The Meadows East Inc.

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Meadows East Inc., and General Drivers, Ware- housemen & Helpers Local Union No. 89 , affili- ated with the International Brotherhood of ' Teamsters, Chauffeurs, Warehousemen and Helpers of America.-Case 9-CA-17865 3'1 July 1985 ' ' DECISION'AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 26 August 1983 Administrative Law Judge Peter E. Donnelly issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. . The National Labor .Relations Board has delegat ed- its authority in this proceeding ' to a -three- member panel. The Board' has considered the decision and the • • record in light of the exceptions and briefs and has decided to affirm the' judge's rulings,'findings, and conclusions'`, and to ?adopt 'the ' recommended Order.''; • , . `ORDER' The, National. Labor Relations Board adopts the recommended Order of the administrative law judge -and orders-that the ' Respondent, . Meadows East Inc., Louisville; Kentucky; itsofficers, agents,' successors, arid' assigns, shall take the action set forth in the Order: i ' In adopting the judge's.conclusion,that the Respondent did not deny employees Barnett and Gne'shaber their rights under NLRB v J Wein- garten, 420 U S 251-(1975), we rely on Sears, Roebuck' & Co, 274 NLRB 230 (1985), which holds that Weingaiten''representation rights apply only to unionized employees In addition, we•not& that the judge inadvertently omitted "not" from his finding, "Nor can it be said that they were sus- pended because they insisted on [not] being interviewed separately " Although no exceptions were filed to the judge's conclusion that the Respondent's solicitation and distribution rules'are unlawful, we point out that T R W :Bearings; 257' NLRB 442'(1981),,-on which the judge relied, has been partially overruled in Our 'Way,, Inc, 268 NLRB 394 (1983) Nonetheless, the rules are unlawful under Our Way DECISION ""STATEI LENT OF THECASE:': ^': - PETER E.-.DONNELLY, Administrative Law Judge. The original charge was filed on January:14; 1982, by Gener- al Drivers, Warehousemen and.,Helpers Local 'Union No. 89, affiliated; 'with: ;the•^:International, "Brotherhood', of Teamsters, Chauffeurs,: Warehousemen;'and•'Helpers.of America (the :Union or the Charging -P,arty)- An amend- ed charge; was filed-by • the Union,'on February-5, and-on February 23, 1982, a complaint was issued alleging that The Meadows East. Inc. (Employer or Respondent) vio- lated Section-8(a)(1) and, (3) of, the ' Acf; `by-suspending and then discharging Helen Grieshaber and Margaret Barnett. The complaint also alleges that Respondent vio- lated Section 8(a)(1) of the Act by transferring Grie- shaber and Barnett and by refusing to.allow them to be counseled jointly ' Complaint was amended at the hearing to allege that Respondent also violated Section 8(a)(1) of the Act by promulgating and maintaining invalid no-so- licitation rules and threatening to close the nursing facili- ty if the employees selected representation by the Union. An answer was timely filed by Respondent on February 26, 1982 Pursuant to notice , a hearing was held before me on October 21 and 22 and November 3 and 4, all in 1982. Briefs have been timely filed by the General Coun- sel and Respondent which have been duly considered. - FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS The Employer is a Kentucky corporation with an office and place of business in Louisville, Kentucky, where it is engaged in the operation of a nursing home. During the past 12 months, the Employer derived gross revenues in excess of $100,000 from its operations and purchased and received products, goods, and materials valued in excess of $5000 at its Louisville, Kentucky fa- cility directly from points outside the Commonwealth of Kentucky. Complaint alleges, the- answer admits, and I find that the Employer,is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A Facts 1 The discharges of Grteshaber and Barnett Respondent is a health care facility caring for about 152 patients ' as of June-1982.1 Residents of the facility range from those requiring only limited nursing care to those requiring extensive medical attention.-The facility operates two intermediate care wings for those residents requiring' a greater degree of care an'd a personal care wing for those more able to 'care for, themselves. All three wings operate with three shifts, i.e., 7 a.m to 3 p.m. -(a.m.), 3 to 11 p.m (p.m.), and 11 p.m. to 7 a.m. (night). Grieshaber was employed on the night shift as a medicine aide on the 'personal 'care wing. Barnett was employed on the same shift. as a certified medical techni- cian on one of, the intermediate care wings One of the jobs assigned to the night shift was getting up for breakfast those residents who were not able to do it themselves. Those,. requiring such assistance were on a "get up" list. The process of getting those patients up began about 5:30 a.m. During the last part of 1981 as the ' All dates refer to 1982 unless otherwise indicated 275 NLRB No. 181 ' MEADOWS EAST INC. facility had expanded, the number- of patients requiring such assistance had increased. This caused some dissatis- faction among the employees, particularly nurses aides, since it increased their workload. On December 27, 1981, one of the aides complained about this to Grieshaber and • Barnette and thereupon Grieshaber wrote a note to Joanne Becker, director of nursing, complaining about the situation. Grieshaber signed for herself and, for Bar- nett. The note was also signed by the other night-shift employees. Grieshaber testified that she taped the note to Becker's door because Becker worked. days and did not come in until after 7 a.m., after the night shift had ended. Becker testified that it was not uncommon for employees to communicate with her in this fashion about a variety of matters, but that she has no recollection of ever seeing the note and the record does not otherwise -indicate that the note was ever seen by Becker. At the time of the note, December' 27, 1981, Janet Deal, a part-time shift supervisor, was working as night- shift supervisor. On December 28, 1981, Judy Klotz was hired and began work as the permanent night-shift super- visor Her employment was short-lived. About Decem- ' ber 30, Klotz called Becker and, according to' Becker, told her about certain problems she_ was having on the night shift. She referred to a dispute between employees and the fact that Grieshaber had approached her on her' first night of employment telling her that she had • walked into a "hornet's nest."3 She suggested that there were too many chiefs and very few Indians on the night shift- and and Klotz identified the problems as limited to the per- sonal care wing and the I.C_.-1 `wing where Barnett worked. Klotz did not resign during this conversation, but within about 24 hours her husband 'called and re- signed for her Becker testified that Klotz' sudden resig- nation prompted her to investigate the night-shift situa- tion. ' Becker spoke with Deanna Diehl, a part-time nursing supervisor on the night shift from June 1981 until she left in June 1982. Diehl told Becker 'that she had not seen Grieshaber or Barnett either sleeping or playing cards on' the job,4 but that she did notice a change in attitude on the part of Grieshaber and - Barnett. Diehl' testified that Barnett was "resentful" 'since she felt that Herman, whom she liked, had been foiced to resign. Becker also spoke to Janet Dale, another part-time supervisor on the night shift, who told her that her morale was bad- on' the night shift and that she had seen Grieshaber with her head down and apparently'sleeping.' - • 2 Apparently, Grieshaber and Barnett occasionally exercised some su- pervisory function on this shift in.the absence of a night-shift supervisor It is undisputed that retaining a permanent shift supervisor for the night shift had been a problem 9 Grieshaber testified, "I don't know if those were the exact words or not, but I did inform her of this situation and may have ' said something pretty close to that I know I said she had walked'into a mess " 4 It appears that Blanche.Yeager, a certified medical technician (CMT) on the night shift, about November 1981, reported to Becker that there was sleeping by employees on the night shift and identified several, in- cluding Grieshaber and Barnett, as well as Alice Herman, the -night=shift supervisor Becker confronted Herman with this allegation 'and,-while Herman denied it, she resigned about November 15, 1981' Lynn Everson, supervisor on the p in shift, told Becker that Bonnie Teson, an employee who normally worked on the night shift, 'had told her that sleeping was going on during the night shift 1323 These considerations caused Becker to conclude that a transfer of Grieshaber . and Barnett to the a .m. shift would improve the situation by providing closer supervi- sion for them,- because more supervisors worked during the day, notably Becker herself, while at the same time allowing Respondent to retain the services of Grieshaber and Barnett (whose abilities were concededly satisfac- tory). A decision was made at the same time ,to transfer a nurses aide 'named Marie ' Jewell because Becker felt, from the reports she hid received , that Jewell was, a poor 'worker and a "gossip" who created friction among, other employees: It'does not appear that the earlier note' complaining of the "get up" list was a factor in the deci- sion since it is unrebutted that Becker did not recall ever seeing that note. On January 6, Becker discussed these transfers with Debbie Finneran, the administrator of the nursing home, who concurred in her decision . Becker then arranged 'for meetings' that night at 11 p.m. to advise Grieshaber, Bar- nett, and Jewell of their transfers . The employees were called in separately, with Barnett first. At Becker's re- quest, Diehl was present, as was Everson, who was held over from the p.m. shift. Becker -spoke from longhand notes at these meetings. She advised Barnett that .certain problems were raised during Klotz' resignation, particu- larly low morale, card playing , and sleeping during the shift. Barnett did not recall responding to the allegations of the. sleeping, but admitted that she played cards. When Becker told Barnett that she was being transferred to the day shift, effective Monday , January 11 , Barnett protested that she did not have transportation or a baby- sitter: Becker agreed- to give -her more time to make ar- rangements for the change. The meeting ended without Barnett having accepted the transfer, and expressing • the opinion that she had been fired , despite Becker telling her that she was not being fired , but being transferred to the day shift. Becker prepared a longhand memo prior to this meeting, to which she added certain longhand notes during the meeting, all of which was typed as a file memo the' following day. This memo, signed by Becker, reads: • The following problems were brought to my at- . tention- during the resignation and-exit interview of Judy' Klotz, LPN Supervisor: - 1. Employee was constantly complaining about Meadows-East being unfair.' She felt she contributed a very poor morale of shift on 11-7: 2: A complaint had been received during the tenure of previous supervisor that she was engaged in card playing with M.A. from PC. Mrs. Barnett was aware -that PC had' been -uncovered -for a con- siderable length of time. On further investigation of this employee, it was learned from Mrs. Diehl, 'Relief '11=7 Supervisor, 'that Mrs. Barnett was not happy at Meadows-East. Due to the length of service of employee, recom- mend transfer to days for closer supervision and de- termination of attitude. • • Let it be written-two other supervisors were present-that Mrs: Barnett insisted she was fired. I reiterated that she was being reassigned to days to 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determine if the above.allegations were true. She 'stated,she would not come to days. Next, Grieshaber was called and confronted by Becker with. much the same allegations, and told her that she was 'being transferred to the day shift. Grieshaber also protested the, transfer. and refused- to accept. it. Becker re- iterated the transfer and told Grieshaber that she was -re- assigned effective Monday, January 11, and that she could clock out. Grieshaber replied, "And you may go to hell." Both Grieshaber and Barnett left the premises. A ;memo was prepared by Becker about Grieshaber read-- ing: . The following statement was read to :employee and employee encouraged to discuss the contents: The following problems- were brought to_ my. at- tention during the resignation and exit interview of Judy Klotz; LPN; 11-7 Supervisor: . I-.- Morale- was very bad on this shift and this ,was due to-the-above employee's- poor attitude toward Meadows-East. - • - - . ' 2. She [Mrs. Grieshaber] had informed the new., supervisor -',that she had walked into a "hornets next"[sic]. 3. Employee. had, left T.C. - unattended for a period of time. - Since the nurse had been here -such- a short time and was obviously' intimidated ,by this employee, she was reluctant to -come forth. and engage this em- ployee in disciplinary measures. ' I ' . I approached Mrs. Diehl, Relief Supervisor, and discussed the matter with her and.she, informed me that Mrs. Dale had also discussed this problem of -.leaving P.C. unattended with,Mrs. Diehl and it was - becoming'a serious problem. . During the tenure, of the .last supervisor, Mrs., Herman, it had been reported to me by a peer that Mrs. Barnett and Mrs.. Grieshaber had played cards on IC-1 leaving -PC"unattended for a considerable. .length of time: It was impossible for me -to follow; this allegation at the time because the nurse had re- signed when she was confronted with the problem that she was allowing sleeping on'her shift. . In.lieu of the above allegations,-it appears to me that in fairness to the - employee, "the overall' morale 1. of 11-7 and-the safety of the-P.C.-residents; this em- ployee-is to be reassigned to days'for closer supervi- sion. At this time she will have an opportunity to demonstrate her loyalty W! the facility. and her de- pendability. • • ' . - Finally, .Jewell was.called in; however,- Jewell accept- ed the transfer and began to work. the. day shift begin- ning Friday; -January • 8. - Later on - the same night, of- January, - 6, Grieshaber called- the facility and spoke to Diehl, .who had assumed the nursing supervisor's position on the -night shift after Klotz' resignation. Grieshaber asked if she had been fired since Becker had asked her to punch out:. Diehl. told .her that, she had not been -fired, and- Grieshaber replied that she would be in that night (January,7) for the nightshift and thereafter and hung up before Diehl could respond. Diehl testified that she was surprised by the call since Grieshaber knew.that she had been rescheduled to the day shift. Diehl made a note of this call and slipped it under' Becker's door before she left work at the end of the night shift. . The next morning Diehl called Becker and verbally re- ported her conversation with Grieshaber. . On the evening of January 7, Becker called Diehl and told her -to expect Grieshaber and Barnett to come in that night and to be prepared for it. Becker told Diehl to call her if they came in. About 11 p.m. when Diehl came to work, Grieshaber and Barnett had arrived at the facil- ity. Diehl called -Becker who advised her that she and Everson (who was still present from the p.m. shift) were to tell them'that they were not scheduled to work and to leave the facility. This was done. However, when Diehl asked Grieshaber and Barnett to leave the facility, Grie- shaber responded that they had spoked to Finneran who had told them that they could work-as scheduled: Diehl called Becker and reported this' conversation. Becker told Diehl that she would get right back to her where- upon Becker called Finneran. Finneran told Becker that she would take care of it and then Finneran called Diehl at the facility and asked to speak to either Grieshaber or Barnett. Barnett came to the phone. Finneran asked why they were at the facility and Barnett said that she had been told by Grieshaber that Finneran had said that it was all right for them to come in. Finneran told Barnett that this .was not the case and that she did not appreciate, being dragged, into this -situation-in that way.' Barnett asked if they had been fired. Finneran told them that they had not been fired but that they were not to work that, night and were to report to her office at' 9 a.m. the next day.or she would assume that they had terminated themselves - During the last part of her conversation with Fin- neran, Barnett had pushed down a button which acti- vates the loudspeaker system in the, facility. That part of the ,conversation, lasting about 1 minute, was broadcast throughout the facility. This was done without, Finner- an's knowledge or consent. Barnett testified that she put the,conversation on the loudspeaker because she wanted somebody else out there "to hear that we hadn't done anything wrong.". In _a telephone conversation shortly thereafter, Diehl told Becker what Barnett had done and Becker called - Finneran and gave her the information. Finneran then told Becker to come to her office at 9 a.m. the following day for the meeting with Grieshaber and Barnett. The-next day, Friday, January 8, Grieshaber and Bar- nett came to the nursing home about 8:45 a.m. They waited until approximately 9:10 a in. and when Finneran had not appeared, they left. Finneran arrived about 9.10 a.m. and was advised that' Grieshaber and Barnett had been. there and left. When it became clear that Grie- S Grieshaber- had called Finneran earlier in the day, about 11 am to ask if they (Grieshaber and Barnett) were to come in that day Finneran, not having spoken to Becker as yet and not knowing whether the deci- sion to transfer them had been been accomplished, asked if they were scheduled, to work. Finneran told her that they were to work as sched- uled . MEADOWS EAST INC shaber 'and Barnett were not returning , Finneran. -and ' Becker met to review the situation . At Finneran's re= quest, Becker brought the _ employee folders for Grie- shaber and Barnett, as well as memos for the events of the prior 2 evenings . It was during this conversation that Becker recommended discharges of Grieshaber and Bar- nett. This recommendation was also made in the form of longhand notes submitted to Finneran at this time. Ac- cording to Becker and Finneran, the longhand recom- mendations were later reduced to typewritten form and signed by Becker on Wednesday, January 13 (R. Exhs. 4 and 5). - ,As she was meeting with Becker, Finneran -was at- tempting to contact Grieshaber and Barnett by . tele- phone, since as Finneran testified, "I was preparing ter- minations for these girls and I wanted to talk to them." About 1 p.m., Grieshaber returned Finneran's call. During this conversation, Finneran asked why they had reported for work knowing that they,were not to be there. Grieshaber responded that she thought that Fin- neran had said that they were to be there. Finneran also asked why the conversation was put on the public ad- dress system and Grieshaber responded, "Because we wanted everybody to know what was happening to us." Finneran said that she, wanted to. meet with them- and Grieshaber said she could not talk then because, they' had an appointment, that she would get back to her later that afternoon: However, Grieshaber did not , call 'back. Becker was in Finneran's office during this conversation and since Finneran was using a conferencing- phone, she was able to hear both sides of the conversation. Finneran testified that she was determined to fire Grieshaber and Barnett at 'that time. As Finneran testified, "By the .time she finished telling . me that the reason that they put this on the P.A System was because they wanted everybody to know what's happening-that's it. It's termination. I mean, these-it wasn't-that was not a, good reason to give me over the, telephone " ' ' Regarding the activities of Grieshaber and Barnett, it appears that, after leaving the • facility, ` Grieshaber and Barnett went to the State Human Relations Commission where they were referred to the Union. About 11:30 or 12 a.m. they went to the Union's office where they were 1325 NETT. WE ARE NOTIFYING YOU OF THESE NAMES TO AFFORD THESE EMPLOYEES PROTECTION UNDER THE NATIONAL LABOR RELATIONS BOARD ACT. IF YOU ,HAVE` QUESTIONS PLEASE CONTACT ME AT THE LOCAL UNION. ' It is undisputed that neither Grieshaber. nor Barnett appeared at' the facility for work on the a.m. shift on Monday, January _11, only leaving word Oh Sunday, Jan- uary 10, that they were going to go to "the Department of Mitigation [sic] for Labor Relations" in Frankfort, In- diana On Tuesday, January 12, Barnett and Grieshaber ap- peared about 6:20 a.m. and began soliciting employees to join the Union and passed out union authorization cards. Grieshaber had previously been scheduled for work on that day. Barnett was not scheduled to work.. When Finneran arrived about 6:45 a.m she observed Grieshaber and Barnett near the "timeclock and called them into her office. Also in attendance were Becker and Diane Mover, assistant nursing director. Finneran asked Barnett if she would'take a seat outside the office while she spoke 'privately to Grieshaber. However, they insist- ed that they remain together. Finneran testified that she didn't know what to do about this because we have never made it a practice at Meadows East to, coun- sel -employees on a termination matter together, I feel like it's a private matter. Secondly, we'd never dealt with a union before. I didn't know what was our, rights, what their rights were, what their 'rights were,' or anything else, be-' cause, I'd only got this telegram on Saturday. So I don't know `whether that 'I'm--should talk to them together or shouldn't talk to them together. I don't- know-you know, what's to be done about this. At this' point, Finneran.decided to write each a suspen- sign letter, which she did. The substance of•both letters is the same. The letter signed by Finneran reads: As you have,requested'to be' counselled in group with another employee, a measure which is not clearly defined in the employee handbook, this will verify that you_'ar'e on suspension pending a com- plete investigation of your requests. A complete in- vestigation of your actions, Jan. 6, 7 and 11, 1982 will also-be made,& a.final resolution.' A tentative date for discussion of the Administra- tions findings & resolution has been agreeded [sic] on Jan. 25;'-1982 at-10 a.m. You have stated that you contact me' if 'you need to change this, date. You may, not return to work before `you meet with me. referred, to Business Agent John Wientjes. Since. Wientjes was unavailable,' they went,-to lunch at which time Grieshaber returned Finneran's call, as noted above. After lunch about 1:30 p.m.' they spoke to` Wientjes about organizing Respondent's employees. They 'both signed union authorization cards and- were given .about a. • dozen authorization cards to distribute. Wientjes also-ad- vised them that he.would'send a`telegram to-Respondent on the following day,_'Saturday; January 9. A', telegram was delivered'on that date to the nursing home facility at 8:46 a.m. Finneran saw it'abouf'9:30 a'.m.,'the'tele_gram reads: THIS IS TO ADVISE YOU THAT THIS LOCAL-UNION IS ACTIVELY ENGAGED IN AN ORGANIZING.CAMPAIGN AT MEADOWS EAST NURSING HOME. THE COMMIT- TEE WHO IS WORKING WITH THE LOCAL UNION IN THIS CAMPAIGN .,ARE TWO ' OF, YOUR EMPLOYEES; ONE HELEN O. GREISHABER AND MARGARET' BAR- Finneran testified= that' the `January 6 date. in the letter refers to their refusal-to accept' the'shift transfer; January -7 refers to the loudspeaker incident; : and: January 11 refers to their failure to report for work as scheduled since she felt an appointment at Frankfort 'was not an excuse to `miss -work:-Barnett and Grieshaber' were given copies-of the suspension -letter -and'they left. 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Finneran contacted Respondent's labor re- lations counsel about the rights.of Grieshaber and Bar- nett to be counseled separately and she was told that they could be terminated without any counseling at all. He suggested they be sent termination letters which Fin- neran sent did on January 13, 1982. The'letters, which were identical, read:. We hive now completed our' investigation of your actions arising out of your employment with The Meadows.East. As a result, Meadows East has terminated you as of the last day you worked, Janu-. ary 6, 1982. Your final paycheck will be mailed to you within the next few days. If you wish to discuss this matter, you' may con- tact me by phone to set up an appointment. • While it is not our parctice [sic] to discuss an employees status in the presence of another employee, I will agree to meet with you and Peggy together as you have requested. Neither Grieshaber nor Barnett thereafter requested or. met with Finneran for any further discussion of the matter. 2. Sleadd's alleged threat As noted above, Finneran received a telegram from the Union on Saturday, January 9. On the same day, she contacted James Sleadd, one of the owners, who asked her to arrange for a meeting of employees. on all of the shifts. That afternoon, he spoke to a combined group of first- and second-shift employees and later to the third shift separately. Teson, a third-shift employee, testified - that they were told by .Sleadd in - essence that if the Union came in, he would have to "close down the facili- ty because the Union would demand more than the Re- spondent could afford." Sharon Wilson, 'a nurses aide on the second shift, testified that Sleadd told the employees that if the Union came in he would close down the facili- ty and move the -patients to another home. Another third-shift employee, Reschelle Hardin, testified that Sleadd told the third-shift employees that if the Union came in he would close the facility.. Finneran who also attended the meetings testified that Sleadd told the em- ployees, inter alia, that "If a Union came in and demand- ed certain things of us, that if we could not afford them, they would have no-they, would have to, close the doors. Monetarily-if they made, certain monetary re- quirements that we could not afford, then' we would have no 'choice but to close the doors, is what he said." Sleadd himself did not testify at-the hearing. 'Having re- viewed the 'testimony about this incident, in light of the credibility criteria noted above, arid noting particularly Sleadd's failure to testify, I am persuaded that Sleadd did represent„ to .the employees that if the Union succeeded in organizing the employees the facility would be closed. 3. Respondent's no-solicitation rules Respondent -has maintained in effect for several years an "Employees Manual" which contains prohibition against solicitation at the facility, and a rule against dis- cussing paychecks. The first, solicitation rule appearing, on page 14 of the manual reads. SOLICITING: SOLICITATION OF ANY KIND OR THE SALE OR DISTRIBUTION OF MATERIALS, ETC., OTHER THAN SPECIFICALLY AP- PROVED BY THE ADMINISTRATOR IS PRO- HIBITED. THIS INCLUDES THE FOLLOW- ING ACTIVITIES: 1) RAFFLES; 2) POOLS; 3) COLLECTIONS; 4) SALE OF GOODS AND SERVICES (TUPPERWARE, AVON, ETC.); 5) = DISTRIBUTION OF LITERATURE ON PREM- ISES. - FAILURE TO COMPLY WITH THE .ABOVE POLICY MAY RESULT IN IMMEDIATE DIS- MISSAL. A second prohibition against solicitation appears at page 26 of the manual under the heading "Employee Code Of Conduct" which also provides that violations thereof "will constitute cause for discharge." This prohi- bition reads: SOLICITING, COLLECTING ' FUNDS, AND/- -OR CIRCULATING LITERATURE OF ANY NATURE, ON NURSING HOME PROPERTY DURING WORKING HOURS WITHOUT THE APPROVAL OF THE ADMINISTRATOR. The rule against discussing paychecks appears under the heading "DISMISSAL" as a part of the section cap- tioned ','Minor Offenses" which provides for "immediate discharge" upon receipt of three warnings for such "minor offenses." - B. Discussion and Anaylsis 1. Threat io close the facility As noted above, -I have concluded that Sleadd, an owner of the Respondent, in a talk given to employees on January 9 told them, in essence, that if they selected the Union to represent them the facility would be closed.- Such •a representation made by an official of the Re- spondent constitutes a threat of economic reprisal by Re spondent in the event that the, employees obtain union representation. Since employees have a right to organize under,the provision of.Section 7 of the National Labor Relations Act, free from employer interference, by threat or otherwise, I conclude that 'Sleadd's remarks violate Section 8(a)(1) of the Act... . 2: The no-solicitation and check discussion rules It is clear, as a'matter of Board and court precedent, that an employee may not prohibit solicitation or distri- bution on nonworking time in nonworking areas. In the instant case, the prohibition in the -first no-solicitation rule ran to "any kind" of solicitation unless approved by the administrator,, apparently anywhere on the premises of the facility. MEADOWS EAST INC 1327 With respect to the second no-solicitation rule, the lan- guage is modified somewhat to restrict solicitation and distribution "during working hours" without approval of the administrator This leaves an ambiguity as to whether or not solicitation would•be permitted-during other than working hours, such as breaktime or other nonworktime The Board has held that absent a clarification by the em- ployer of -the meaning of the phrase "working hours" a rule prohibiting solicitation or distribution during "work- ing hours" is presumptively unlawful. Accordingly, I conclude that both no-solicitation rules are unlawful since they inhibit the organizational rights guaranteed to emmployees under Section 8(a)(1) of the Act. T.R.W. Bearings, 257 NLRB 442 (1981). The rule prohibiting employees from discussing their paychecks is likewise unlawful; an employee's wage is 'clearly a condition of employment and an all inclusive type of prohibition against discussing wages unduly re- stricts the rights of employees to collectively consider, comment, or deliberate on a common working condition. Obviously a blanket prohibition against collective verbal consideration of a working condition is overly broad and violates Section 8(a)(1) of the Act 3. Suspensions and discharges of Grieshaber and Barnett The General Counsel- alleges that Grieshaber and Bar- riett were transferred by Respondent from the third shift to the first shift because they engaged in union and pro- tected activity and Respondent wanted to discourage such activity Respondent contends that Grieshaber and Barnett were transferred to the day shift to provide closer supervision of their activities. , More specifically, the General Counsel appears to sug- gest that Grieshaber and Barnett's participation in writ- ing a note to Becker complaining about the "get up" list was the protected activity which resulted in their trans- fer Respondent contends that the abrupt departure of a new supervisor, Klotz, prompted an investigation which confirmed misconduct by Grieshaber and Barnett, as well as Jewell, which included sleeping and card playing on the shift and otherwise contributing to "morale" problems on the shift as outlined in greater detail above. Without passing on the fairness of the action taken by the Respondent in effecting the transfers, it is clear that the transfers were not related to either protected con- certed activity or union activity •First, assuming that the note written by Grieshaber to Becker was protected con- certed activity, the record will not support any finding that Becker or any other official of the Respondent ever saw the note. Becker's unrebutted testimony is to"the effect that she had no recollection of the note As to the union activity, it is clear that Grieshaber and Barnett did not even approach the Union until Friday, January 8, after the transfers of Wednesday, January 6, were made Respondent's first knowledge of union activity was the . telegram from the Union received by Finneran on Satur- day, January 9. Thus Respondent, not being aµare of either protected concerted or union activity by Grie- shaber and Barnett prior to the transfer, could not have been motivated by those considerations in making their transfers. The General Counsel also alleges that Respondent's suspension and discharge of Grieshaber and Barnett were prompted by their union or protected concerted activity The record does not support this contention. The facts disclosed that after Grieshaber and Barnett were advised by Becker on January 6 that they were being transferred, they attempted, despite having been transferred, to return to work the following night, January 7, on the same shift.. Grieshaber attempted to explain this by saying that Finneran had authorized it, which was not the case. When Barnett spoke to Finneran on the tele- phone to resolve the matter, Barnett switched the con- versation onto the facilities public address system. A meeting was arranged .for 9 a.m. the following day, January 8. Barnett and Grieshaber left at 9.10 and Fin- neran arrived shortly after. When Grieshaber returned Finneran's call she told Finneran that the prior night's conversation was put on the public address system "be- cause we wanted everybody to know what was happen- ing to us " - - Finneran credibly testified that it was at this point that she decided to terminate them both for the reasons noted above, thereby concurring in Becker's recommendation of termination made earlier that day.6 Finneran intended to advise Grieshaber and Barnett of their termination in an "exit interview." However, nei- ther Grieshaber nor Barnett appeared as scheduled on the day shift on Monday, January 11. When they did appear on Tuesday, January 12, Finneran attempted to speak to them individually.' When they refused to meet with Finneran individually, Finneran did not know what to do since she felt that termination was,a,private matter, but because the Union was involved she was concerned about the legal rights of the parties. Being unsure of the legalities, she decided to write suspension letters, despite the fact that it had, been her intention to discharge them. She decided to' consult Respondent's labor relations con- sultant, who advised Finneran that they could be dis- charged without being counseled, either separately or to- gether, 'whereupon Finneran discharged them by letters dated January 13. Based on these` facts, and a review of the entire record, I am satisfied that Finneran decided to discharge Grie- shaber• and Barnett on January 8 and, further, that their misconduct fully warranted that decision. In my opinion, the interviews on Tuesday morning, January 12, were being conducted solely to. advise them of that decision and therefore were not "investigatory" within the mean- ing of .the Weingarteir'case.e • Nor 'can it be said that they were suspended because' they insisted on being inter-- viewed 'separately', They were suspended because Fin- neran was uncertain about the legalities of. the request 6 It is undisputed that the, first knowledge Respondent had of any union actrvrty on the part 'of Gneshabe'r and Barnett came when Fin- neran received 'a telegram' from the Union on the morning of Saturday, January 9 Despite language in the suspension letter of January 12, suggesting that the matter was still under investigation; I, nonetheless, conclude that the decision had been made and that such language represents an exces- sively cautious approach to the matter caused by Finneran's lack of knowledge about the legalities affecting their terminations s NLRB v J Weingarten . 420 U S 251 (1975),, 1328 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD since a union was now involved. Finneran was essential- ly postponing their terminations because she wanted to ascertain that the discharges were being properly admin- istered and when she was advised that she could dis- charge them without any interview at all, she did so. In these circumstances, I conclude that the suspension and the discharge of Grieshaber and Barnett were not motivated by their union activity nor their insistence. that they be interviewed separately.9 Accordingly, their sus- pensions and discharges did not violate Section 8(a)(3) of the Act, and I shall recommend that these allegations be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section III, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and from infringing in any like or related manner upon its employees' Section 7 rights and that it take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact, and the entire record in the proceeding, I make the following CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a -labor organisation within the mean- ing of Section 2(5) of the Act. 3 By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices proscribed by Section 8(a)(1) of the Act On these findings of fact and conclusions of law. and on the entire record, I issue the following recommend- edio ORDER' The Respondent, The Meadows East, Inc, Louisville, Kentucky, its officers, agents,- successors, and assigns, shall 1. Cease and desist from 9 Moreover, even if they were suspended for-refusing separate inter- views, where the purpose of the interview was purely disciplinary, as I have found, they had no legal right to insist on meeting together 10 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (a) Threatening to close the Respondent's health care facility in the event the employees select union represen. tation. (b) Maintaining in effect or enforcing any rule which prohibits employees from discussing wages or paychecks among themselves - (c) Maintaining in effect or enforcing any rule which unlawfully prohibits employees from soliciting or distrib- uting during working hours. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. - 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at facilities in Louisville, Kentucky, copies of the attached notice marked "Appendix."i i Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous- places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. - If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " - APPENDIX - NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to close our health care facility in the event that the employees select' union representa- tion WE WILL NOT maintain in effect or enforce any rule which prohibits employees from discussing wages or paychecks among themselves. WE WILL NOT maintain in effect or enforce any rule which unlawfully prohibits employees from soliciting or distributing during working hours. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in. Section 7 of the Act. THE MEADOWS EAST, INC.