifications to. undermine union 'support among its employes; and I further find that it did so in order to interfere with the conduct of the Board-, conducted election of-December 7, 1982. OTHER REMEDIES I shall recommend the reinstatement of Melvin Hughes to' his old or substantially equivalent job and of Nancy Helton as a nurses aide on any shift,. discharging, if nec- essary, any employees hired on or after November 19, 1982, and that.Respondent make each of them whole by payment to them of backpay running from the date of their respective discharges to,the date of offers of rein- statement, less net interim earnings, computed in the manner established by the Board in F. W Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp, 231 NLRB 651 , (1977).. See ,generally Isis Plumbing Co., 138 NLRB 716 (1962). `Respondent sh'all- also be ordered to remove from its files any references to the above unlawful discharges and refusals to rehire and shall notify Nancy Helton and Melvin Hughes that this has been done and that such notations will not be used as a basis for future personnel actions against them. Further, in view of my findings that Joyce Miller and Betty Smith were unlawfully coerced, for an unlawful purpose, into accepting "supervisory". positions, Re- spondent shall be directed to promptly offer to return them to their jobs as they existed on and before Septem- ber 13, 1982, and make them whole, in the above manner, for net backpay or loss of benefits,, if any, they may have suffered by reason of Respondent's unlawful conduct toward them Neither Joyce Miller nor Betty Smith, however, shall be obligated to accept any lesser position or loss'-of pay thereby. , In view of my' having found, on the basis of the Union's timely filed objections consisting of unfair labor practices, that Respondent's unlawful conduct constitut- ed objectionable conduct sufficient to set aside the elec- tion, see Irving Air Chute Co., 149 NLRB 627, 643 (1964), I need not treat or deal with any of the other timely ob- jections filed by the Union, including the failure to cover the window in Respondent's office which overlooked the voting area in the conference room Lastly, the nature of Respondent's unfair labor prac- tices,, including its willingness to adopt a scheme to inter- fere with Board process, demonstrates the necessity for a broad prohibition against any other further conduct de- signed to interfere with statutory rights CONCLUSIONS OF LAW 1. Respondent Jean Foust, Sole Proprietor, doing busi- ness as Regency Manor Nursing 'Home is an employer engaged in commerce within the meaning -of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers International Union, • Local 1099, AFL-CIO-CLC (the Union) is a labor organization within the meaning of Section 2(5) of the Act. t - - 3. Since about September 30, 1982, Respondent coer- cively interrogated employees concerning, their union ac- tivities and, sympathies; threatened employees- with dis- charge, closedown, and other- reprisals if they engaged in activities on behalf of the Union; threatened employees with changes in terms and conditions of employment in- cluding wages. if the employees refused to accept super- visory positions; made promises of economic benefits to discourage employees' union support; threatened employ- ees with loss of existing wages and benefits if they should select the Union to represent them and if the REGENCY MANOR NURSING HOME- 1283 Union engaged in collective bargaining; and-,created, and by coercion assigned, unit employees to certain supervi- sory classifications in a scheme to undermine union sup- port, among its employees and to interfere with their right to vote in a Board-conducted election, all of which conduct, violates Section 8(a)(1) of the Act. 4. By discharging, respectively, about November 19, , 1982, and November 25, 1982, its employees Melvin Hughes and Nancy Helton, and commencing about May• 31, 1983, independently refusing to reemploy or rehire Nancy Helton because of their union sympathies and ac- tivities and because Respondent desired to prevent them from voting in a Board-conducted election, Respondent discriminated against its employees, thereby discouraging their membership in, sympathy for, and activities on behalf of the aforesaid Union, all of which conduct vio- lated Section 8(a)(1) and (3) of the Act. 5. All full-time and regular part-time employees em- ployed by Respondent at its Independence, Kentucy fa- cility, excluding all professional employees, guards, resi- dent care coordinator, assistant resident care coordinator, charge aide, head cook, administrator, and all other su- pervisors as defined in teh Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since on the after September 13, 1982, the Union herein has been, and is, the exclusive repre- sentative of all of the employees in the aforesaid appro- priate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, within the meaning of Section 9(a) of the Act. 7. By refusing, on and after September 13, 1982, to bargain in good faith collectively in the above unit with the aforesaid Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 ORDER The Respondent, Jean Foust, Sole Proprietor, doing business as Regency Manor Nursing Home , Independ- ence, Kentucky, her agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and 'bargain collectively in good faith with United Food and Commercial Workers International Union, Local 1099, AFL-CIO-CLC (the Union) as the exclusive bargaining representative of all- employees in the appropriate unit set forth above with respect to rates of pay , hours, wages, and other terms and conditions of employment. (b) Discharging, refusing to rehire or reemploy, or otherwise discriminating.. against employees because of their activities on behalf of, membership in, or sympa- thies for the Union or any other labor organization: or because -of a desire to-prevent employees from voting in a Board-conducted election (c) Threatening employees for, assisting or supporting the Union or any other :labor organization with dis- charge, change of jobs„ loss of benefits, or changes in their terms and conditions of employment; promising or granting benefits to employees to induce them to refrain from supporting- the Union or.any other labor organiza- tion; and creating and, by threats and coercion, assigning supervisory job classifications to employees in order to underline union support among employees or in order to interfere with their right to vote in Board-conducted elections. . (d) Coercively interrogating employees concerning union or protected concerted activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist any labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any and all such activi- ties. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Melvin Hughes, Nancy Helton, Joyce Miller, and Betty Smith immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy sec- tion of the decision. (b) Recognize, effective September 13, 1982, and, on request, bargain with the Union as the exclusive repre- sentative of the employees in the appropriate unit set forth above concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (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) Post at its place of business in Independence, Ken- tucky, copies of the attached notice marked "Appen- dix."27 Copies of the notice, on forms provided by the 26 If no exceptions are filed as provided by Sec 102 46 of the Board's 27 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation- poses al Labor Relations Board " 1284 ' DECISIONS' OF NATIONAL 'LABOR RELATIONS BOARD Regional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon 'receipt and maintained for 60 consecutive days iii conspicuous places including all places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. ' - (f) Notify the Regional -Director' in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT'IS FURTHER ORDERED that the challenges to the bal- lots of -Melvin- Hughts, 'Nancy Helton,- Joyce Miller, Sharon Strause, and Betty Smith, having been overruled, shall be opened and counted and a revised tally' of ballots be issued and served on the parties. If the tally shows a majority vote for the Union, then the Union shall be cer- tified as representative in the above-appropriate unit. If the revised tally fails to- show that the Union has re- ceived a majority of the valid ballots thus counted, the election shall be set aside and an order -directing Re- spondent to bargain in the above-appropriate unit shall issue.- See Gordonsville Industries, 252 NLRB 563, 604- 605 (1980). ' I